The envisioned role of the Pan African Parliament in the adoption of AU Legal Instruments

By Olu. Ibekwe (oluchukwuibekwe@gmail.com)

The 33^rd Ordinary Session of the Assembly of Heads of State and Governments of the African Union (AU) on February 9 – 10 (at Addis Ababa, Ethiopia) adopted some legal instruments on the recommendation of the Executive Council. They include:

a)   Draft Statute of the African Peer Review Mechanism;

b)   Draft Revised Protocol on Relations between the AU and the Regional Economic Communities (RECs);

c)   Draft Statute for the Establishment of African Centre for the Study and Research on Migration;

d)   Draft Statute for the Establishment of African Migration Observatory and; 

e)   Draft Statute for the Establishment of Continental Operational Centre in Sudan for Combating Irregular Migration.

Additionally, the Assembly delegated to the 37th Ordinary Session of the Executive Council, its authority to consider and adopt Draft Legal Instruments that will be considered by the 5th Extraordinary Session of the STC on Justice and Legal Affairs.

Interestingly, since her transformation from the Organization of African Unity (OAU), the African Union appear not to appreciate the need for legislative input by the Pan African Parliament (PAP) before the adoption of legal instruments. This is this inconsistent with the vision of the founders.

Article 5 of the Constitutive Act of the African Union, established the ten organs of the Union, including the Pan African Parliament (PAP) and the Specialized Technical Committees (STCs), one of which is the STC on Justice and Legal Affairs. The functions of the STC on Justice and Legal Affairs are clearly defined in the Act and in no way intended to be an alternative to, or compete with the PAP.

The Pan African Parliament, third in hierarchy as per Article 5 of the Constitutive Act, is the legislative organ of the AU. Its composition, powers, functions, and organization are defined in a Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament which was duly ratified by a majority of the member states. Article 11 of that Protocol provides that PAP shall until the ratification of a new protocol, exercise advisory and consultative powers. Currently, the Protocol provides that PAP shall have the authority to “examine, discuss or express an opinion on any matter, either on its own initiative or at the request of the Assembly or other policy organs and make any recommendations it may deem fit relating to, inter alia, matters pertaining to respect of human rights, the consolidation of democratic institutions and the culture of democracy, as well as the promotion of good governance and the rule of law.”

In order to facilitate the effective implementation of its mandate, PAP adopted a Resolution (PAP/P(3)RES/03(1) on October 18, 2012 to align its Permanent Committees with the African Union Commission (AUC) Commissions and Departments “to ensure relevance, synergy, legitimacy and effective implementation of the policies and objectives of the African Union”. PAP Permanent Committees thereafter on March 11 – 15, 2013, held joint meetings with their AUC counterpart Commissions and Departments in Addis Ababa, Ethiopia.

The objectives of those meetings were to identify the areas of collaboration and mechanisms of engagement between the PAP Permanent Committees and the AUC Commissions and Departments.

Having developed a working relationship with the AUC Commissions and Departments as far back as 2013, one would have expected that draft legal instruments emanating from them would routinely be submitted to PAP in line with the vision of the founders of the AU for her legislative scrutiny before adoption by the Assembly.

It is therefore regrettable that notwithstanding the efforts of PAP at working in synergy with the AUC Commissions and Departments, legal instruments are still submitted to the Assembly for adoption without giving the Pan African Parliament the opportunity to perform its advisory and consultative role.

Currently, the African Union is made up of fifty-five (55) member states. This implies that the Executive Council, made up of foreign ministers of member states who are appointees of the various heads of state, are fifty-five in number. The Permanent Representatives Committee, made up of permanent representatives of member states to the AU and who are also appointees of the heads of state, are fifty-five in number. Same goes with the members of the STCs who are also appointees of the heads of state.

But the Pan African Parliament consists of parliamentarians elected from the national parliaments of member states. Each national parliament elects five members to represent her at the PAP which means up to 275 parliamentarians.

The implication is that PAP is arguably, the only organ of the AU that is made up of elected representatives of the African people which gives it democratic legitimacy to make input before AU legal instruments are adopted by the Assembly.

According to the PAP’s Rules of Procedure, the parliament meets in ordinary session, twice a year (May and October) lasting two weeks per session. PAP also holds Committee Sittings in March and August lasting up to one week each. This adds up to six (6) weeks of activity in a year (about 42 days), implying that it has more meeting days than most of the other organs. There is therefore no justification for side-lining the Parliament in the process leading to the adoption of legal instruments.

Therefore, allowing the participation of African people through their elected parliamentarians in the process leading to the adoption of AU legal instruments will enrich and add value to the process. It will also result in a more consultative outcome.

But for that to happen, the over bearing influence of the PRC must be looked into.

According to the Constitutive Act, the PRC is charged with the responsibility of preparing the work of the Executive Council. The African Union Commission is the AU’s Secretariat and undertakes the day-to-day activities of the Union. But the PRC in their Rules of Procedure, claim that it conducts the day-to-day business of the African Union (AU) although I am yet to find the basis for this claim in the Constitutive Act! And if I may ask, how can the AU have an AUC Chairman who is supposedly the Chief Executive Officer of the AU and a PRC that supposedly conducts the day-to-day activities of the Union?

In practice, the PRC prepares the agenda and even draft decisions for the meetings of the Executive Council which ends up being adopted hook, line and sinker. This is because the Executive Council sits bi-annually for less than two days per session and so, does not have the time to meaningfully deliberate and take decisions on the numerous complex issues submitted by the PRC for its consideration and approval.

In order words, the draft decisions submitted to the Executive Council by the PRC becomes the decisions of the Executive Council. This in turn, becomes the agenda and draft decisions of the Assembly which sits annually for less than two days and also, does not have the time to meaningfully consider and review whatever the PRC had submitted to the Executive Council.

The implication is that the PRC which sets the agenda and prepares draft decisions for both the Executive Council and the Assembly has in the process, become the most powerful AU organ despite being the seventh listed organ in Article 5 of the Constitutive Act. It is now the gate-keeper and clearing house for not just the Executive Council but also the Assembly, thereby assuming oversight over the other AU organs including the PAP in clear violation of the provisions of the Constitutive Act.

In my view, the PRC has turned out to be a selfish gate keeper because it has in the process, acquired so much power beyond the contemplation of the Constitutive Act. No wonder it claims to conduct the day-to-day business of the African Union (AU) on behalf of the Assembly and Executive Council.

The PRC should borrow a leaf from the Committee of Permanent Representatives (CPR) of the European Union (EU). This is because the design of the AU organs is similar to that of the EU with comparable organs. For example, the CPR of the EU is similar to the PRC of the AU and prepares the agenda for the Ministerial Council of the EU (the equivalence of the Executive Council of the AU). The CPR subordinates itself and limits its jurisdiction to procedural issues and serving the Ministerial Council as opposed to the PRC which exercises substantive powers and sees itself as an omnibus organ with oversight over all the other organs of the AU!

In November 2018 I published an article titled Restoring the Vision of the Founders of the African Union in the establishment of the Pan African Parliament where I narrated how members of then AU Reform Committee had in a meeting with the former South African President Jacob Zuma in 2018, blamed the tension between Rwanda and South Africa on the PRC which was accused of wanting to be in control of the AU reform process. A member of the reform team complained that the PRC members were feeling that the work should have been done by them and accused them (PRC members) of trying to sabotage it.

According to the Constitutive Act, the STCs are supposed to report to the Executive Council but in practice, they report to the PRC. And when the STC on Justice and Legal Affairs submits draft legal instruments to the PRC, it sits and deliberates on them instead of sending same to PAP which for now, has advisory and consultative powers.

In apparent recognition of how powerful the PRC had become, the 28^th Ordinary Session of the AU Assembly in January 2017, decided that the PRC’s Rules of Procedure should be reviewed and be in line with the mandate provided for in the Constitutive Act of the AU. The Assembly decided that the PRC should facilitate communication between the AU and the national capitals and act as an advisory body to the Executive Council and not as a supervisory or oversight body of the Commission. See Decision on the outcome of the Retreat of the Assembly of the AU on Institutional Reform of the AU: Assembly/AU/Dec. 635(XXVIII); Annex to the Assembly Decision on the Outcome of the Retreat of the Assembly of the AU on Institutional Reform of the AU.

Three years later, Assembly/AU/Dec.635(XXVIII) is yet to be implemented! Is anyone still in doubt as to how powerful the PRC has become?

Fortunately, the 33rd Ordinary Session of the Assembly in February 2020 (at Addis Ababa, Ethiopia) directed the Office of the Legal Counsel to examine the Legal Instruments and Rules of Procedure of AU Organs and identify areas of incoherence or conflict with other AU Legal Instruments, and advise AU Policy Organs on the amendments and alignment, as appropriate, and report to the 37th Ordinary Session of the Executive Council in July 2020. See Assembly/AU/Dec.757(XXXIII).

It is my considered opinion that reporting the outcome of this review to the Executive Council as directed by the Assembly entails passing it through the PRC, and so amounts to making the PRC a judge in its own matter!

However, to ensure the effective implementation of the outcome of the review by the Office of Legal Counsel, I respectfully suggest that the report should be submitted to the AUC Chairperson who as chief executive officer should assume the rightful duty of being the clearing house and coordinating office for all the other organs.

It is therefore my submission that until and/ or unless the PRC is restricted to the role envisioned by the founders of the AU as contained in the Constitutive Act and restated in Assembly/AU/Dec.635(XXVIII), the PRC will continue to usurp the oversight responsibilities of the Pan African Parliament. Only then will PAP be able to exercise her envisioned advisory and consultative powers before the adoption of AU draft legal instruments.