By Olu Ibekwe (oluchukwuibekwe@gmail.com)
The
implementation of the decisions of the 39th and 40th Ordinary
Sessions of the Executive Council on Pan
African Parliament has thrown up some issues that if not properly handled,
could potentially have adverse consequences. These issues include: whether the proposed
session is a continuation of the May 2021 election session; whether new members
can be sworn in and participate in the election; whether the Ad Hoc Committee
has any role to play in the proposed election session; and lastly, whether the
proposed session is an ordinary or extra-ordinary session.
Let
me as a preliminary matter, remind us that according to Rules 34 and 35 of the
Rules of Procedure of the Executive Council which was established by Article 11
of the Constitutive Act of the African Union as the second highest organ,
decisions of the Council are binding on all AU member states, organs and
institutions as well as RECs and shall be automatically enforceable thirty (30) days after the date of the publication in the ‘Official Journal of
the African Union’ or as specified in the decision.
It is
also important to remind us that the Thirty-Third Ordinary Session of the
Assembly 09 - 10 February 2020 Addis
Ababa, Ethiopia, Assembly/AU/Dec.757(XXXIII) “directed AUC Chairperson to
continue to take effective actions to address all acts of misconduct in the
African Union, and to use his financial and administrative statutory oversight
authority over all non-Policy Organs and Institutions of the Union, including
the Pan-African Parliament, the
African Court of Human and Peoples’ Rights, the African Commission on Human and
Peoples Rights, and their elected officials”.
Further
as part of the AU Reform, the Assembly in Assembly/AU/Dec.757(XXXIII) of
February 2020 also directed “the Office
of the Legal Counsel to examine the
Legal Instruments and Rules of Procedure of AU Organs and identify areas of
incoherence or conflict with other AU Legal Instruments, and advise AU Policy
Organs on the amendments and alignment, as appropriate” a decision which was
restated at the 39th Ordinary Session of the Council during its
decision on PAP. The said review of
the rules of procedure by the OLC includes
all organs of the AU and not just PAP.
With these in mind, let us now take an objective
look at the issues raised in the first paragraph.
Should the proposed election session be a
continuation of the May 2021 session?
The
May 2021 session of the Pan African
Parliament (PAP) was suspended due to disagreement over the interpretation
of the PAP Protocol with regard to principle of geographic rotation in the
election of parliament’s President. After due diligence investigation, the AU came
up with a sound decision affirming that only regions that have not had the
opportunity of leading the parliament should be eligible to nominate candidates
and that the election should be organized and managed by the Office of Legal Counsel (OLC) which
should also receive nomination of candidates for the election.
The
implication is that the candidates nominated in May 2021 by the regional
caucuses have been overtaken by
events and are no longer valid as new nominations have been mandated, to be
received by the OLC. The Executive Council
decision has also handed the responsibility to conduct and manage the election
to the OLC and the decision did not
mention any ad hoc committee.
So
we are dealing with fresh nominations, not even to the Clerk of PAP who has been stripped of any role
in the election process or to the AD Hoc Committee but to the OLC. As they say, one cannot build
something on nothing and then expect it to stand.
The
proposed election session cannot therefore be said to be a continuation of the
May 2021 session as it is being held under different rules of engagement.
Can new parliamentarians be sworn in?
Yes,
new MPs can and should be sworn in because Rule 37 lists the sequence of
proceedings and Order Paper for sittings of the Parliament. Rule 37(1)(c)
provides for the administration of oath to new members as the third item in the
Order Paper while Rule 37(1)(d) provides for the election of the president and
vice president as the fourth item in the Order Paper. So if the parliament is
constituted to hold elections for the offices of the president and vice
presidents, then new members can also be sworn in by the Clerk who has the
statutory duty administer the oath to new MPs as an item on the Order paper before
the election. It is important to bear in mind that the sequence listed in Rule
37(1) is expected to be strictly be adhered to instead of trying to pick or
choose the ones to observe or ignore.
Article 14(1) of the PAP Protocol
states that the inaugural session of PAP shall be presided over by the
Chairperson of the AU until the election of the president who shall thereafter
preside. As we know, the Executive Council has directed both the AUC
Chairperson and the AU Commissioner for Political Affairs, Peace and Security
to attend the election. I therefore submit that the absence of a PAP Bureau at
this time places PAP in a position that it was at its inaugural session in
March 2004 when new members were also sworn in. There is therefore a precedent.
New MPs can and should be sworn in
before the election and should also be eligible to stand for election as long
as there are no impediments or encumbrances against the country delegation. So
let no one start another mischief that new MPs cannot be sworn in before the
elections or that they cannot be eligible to stand for election to avoid legal
challenges on the validity of the election if an otherwise eligible candidate
is denied the right to vote or be voted for.
Does
the Ad Hoc Committee have any role to play in the election?
As pointed out earlier, decisions of
the Executive Council are binding on all organs of the AU including PAP such that if there is any perceived
conflict between a decision of the Council and PAP Rules of Procedure, the
Council decision becomes controlling. Therefore, the Executive Council decision
that the OLC should organize and
manage the election of the president, effectively puts to rest, any idea of
resuscitating that infamous Ad Hoc Committee that contributed to the crisis. It
would be recalled that the Chairperson of that Committee refused to take notice
of and accord weight to the legal opinion of the OLC even when it was duly admitted and made part of the record of
proceedings of the parliament and pronounced upon by then presiding officer. Had
the Ad Hoc Committee been diligent and objectively pursued its assignment, the
crisis that resulted in the suspension of the election would have been averted.
Therefore, the life of the Ad Hoc
Committee has expired and its assignment for this particular election session has
been handed over to the OLC. No more
room for mischief, please.
Is the proposed session an ordinary or
extra-ordinary session?
Both
the PAP Protocol and Rules of Procedure provides for two plenary sessions in a
year, which are routinely held in May and October. Any additional session beyond
the two sessions must be convened as an extra-ordinary session.
Article
12(3) of the PAP Protocol states that the
Assembly or the Council, through the Chairperson of the AU, may request an
Extra-ordinary session. The request shall provide a motivation for and details
of the matters to be discussed at the proposed Extra-ordinary session. When
convened, such a session shall discuss only the matters stipulated in the
request.
It is undisputable that the upcoming
election session is a result of the decision of the 39th Ordinary
Session of the Executive Council which mandated that the next session of PAP “should be dedicated to the election of the PAP Bureau Members to allow for the smooth running of
the Organ”.
The Executive Council
decision also authorized the African Union Commission “to present the necessary
budget to conduct the election of the PAP bureau to be considered by the PRC Sub-Committee on General Supervision and Coordination on Budgetary,
Financial and
Administrative Matters
bearing in mind the importance and urgency of the matter”. This is not a
routine arrangement but an extra-ordinary measure.
Given the fact that the
upcoming session was mandated by the Executive Council for the single purpose
of conducting election for the leadership of the parliament where the AUC will
present the necessary budget to conduct the election, it is definitely an
extra-ordinary session.
It is
also important to note that under Rule 17(c), it is the bureau that determines
the draft agenda and the program for an ordinary session of the parliament. But
the proposed election session as stated earlier, was mandated by the Executive
Council pursuant to Article 14(3) of the PAP Protocol. It is after the election
session that the newly elected bureau can plan for a regular ordinary session
in May or thereafter.
Let
us remember that the last full session of the parliament was held in October
2019. The parliament could not sit throughout 2020 due to COVID world-wide
lockdown and the attempt to sit in May 2021 ended up in crisis and ultimately,
suspension of activities.
If
one of the two sessions authorized by the PAP Protocol this year is devoted
solely to the election of the bureau, it means that the next regular sitting of
the parliament would be in October 2022 for a parliament that has not sat for
almost two years!
It is
important that we should not tie the hands of the incoming bureau by
constraining them into one session this year. The new bureau should have an
unfettered discretion to meet after the election and plan its program and
activities and this includes deciding whether or not, to convene the May 2022
Session after the election.
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