v
Says
only the Court of Justice and Assembly of Heads of State can handle the matter
v
Implication
is that PAP may have to revert to Executive Council decision DOC.EX.CL/1028(XXI)
The African Court on Human and Peoples’ Rights
has declined jurisdiction to issue advisory opinion on a request by the Clerk
of the Pan African Parliament (PAP),
Vipya Harawa to give Advisory Opinion on the application of the principle of
regional rotation in electing members of the PAP.
The
Advisory Opinion was delivered by the Court on Friday July 16 at 11 am in
Advisory Opinion No. 001/2021.
Mr.
Harawa’s request
arose from the suspension on 1 June 2021 of the election of the Bureau of the PAP. The incident occurred after the
election process was disrupted due to an argument over the application of the
principle of regional rotation in the election of the Bureau.
He informed the Court that, there is
currently a strong dispute within PAP
regarding the interpretation of the Protocol
to the Treaty Establishing the African Economic Community Relating to the
Pan-African Parliament and the Rules
of Procedure of PAP with respect to the election of the Bureau of the Parliament.
Harawa stated that the said dispute was
mainly on whether the above mentioned instruments prescribed for the
application of the principle of regional rotation adopted by the African Union (AU), and whether the
said principle is binding and enforceable when electing the Bureau.
On the behalf of PAP, Harawa
requested for an opinion from the Court on the following questions:
a.
Whether the regional rotation principle observed by the AU in general, is
stipulated in Rule 12 of the PAP Protocol and Rules 14-16 of the Rules of
Procedure when electing the Bureau or not.
b.
And if rotation is not stipulated in the Protocol and Rules of Procedure of
PAP, is the principle and practice of rotation binding and enforceable when the
PAP elects its Bureau members (President and Vice-President)?
c.
And whether if the elections of the Bureau are conducted in accordance with the
Protocol and Rules of Procedure as they stand currently, that is, without
following regional rotation, such elections would be valid and compliant with
the PAP Protocol and Rules of Procedure or not.
d.
And whether the Court is of the opinion that the Rules of Procedure will have
to be amended to make regional rotation binding and enforceable or not.
e.
And if the Court is of the opinion that to be binding and enforceable, the
Rules of Procedure must be amended, whether the elections of the new Bureau
should be conducted first to facilitate the amendment of the Rules or not.
In its ruling, the Court found that the
legal instruments referred to by Mr. Harawa
“are not human rights instruments given that the clauses of the PAP Protocol
and its Rules pertaining to the principle of regional rotation do not provide
subjective rights for individuals or groups, nor do they prescribe obligations
from which such rights may be derived but rather pertain to the administrative
operation of PAP as they relate exclusively to the composition of its Bureau
and how the elections of the Bureau Members should be conducted”.
The Court further found that, the “mere
reference to human rights in the preamble and Article 11(1) of the PAP Protocol
does not suffice to make it a human rights instrument as these clauses do not
enunciate individual subjective rights or prescribe corresponding obligations
for State Parties to the instrument. The Court took note of the Author’s
reference to the Charter and the Democracy Charter and found that, their
provisions relating to elections and participation thereto are expressly said
to apply to citizens and in respect of elections conducted at the national
level within AU Member States and not to how elections of the PAP Bureau
should be conducted”.
“In light of these considerations,
the Court found that it did not have material jurisdiction to entertain the
Request given that the relevant instruments were not human rights instruments
within the meaning of Article 4(1) of its Protocol”.
The Court therefore opined “that the
paramount importance of the mandate entrusted to PAP and the fact that the
present Request involves a situation that threatens the smooth operation of the
Institution as it faces a legal quandary, demanded that PAP be as to what legal
means could be effectively utilized to resolve the predicament that it faces”.
On this point, the Court opined
that, “under Article 20 of the PAP Protocol, the Court of Justice of the
African Union has jurisdiction to interpret the PAP Protocol; that the Protocol
establishing the Court of Justice had entered into force since 2009 even though
the said Court has yet to become operational; that, however, it cannot exercise
jurisdiction merely because the legally empowered Court has yet to start its
operations”.
The Court further opined that, based
on the same provisions of the Protocol establishing the Court of Justice,
pending the operation of the latter Court, the Assembly of Heads of State and
Government of the AU is empowered to interpret the PAP Protocol. The Court
found that, due to the above, it could not therefore exercise jurisdiction on
the question arising in the present Request without overstepping jurisdictional
boundaries vis-à-vis both the Court of Justice and the Assembly.
The Court, for these reasons, found
that it did not have jurisdiction to give the Advisory Opinion requested.
With the Court’s decision, the issue
of rotation of the presidency of PAP is now the exclusive decision of the
Assembly since the Court of Justice has not been constituted. African Parliamentary News recalls that
the Assembly had delegated this authority to the Executive Council. PAP will
therefore have to revert to Executive
Council decision DOC.EX.CL/1028(XXI) issued in July 2017 which called “on
the Pan African Parliament to apply
the African Union values, rules and regulations in managing all activities of
the organ, including rotation of the Bureau and Presidency”.
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