PAP election: A review of the decision requiring consultations before election

By Olu. Ibekwe

The controversial ruling of the Chairperson of 40^th Ordinary Session of the Executive Council on Thursday February 3 directing the African Union Commission (AUC) to hold consultations with the other regional caucuses who allegedly were not given the opportunity to appear before the fact-finding delegation that visited the seat of the Pan African Parliament (PAP) in September 2021 has thrown up issues that calls to question, the wisdom in embarking on such a venture as a pre-condition to the election.

The reasoning behind the decision was that since the delegation that visited South Africa only met with the Southern Regional Caucus, it was fair that the other regions should also be given the same opportunity to have consultations with the delegation. Sounds fair and reasonable you would think. But hold on, have we properly examined the implications of this decision and the dangerous path we are threading on?

Historical background

When members of the Pan African Parliament gathered for the Fourth Ordinary Session of the parliament on 31 May 2021 to elect a new leadership, three candidates from Mali (Western Region), South Sudan (Eastern Region) and Zimbabwe (Southern Region) respectively submitted nomination forms to contest for the presidency of the parliament.

The Southern Caucus protested against the nomination of candidates by the Western and Eastern Regions on the ground that it was against the principle of rotation. They posited that it is only the Southern and Northern regions that had not had the opportunity to lead the parliament and so were the only regions that were eligible to nominate candidates.

Their position was hinged on the previous resolution of the parliament in May 2007 where the plenary resolved that the presidency of the parliament shall rotate among the five regions with effect from 2009, as well as relevant decisions of the Executive Council in 2016, 2017 and 2017 on geographic rotation. The leadership of the Southern Caucus also wrote to the AU Office of Legal Counsel (OLC) for a legal opinion on the issue.

On or about 30 May 2021, a response was received from the OLC which concluded that PAP must apply the principle of rotation in the election and that only regions that had not had the opportunity of leading the parliament would be eligible to present candidates. The OLC concluded that any election that did not comply with the well established African Union principle of rotation will be considered invalid and will not be accepted. Copies of the OLC opinion were sent to the Clerk of the Pan African Parliament and Deputy Chairperson of the AUC. One would have thought that the OLC’s opinion had settled the issue.

When the plenary of the parliament resumed sitting on the next adjourned date, the Chairperson of the Southern Caucus presented the letter during plenary and was accepted and made part of the record of proceedings. The Acting President then made a ruling that in line with the legal opinion by the OLC, rotation will be applied and that only the Northern and Southern Regions would be eligible to present candidates for the election.

The failure of the Clerk to pass on the ruling of the Acting President on OLC’s letter to the Ad Hoc Committee and the refusal of the members of that committee who were all in Chamber to accordingly declare the nominations from the Eastern and Western invalid, the stage was set for the eventual crisis that led to the suspension of plenary. Members of the Southern Caucus who felt outraged by the impunity being exhibited by the Clerk and the Ad Hoc Committee, opted to exercise their right to civil disobedience by chanting “no rotation, no election”.

The candidates of the Western and Eastern Caucuses and their supporters, backed by some MP’s from the Central Regional Caucus decided that the election must proceed without complying with the principle of rotation as clearly articulated in the opinion by the OLC.

While this was going on, news came that Mali has been suspended from the AU such that the country was no longer eligible to participate in the activities of any of the AU organs and institutions. For some strange reasons, the Clerk of the Parliament who had allegedly received the communication from the AU, refused to read it in spite of insistence by some parliamentarians. Things then began to get out of control to the extent that a parliamentarian from Senegal, kicked a ranking female member from South Africa, an act which received wide condemnation. See photo.

Unfortunately, the instigators and perpetrators of the violence that that led to the suspension of the plenary are now playing victims. But the events of 31 May and 01 June are available on YouTube. The record of proceedings of the parliament for session, especially 31 May and 01 June 2021, produced in accordance with Rules 78 and 81(c) of PAP Rules of Procedure and perhaps the most authentic and legally admissible evidence of what transpired should be examined to ascertain the culpability of parliamentarians in the ugly incident. So no one should be deceived about what happened because they are matters of record. The AUC delegation should request for and watch the video recording of what transpired and also peruse the record of proceedings to avoid plunging PAP into more crisis.

With this background, let us now interrogate the propriety or otherwise of the ruling requiring that there be consultations with the regions that were unable to meet with the AUC delegation that visited South Africa.

Issue of rotation that necessitated AU Intervention

It is undisputable that the issue in contention that resulted in the crisis was the refusal to apply the principle of rotation in the election of the president of the Parliament hence the insistence of the Southern Caucus on “no rotation, no election”. In other words, we are faced with a question of interpretation of the PAP Protocol and Rules of Procedure.

Article 20 of the Protocol to The Treaty Establishing the African Economic Community Relating To The Pan-African Parliament (PAP Protocol) states that “The Court of Justice shall be seized with all matters of interpretation emanating from this Protocol. Pending its establishment, such matters shall be submitted to the Assembly which shall decide by a two-thirds majority.”

Now, it is a matter of record that the Court of Justice has not been established. And pending its establishment the Assembly, which has delegated this responsibility to the Executive Council had the authority to pronounce on the matter and did so through the 39^th Ordinary Session of the Executive Council held in October 2021. No further appeals under any guise can be entertained. And if that is the position, then what is the intended purpose of the consultation?

Threading on dangerous path

As stated above, the issue in contention revolved around the interpretation of the PAP Protocol and since the said Executive Council decision merely reaffirmed previous decisions and made no new rules, why is heavy weather being made about consultation with the other regions?

Having resolved the issue in favour of rotation, (directing that only regions that had not produced the leadership of the parliament are eligible to nominate candidates), has the Southern Caucus not been vindicated? Had they not prevented the election from holding, would that not have resulted in conducting an illegal election on 31 May 2021 as pointed out by the OLC? Can they therefore be faulted or punished for the steps they took to protect their right?

One would have expected that after the Executive Council decision, the next legal and logical thing was to ensure that the election session was promptly convened to install a new leadership, such that all other outstanding issues would be taken care of in accordance with Rules 50, 51 and 52 of the Rules of Procedure of the Parliament.

This position is consistent with the provision of Article 14(1) which states that “the inaugural session shall be presided over by the Chairperson of the OAU/AEC until the election of the President of the Pan-African Parliament who shall thereafter preside”. In other words, AUC Chair can preside over the election of the president, to be conducted by the OLC and thereafter, hand over to the new president who after presiding over the election of the vice presidents, should handle other ancillary issues in accordance with the rules of procedure.

No provision of the Constitutive Act of the African Union, PAP Protocol or PAP’s Rules of Provision gives the AUC oversight authority over PAP. The dispute that led to suspension of the election was properly resolved within the dictates of Article 20 of the PAP Protocol.

Besides, there is no country or similar organization where appointees of the executive arm is given power to conduct hearings where they invite elected parliamentarians to appear before them. Can an appointee of the chief of staff to the president of a country purport to conduct or preside over a hearing involving members of the national parliament? This is an absurdity!

Let us not kid ourselves. Fights by parliamentarians during plenary occur all the time across the continents with fist fights and throwing of table. But they are usually resolved through the institutional mechanisms provided by the rules of procedure. Why is this one different? Is it because as being alleged, some parliamentarians have connections in the AUC?

By trying to extend her jurisdiction to include acting as a supervisory organ over PAP, the AUC is over stretching the bounds of the powers granted to it by the Constitutive Act. It needs to be emphasized that PAP is the third highest organ of the Union as per Article 5 of the Constitutive Act and that hierarchical listing must be given the respect it deserves. Parliamentarians are not appointed civil servants!

Lack of guidelines or terms of reference for the consultation

Another worrying aspect of this requirement for consultations before election is the lack of clear guidelines or terms of reference for those consultations. What is it intended to achieve and is it not a back door attempt to reopen and possibly vary the decisions of the 39^th Ordinary Session of the Executive Council? What will the AUC do with the outcome of the hearing and who will it submit the report to? Will the report provide basis for the election?

As stated earlier, position of the Southern Caucus which was the basis of their presentation before the AUC delegation that came to South Africa was to place on record, the previous resolution of the parliament in May 2007 where the plenary resolved that the presidency of the parliament shall rotate among the five regions with effect from 2009, as well as relevant decisions of the Executive Council in 2016, 2017 and 2017 on geographic rotation. Did those other regions that claimed to have been excluded have any documents that would have impeached the documents submitted by the Southern Caucus? Is this not giving the recalcitrant parliamentarians the opportunity to continue their mischief.

Can they point to any aspect of the progress report submitted by the delegation that showed that they suffered prejudice because they were denied the opportunity to appear before the delegation? Were they not aware of the visit of the delegation? Did they indicate interest to appear before the delegation and were denied audience?

For the consultation to hold, all the five regions must be involved because the fact that the Southern Caucus presented a position paper clarifying the issues does not amount to consultation. Their presentation was on the issue in contention which was rotation. Besides, the issue that necessitated the position paper has been resolved and settled meaning that a new chapter has opened. Unless this is a back door attempt to reopen a matter already determined by the Executive Council the consultations should be extended to all the five regions.

It is also necessary to remind those insisting on the consultations before the election that certain decisions have been taken by the Executive Council and therefore off limit. They include the issue of rotation (that only Southern and Northern caucuses shall be eligible to present candidates), venue (shall be South Africa, the seat of the Parliament) and that the election of president shall be conducted by the OLC who will thereafter manage the election of the vice presidents.

On the issue of security, it is on record that with the exception of the parliamentarian from Senegal who kicked a female parliamentarian from South Africa, there is no other recorded incident of assault or security breaches. The perpetrator of that attack was neither arrested or prosecuted for assault while in South Africa and has now turned around to cry wolf. But then, let us not forget that the plenary had earlier passed a resolution expressing gratitude to the government and people of South Africa for relaxing some of their COVID restrictions on the number of people that can gather in a place and their hospitality to enable the PAP session.

CONCLUSION

As noted above, the AUC should be careful not to thread on dangerous path that can potentially escalate the crisis by reopening issues already decided by the Executive Council. The misunderstanding that led to crisis has been adjudicated and the next thing is to hold election after which any unresolved issues can be handled according to the PAP Rules of Procedure. The consultation should be to assuage the feelings of those who felt that they have lost out and to remind them that they were elected into the parliament to serve the interest of the African people, not to pursue their personal or regional interest. We insist on One Africa, One Voice!