REVIEWING THE SHORTCOMINGS OF PAN AFRICAN PARLIAMENT’S REVISED PROTOCOL

By Olu Ibekwe (oluchukwuibekwe@gmail.com

On June 27, 2014, the 23^rd Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU) held in Malabo, Equatorial Guinea adopted a Revised Protocol to the Constitutive Act of the African Union Relating to the Pan African Parliament (PAP), also known as the Malabo Protocol.

To come into force, the Protocol must be ratified by twenty eight (28) member states. However, seven years after adoption, the Malabo Protocol has been ratified by only twelve (12) countries with sixteen (16) more ratifications to go before it will come into force.

But as shown hereunder, the Malabo Protocol has shortcomings that will hinder the transformation of PAP into a parliament of African people with power to make laws and with oversight over other AU organs. Let us see why.

1.  The Malabo Protocol failed to strike a balance between sovereign equality of member states and proportional representation in the composition of the Parliament. One of the objectives of the AU as articulated in Article 3(a) of the Constitutive Act is to achieve greater unity and solidarity between the African countries and the people of Africa. See also Article 3(g) (promote democratic principles and popular participation).

It is noteworthy that Article 2(3) of the Malabo Protocol provides that PAP shall represent all the peoples of Africa and the interests of African Diaspora. Additionally, one of the objectives of PAP according to Article 3(a) of same protocol is to give a voice to the African people and the Diaspora.

Unfortunately, Article 4 which made provision for the composition of the Parliament, made no mention of the African peoples for whom PAP was established. Rather, Article 4 talked about state parties. One then wonders how the parliament went from being representatives of African people to representatives of state parties.    

For the PAP to fulfill its mission of ensuring the full participation of the African peoples in the economic development and integration of the continent, membership/ representation must take into consideration, the population of the member states (that is, African people).

According to available population data, the combined population of Seychelles, Sao Tome & Principe, Cape Verde, Western Sahara, Comoros, and Djibouti is less than the population of Addis Ababa, Ethiopia; Johannesburg, South Africa; Nairobi, Kenya; Cairo, Egypt; Lagos, Nigeria; or Algiers, Algeria.

This means that there are more Africans in Nairobi or Cairo than there are in Seychelles, Sao Tome & Principe, Cape Verde, Western Sahara, Comoros, and Djibouti put together.

Africa has 55 countries with a population of about 1.3 billion people. However nine hundred and seventy (970) million people or seventy five percent (75%) of that population reside in the following 15 countries namely Nigeria, Ethiopia, Egypt, DR Congo, South Africa, Tanzania, Kenya, Uganda, Algeria, Sudan, Morocco, Ghana, Cameroon, Mozambique and Angola. Does it then not make sense that the composition of PAP which is supposedly a parliament of African people, should reflect this demographic reality?

And if I may ask, why were African Diaspora not represented in the composition of PAP and how then will their voice be heard? How will their interests be represented?

2.  PAP’s exercise of legislative mandate should not be subject to the discretion of another organ but exercised as a matter of routine. Article 8 of the Malabo Protocol designated PAP as the legislative organ of the AU but can only make model laws in areas determined by the Assembly. It also gave PAP the power to receive and consider reports of other organs as well as consider and submit opinions on draft legal instruments, treaties and other international agreements as may be referred to it by the Council or Assembly. Such a provision for a contingent exercise of legislative mandate by PAP should be cause for concern.

This is because in practice, it is the Permanent Representatives Committee (PRC) that prepares the draft decisions for the Executive Council. This ends up being adopted because the Executive Council does not have the time to meaningfully review what is presented by the PRC. The Executive Council in turn submits some of these as draft decisions to the Assembly which also ends up adopting them.

The implication is that in reality, it is the PRC that will end up exercising the discretion to decide what will be sent to PAP for consideration. And as experience has shown, the PRC will rather retain and exercise such legislative powers than refer them to PAP. A better and more acceptable arrangement would be that all AU legal instruments, treaties, international agreements as well as reports of other AU organs should be sent to PAP by the AUC Chairperson as a matter of routine prior to submission to the Assembly for final approva;.

Additionally, the Malabo Protocol should have assigned to PAP the responsibility of holding confirmation hearing for candidates seeking election to the office of the AUC Chairperson, Deputy Chairperson and Commissioners before approval by the Assembly as is the case with the European Parliament. Such a public hearing, streamed live on the various social media platforms, will give African people, the opportunity to participate in the process.

3.   PAP’s budget should not be subject to review and oversight by the PRC Article 15(2) of the current protocol states that PAP’s budget, drawn in accordance with the AU Financial Rules and Regulations shall be approved by the Assembly until such a time as PAP shall start to exercise legislative power. Although the Malabo Protocol has given legislative power to PAP, it did not grant financial autonomy as envisaged by Article 15(2) probably because the PRC was in control of the review process.

As noted above, the power given to the Assembly by Article 15(2) to approve PAP budget is in practice, being exercised by the PRC with the result that PAP parliamentarians have to appear and prostrate before the PRC, which is an inferior AU organ to defend its budget!

It would be recalled that In his presentation of the “Report of the Committee on Monetary and Financial Affairs on the Pan African Parliament’s Proposed Budget for the Financial Year 2020” at the Second Ordinary Session of the Fifth Parliament in May 2019, the late former Chairperson of the Committee Senator Mike Temple (Eswatini) condemned the humiliation that PAP goes through in having to present its budget to the PRC which is made up of Permanent Representatives of member states to the AU. According to late Senator Temple, the ambassadors are mainly career civil servants without national legislative experience, describing it as “belittling” to parliamentarians. He noted that although the Assembly of the Heads of State and Government had in 2017, decided that the Rules of Procedure of the PRC should be amended; the PRC was yet to implement the decision.

On this note, may I respectfully urge the PAP Committee on Monetary and Financial Matters to in memory of Senator Mike Temple, sponsor a resolution (pursuant to Article 15(2) of the PAP Protocol, Article 21(2) of the Constitutive Act (the functions of the PRC) and the decision of the Assembly in 2017 directing the PRC to amend its Rules of Procedure), informing the Assembly that PAP will no longer belittle itself by appearing before the PRC to defend its budget. Rather, it is the PRC that should appear before PAP to explain where in the Constitutive Act; it derived the powers enumerated in Rule 4 of its Rules of Procedure and why it is yet to comply with the 2017 Assembly decision directing it to amend its rules of procedure..

Article 15(2) of the Protocol gave the Assembly the power to approve PAP budget and it has understandably delegated this responsibility to the Executive Council. It is not fair and equitable for the Executive Council to further delegate this authority to the PRC which is an inferior organ to PAP as listed in Article 5 of the Constitutive Act. While PAP is listed as the third highest organ, the PRC is on the other hand, listed as the sixth organ.

4.   The allowances of PAP parliamentarians including the President, Vice Presidents and other officials of Committees should not be the responsibility of respective state parties. Article 10 of the current PAP protocol states that parliamentarians shall be paid an allowance to meet expenses in their duties. It did not specify whose responsibility it is to pay for those expenses.

However, Article 10 of the Malabo Protocol states that parliamentarians shall be paid allowances by the respective state parties. It went further to state that the allowances for the President, Vice Presidents, and other officers of Committees shall be the responsibility of the respective state parties. Something is definitely not right about this provision.

I humbly submit that the expenses and allowances of Parliamentarians should not be the responsibility of the respective state parties especially for the Bureau and officials of Committees. If I may ask, does it then mean that a parliamentarian must secure the consent and financial commitment of his or her home country before contesting for President or Vice President or Committee chairperson position?

It is also noteworthy that Article 5(1)(b) of the Malabo Protocol states that the representation of each State Party shall reflect the diversity of political opinions in each National Parliament taking into account, the number of members from each political party represented in the National Parliament.

We all know how politics is played in some African countries with respect to the treatment of members of the opposition parties in terms of funding. Is it not possible that we may have situations where parliamentarians from opposition parties in member states are denied funds to take care of their expenses or even delay the release to discourage or frustrate attendance? What if a member of opposition in a national parliament is elected President or Vice President or official of a Committee, will funding by the state party be assured?

Allowances and expenses of PAP Parliamentarians especially the President, Vice Presidents and officials of Committees should form part of the budget of PAP, drawn up in accordance with AU Financial Rules and Regulations to avoid distractions when members attend sessions.

It can therefore be reasonably argued that the ratification and coming into force of the Malabo Protocol will ensure that PAP represents the African people and play the role envisioned by the founding fathers of the African Union in the establishment of the parliament.