The publication
of the decisions of the 39th Ordinary Session of the African Union (AU) Executive Council
held 14-15 October 2021 at Addis Ababa,
Ethiopia at the AU website has
laid to rest, the contentious issues that led to the suspension of the May 2021
election session of the Bureau of the Pan
African Parliament (PAP).
According
to the publication, the Executive
Council directed “the Office of
Legal Counsel (OLC) to conduct and manage the upcoming PAP elections process and elaborate the elections modalities in
accordance with the Rules, Regulations and established practice of the African
Union as well as relevant decisions of the Executive
Council on the principle of rotation.
In
order to allow regions that are eligible to occupy the Positions of the PAP
President to present their candidates, the Executive
Council also decided that the nomination for the post of the other Bureau
members should also be reopened and all candidates including the president must
be submitted to OLC through respective
eligible Regional Caucuses.
The decision should be viewed within the context of the fact
that under the AU structure, the OLC provides a “unified central legal
service for the Union including all
its organs and institutions” and ensures that “decision-making processes are
compliant with AU legal frameworks”. The OLC
also provides advice on the interpretation of AU legal instruments and conducts elections for the Executive Council and Assembly.
And since the OLC
conducts elections for the Executive
Council and Assembly, it is not out of place to request it to conduct and
manage the upcoming PAP elections
process in view of the circumstances
that led to the suspension of the said election session. This will ensure the
conduct of peaceful and credible election of the Bureau of the Parliament by an
independent unit.
To give meaning and effect to the Council’s decision, arrangements should
be made to ensure that newly designated parliamentarians are timely sworn in to
enable them to participate at the resumed bureau
election.
At least, ten member-states are
expected to designate new members to the PAP
following parliamentary elections and the designated members expect to be sworn
in so as to be able to participate in the elections. This translates to more
than fifty (50) new parliamentarians.
In the spirit of a free and fair
process, these newly designated parliamentarians should be eligible to vote and
be voted for, and for this to happen, they must first be sworn in as members of
PAP.
This calls for the activation of the
Interim Bureau in line with the provisions of the PAP Protocol.
It
would be recalled that the May 2021 PAP session
adjourned sine die without formally extending
the tenure of the Interim PAP Bureau
to continue to run the affairs of the parliament pending the election of new
officers.
I therefore humbly submit that members of the Interim Bureau
whose terms as members of the PAP within
the meaning of Article 5(3) of the PAP Protocol have not expired as well
as officers whose terms of office are valid within the meaning of Article 12(3) should resume their respective
offices to ensure that newly designated parliamentarians are sworn in.
Under Article 5(3) of the PAP
Protocol, the term of a member of the PAP
shall run concurrently with his or her term at the National Parliament or other
deliberative body while Article 12(3) provides that the term of office of the
President and Vice Presidents shall run with their tenure at their respective
National Parliaments. In other words, under the PAP Protocol, members of the interim bureau whose tenure at their
respective National Parliaments have not expired should resume their offices.
Although the Parliament’s Rules of Procedure prescribes three
year tenure for the Bureau, the need to ensure the swearing in of new members
to enable them participate in the resumed election session calls for the
application of the doctrine of necessity
to allow the Interim Bureau to
resume their offices until elections are held. After all, it is the PAP Protocol that gave PAP the power to adopt its rules of
procedure.
The doctrine of necessity as a legal rule, is applied in
exceptional circumstances to justify or endorse acts that would otherwise be
against the law.
This implies that under exigent circumstances as we now have,
the observance of the provisions of the PAP
Protocol to extend the tenure of the Interim
Bureau, even if inconsistent with the provisions of the parliament’s rules
of procedure, should be deemed valid and acceptable on the ground that
maintenance of PAP governance
structure and organs is of greater utilitarian value than strict adherence to its
rules of procedure.
It should also be noted that Article 12(5) of the PAP
Protocol stipulates that the President and the
Vice-Presidents shall be
responsible for the management and administration of the affairs and facilities
of the Pan-African Parliament and its organs. In the discharge of their duties,
the Officers shall be assisted by the Clerk and the two Deputy Clerks.
The AUC Chairperson’s
delegation that visited PAP, in
their progress report, expressed “concerns
over the running of PAP’s affairs by the Clerk given the fact
that he is not an elected official of the Organ” noting the fact that the
Bureau of PAP had been dissolved prior to the election that is
yet to take place.
PAP therefore needs to put in place, measures that will make
voting possible for all parliamentarians, including newly designated ones and
this includes taking steps to extend the tenure of the interim bureau so that
new MPs may be sworn in. The right to vote and be voted for is an essential
ingredient of a fair election process.
Olu Ibekwe is the Chairperson of the Steering Committee of the African Parliamentary Press Network, a
Network of African journalists and information officers reporting from
regional, sub-regional and national parliaments in Africa. APPN promotes parliamentary openness and cordial working
relationship between Parliaments and the media and believes that a well
mobilized and resourced press corps or galleries in all African parliaments
will set the stage for the work of African Parliaments, including the Pan-African Parliament,to be made visible to the people of Africa.
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