PAP Bureau Election: AU Decision on rotation and matters arising

The recent decision by the 39^th Ordinary Session of the Executive Council of the African Union (AU), 14 – 15 October 2021 at Addis Ababa, Ethiopia that only the Northern and Southern Regional Caucuses of the Pan African Parliament (PAP) shall be eligible to present candidates for the presidency of the continental parliament in the upcoming bureau election is in line with the African Union’s well established principle of rotation of offices among the five regions of the continent.

In reaching the decision, the Council recalled and reaffirmed its previous decision in 2017 (Executive Council Decision EX.CL/Dec.979(XXXI) adopted in June 2017) where it inter alia, called upon 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...” as well as Executive Council Decision EX.CL/Dec.1018(XXXII) adopted in June 2018, where it requested, “the PAP to comply with the principle of geographical rotation among the five regions of the Africa in future elections of the Bureau”. It also took notice of the May 2007 PAP resolution on rotation.

Regrettably, this decision which was also based on the recommendation of both the delegation sent to the Secretariat of the PAP by the AUC Chairperson and the Permanent Representatives Committee (PRC), has been criticized by some PAP parliamentarians on the erroneous belief that no organ of the AU, including the Assembly can impose such a decision on the Parliament except by an amendment to its rules of procedure. But if one may ask, having amended its rules of procedure on May 11, 2007, how many more times must PAP amend its rules on rotation before it can take effect?

The criticism is misplaced because the Executive Council did not make any new rule or regulation on rotation but as stated in that decision, merely interpreted and insisted on the implementation or enforcement of established values, rules, and regulations in managing all activities of the organs of the AU decisions with particular reference to geographic rotation.

Instructively, the Council decision only recalled and reaffirmed its previous decisions in 2017 and 2018 as well as the May 11, 2007 PAP resolution on rotation on the basis of which it instructed that the upcoming elections should be in line with the principle of rotation.

In any case, it would be recalled that the Clerk of the Pan African Parliament sometime in July 2021 requested for an Advisory Opinion from the African Court on Human and Peoples’ Right on whether the rules of procedure of PAP will have to be amended to make rotation binding and enforceable on the parliament.

According to the Clerk’s request to the Court, “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 (hereinafter referred to as “the PAP Protocol”) and the Rules of Procedure of PAP (hereinafter referred to as “the PAP Rules”) with respect to the election of the Bureau of the Institution. According to the Author, the said dispute is mainly on whether its abovementioned instruments prescribe 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”.

Without any doubt therefore, the issue addressed by the Executive Council decision in its October 2021 decision was about the interpretation of relevant AU instruments and PAP rules of procedure and Court held that it has no jurisdiction to issue opinion on the issue since the “instruments sought to be interpreted 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”.

Concluding, 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.”

It is therefore evident from the above Opinion issued in response to a request by the Clerk of PAP, that the issue addressed by the Executive Council was an interpretation of the PAP Protocol vis-à-vis the rules of procedure as it relates to rotation of offices.

Additionally, it is noteworthy that the AUC Chairperson’s delegation which visited the parliament, made a finding that the Pan African Parliament on May 11, 2007 indeed amended its rules of procedure to include the principle of rotation of offices among the five regions. No one has disputed this finding of fact or presented any evidence to the contrary or even alleged that the May 11, 2007 resolution on rotation has been vacated.

Under Article 20 of the PAP Protocol, the Court of Justice shall be seized with all matters of interpretation emanating from the Protocol and pending its establishment, such matters shall be submitted to the Assembly.

Therefore, the Assembly has the jurisdiction to interpret the PAP Protocol and also has the authority to delegate such a responsibility pursuant to Article 9(2) of the Constitutive Act of the African Union, to any other organ including the Executive Council.