AU Reforms and the imperative of ensuring PRC compliance with Assembly decisions

By Olu Ibekwe

In 2016 African leaders decided that Institutional Reforms of the African Union (AU) was urgent and necessary given the role the AU is expected to play in driving and achieving Africa’s Agenda 2063 vision of inclusive economic growth and development.

President Paul Kagame of Rwanda, was mandated by the Assembly of Heads of State of the AU in July 2016 to lead the process. He in turn appointed a nine member advisory team to assist him in the assignment.

After various studies and analyses of the AU, the team identified that the Union faced several major challenges and then embarked on consultation with relevant stakeholders in the continent. The outcomes of these consultation was the identification of five (5) focal areas as being key for transforming the Union and thus requiring urgent action. These are: Focusing on fewer priority areas with continental scope, Institutional Realignment, Connecting the AU with African Citizenry, Management of AU at the political and operational levels and Sustainable Financing of AU programs.

The key priorities of each reform area were defined, such as political affairs, peace and security, economic integration and global representation, the strengthening of organs excluding policy organs (Executive council and Assembly), and the empowerment of women and youths.

On realigning African Union institutions in order to deliver against those priorities, the 28^th Ordinary Session of the AU Assembly in January 2017, decided that the Permanent Representatives Committee’s  (PRC) 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.

Regrettably the PRC is yet to comply with this Assembly decision after almost four years.

Article 21 of the Constitutive Act, provides that the PRC shall be composed of Permanent Representatives of Member States to the Union and is charged with the responsibility of preparing the work of the Executive Council and acting on the Executive Council’s instructions.

However, an examination of its Rules of Procedure shows that it includes powers beyond that stipulated by the Constitutive Act. For instance, while Rules 1(a) to (e) can be said to flow from the powers granted by the Constitutive Act, same cannot be said of Rules 1(f) and following as they appear to be similar to the powers granted to the Pan African Parliament by Articles 3 and 11 of the Protocol to the Constitutive Act of the African Union Relating to the Pan African Parliament (PAP).

The PRC through its rules of procedure acquired such powers as the consideration of the budget and financial matters of the Commission; consideration of the financial report of the Commission; consideration of the report of the auditors; consideration of report on the implementation of the budget of the Union. These powers contained in Rules 4(f) to 4(k) could not have flowed from the powers conferred on the PRC by Article 21 of the Constitutive Act neither could they be considered ancillary to its duty of preparing the work of the Executive Council whose powers are contained in Article 13 of the Constitutive Act.

Interestingly, the consideration of the budget and financial matters of the Commission; consideration of the financial report of the Commission; consideration of the report of the auditors; consideration of report on the implementation of the budget of the Union are not part of the statutory responsibilities of the Executive Council as enumerated in Article 13 of the Constitutive Act. Rather, they are powers reserved for the PAP which is expected to submit its recommendations to the Assembly for approval. It is the Assembly that delegated its authority to the Executive Council.

So, if the Executive Council which has the delegated authority to consider the budget and financial matters including the audit reports of the Union did not deem it fit and proper to list such functions in its rules of procedure, what then is the justification for the PRC listing them in its rules of procedure?

For purposes of comparison, the Committee of Permanent Representatives (CPR) of the European Union (EU) is comparable to the PRC considering that the design of the AU organs is similar to that of the EU with comparable organs. The CPR prepares the agenda for the Ministerial Council of the EU (the equivalence of the Executive Council of the AU) and subordinates itself to the Council and limits its jurisdiction to procedural issues. It serves 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 including PAP!

To put the issue in proper context, we all know that generally, an organization’s rules of procedure consists of a set of rules, ethics and customs which governs the sittings and other operations of the organization and how that organization is administered. In other words, it contains the manner that such an organization exercises the authority or powers granted by the enabling law or statute. A rule of procedure is not an avenue to acquire substantive powers beyond that granted by the law that established the organization.

It is therefore against the provisions of the Constitutive Act for the PRC to have enlarged its powers through its Rules of Procedure to include powers granted to the Pan African Parliament as outlined in Articles 3 and 11 of the protocol establishing PAP which was ratified by all the fifty-five (55) AU member states.

Such infringement on the powers statutorily granted to PAP has adversely affected the institutional growth of the parliament. Worst still is the fact that PAP has unfortunately become an organ under PRC oversight.

This turn of events is inconsistent with the vision of the founding fathers of the African Union in the establishment of PAP. How can PRC through its rules of procedure, override the provisions of both the Constitutive Act and the PAP Protocol?

By failing to comply with the Assembly directive to review its Rules of Procedure after almost four years, the PRC has demonstrated that it is arguably the most powerful organ of the AU. It has been able to accomplish this because it prepares the meetings of the Executive Council including the agenda and draft decisions and makes recommendations on issues on the agenda of the Executive Council. And because the Council has no time to meaningfully review what is submitted, it usually ends up adopting them. In effect, any item that the PRC decides not put on the agenda of the Executive Council with supporting draft decision will never see the light of the day. So not only is the PRC in violation of the Constitutive Act and the PAP Protocol, it has also in effect, vetoed the Assembly decision directing it to review its rules of procedure.

It is a matter of record that more than ninety percent (90%) of all AU legal instruments adopted by the Assembly including the PAP Revised (Malabo) Protocol, some of which date back to 2001 are still awaiting ratification by member states partly because the PRC abandoned its statutory responsibility of facilitating communication between the AU and member states in preference for an ambitious role of oversight over other organs.

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 wrote about how members of President Kagame led 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.

The time has therefore come for the PRC to be impressed upon to comply with the 2017 Assembly decision directing it to review its rules of procedure to be in line with the mandate provided for in the Constitutive Act. The PRC should concentrate on facilitating 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. It should be assisting the Executive Council in ensuring the ratification of outstanding AU legal instruments, especially the Malabo Protocol.