Matters arising from the implementation of AU Decision on PAP - AFRICAN PARLIAMENTARY NEWS



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Monday, February 21, 2022

Matters arising from the implementation of AU Decision on PAP

By Olu Ibekwe (

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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