PAP’s continued closure is an affront on the AU

By Olu. Ibekwe (oluchukwuibekwe@gmail.com)

It is no longer news that activities at the Pan-African Parliament (PAP) has been at a standstill since June 1, 2021 when the African Union Commission (AUC) Chairperson H.E. Moussa Faki Mahamat unilaterally shut down the continental parliament for one month supposedly to give it time to resolve its problems and organize peaceful and credible elections.

What is however news is that almost a year later, Faki appears not to be in a hurry to reopen the parliament notwithstanding the clear, specific and unambiguous directives of the Executive Council to ensure that the parliament is reopened before the end of April, 2022. Or has the keys to the parliament been misplaced?

The powers of the AUC are defined in Article 20 of the Constitutive Act of the African Union which provides that the AUC shall be the secretariat of the African Union (AU) and responsible to the Executive Council. It did not give the AUC, any substantive powers or authority over PAP or indeed anything that could be construed as authority to decide when to shut down or reopen PAP.

If indeed, Faki shut down PAP on June 1, 2021 based on exigent circumstances, he reasonably should thereafter have sought the ratification of that action by the relevant policy organs of the AU. He did not deem it necessary to do so and even after almost a year, he has taken no reasonable steps towards ensuring that the parliament is reopened.

The question then is, which provision of the Constitutive Act or PAP Protocol is he relying on to justify his seeming reluctance to reopen the parliament even after the Executive Council decisions directing the reopening of the  parliament before the end of April 2022? Does he not care about the institutional credibility of the African Union?

As at 18 April 2022, the AUC has not issued notice of the resumption of the PAP election session which means that given the 21-day notice requirement of PAP rules, the election session cannot be held even by the middle of May, 2022. Why should Faki treat a Council decision which was supposed to be implemented as a matter of urgency, with ignominy? Why is he acting with impunity?

Ordinarily, a custodian can take an emergency action on behalf of his or her principal such as the one arguably taken on June 1, 2021 by Faki to shut down PAP for thirty (30) days. But reasonable steps should thereafter have been taken to get the relevant policy organs of the AU to approve or ratify not only the initial decision to shut down parliamentary activities for 30 days but also any subsequent extension beyond the initial period.

Regrettably, Faki is acting as a sole administrator with absolute and unquestionable powers which is inconsistent with the vision of the founders of the African Union in establishing the Pan African Parliament as a platform for African peoples to fully participate in the decision-making processes for the political and socio-economic development of the continent.

The Pan-African Parliament is listed in Article 5 of the Constitutive Act as the third highest organ of the African Union and for good reasons. Its composition, powers, functions and organization are defined in the Protocol that established the parliament. And none of the above legal documents gave the AUC supervisory authority over it. Is it not an absurdity that an organ listed below the parliament in hierarchy is exercising supervisory authority over a parliament that consists of elected representatives of African people?

It is also arguable that Faki violated Article 14(2) of the PAP Protocol which requires that the parliament shall meet in ordinary session for at least twice a year. The use of the word “shall” makes it a mandatory requirement.

Understandably, PAP could not meet in 2020 due to the COVID Pandemic and the resultant world-wide travel ban and the shutting down of all international borders. This inability to meet in 2020 could be excused under the doctrine of force majeure.

The election session of May/ June 2021 was, as noted earlier, suspended by Faki due to disagreement over rotational presidency and the insistence that only the Northern and Southern Regional Caucuses of the parliament that had not been able to produce the leadership of the parliament, shall be eligible to present candidates for the president of the parliament.

The second session of 2021 which was supposed to take place in October 2021 could not hold because parliamentary activities were suspended by Faki. And left to him, the May 2022 session may also not hold.

But come to think of it, was the initial shutting down of the parliament on June 1, 2021 reasonably justified? As the head of the AU Secretariat and custodian of documents, Faki knew and should have reminded the MPs during the May 31 and June 1, 2021 incident that as far as the AU was concerned, rotation is a settled matter and therefore law. He should have reminded the MPs of the previous decisions of the Executive Council on rotation especially the Council decision of February 2016 where it directed all the organs and institutions of the AU to implement the principle of rotation regardless of whether it was contained in the instrument that set up such organ or institution. That 2016 decision, ought to have settled the argument that rotation was not contained in the PAP rules of procedure even when it was evident that in May 2007, PAP passed a resolution on rotational presidency.  

The Office of Legal Counsel (OLC) on or about May 30, 2021 in response to a letter from the Southern Regional Caucus of the PAP, issued a legal opinion which clarified and resolved the issues in contention and made it clear that rotation was mandatory and that only regions that had not had the opportunity of producing the leadership of the parliament would be eligible to present candidates for president.

And as we are meant to understand, the OLC provides a unified central legal service for the AU including all its organs and institutions and ensures that decision-making processes are compliant with AU legal frameworks. It also provides advice on the interpretation of AU legal instruments. So the opinion provided on May 30, 2021 was consistent with its mandate.

It was on the basis of the OLC opinion that then Acting President of the PAP, Hon. Chief Fortune Charumbira gave a ruling on May 31, 2021 during plenary “that the Africa Union principle of rotation will be implemented during the elections of the Fourth Ordinary Session of the Pan-African Parliament. For that reason, only candidates from the Northern and Southern Regions are eligible. The principle of rotation was entrenched. In addition, we are in receipt of the advice on rotation from AU Legal Counsel”. See Record of Proceedings of May 31, 2021 at page 183.

Thus the ruling by the presiding officer of the parliament which was based on the presentation and admission of the very sound and well articulated OLC opinion should have settled the matter. This decision was in effect, subsequently upheld by the AU Executive Council in October 2021 which makes one to wonder why the parliament was shut down in the first place. What then is the basis for Faki’s reluctance to have PAP reopened? Can it be construed to mean that he does not agree with the Executive Council decision and so, decided to embarked on the 23 – 24 February 2022 consultations with the aim of coming up with a report and recommendation to upturn those Executive Council decisions?

That PAP activities remained closed till date notwithstanding the OLC opinion of May 30, 2021, the ruling of then Acting PAP President on May 31, 2021 and the subsequent decisions of the 39^th and 40^th Ordinary Sessions of the Executive Council puts to test, the institutional credibility of the AU. Is Faki aiding and abetting those who are openly deviant and challenging the authority of the AU policy organs? After all, what they did was to in effect reaffirm previous decisions on rotation.

Are decisions of the Executive Council no longer binding on the AUC? Does the AUC have the power to vary or refuse to implement Executive Council decisions? Can’t the AUC be sanctioned for disobedience or refusal to implement Executive Council decisions? Does the Permanent Representatives Committee (PRC) which is charged with preparing the agenda and draft decisions for the Executive Council, not have the power to inquire as to why Executive Council decisions on PAP have so far, not been implemented?

Are we trying to create strong AU institutions or a strong and dictatorial AUC Chairperson?

The AU must be careful as it is setting a bad and dangerous precedent that could be relied upon in the future by an ambitious AUC Chairperson to take arbitrary and unilateral decisions to shut down PAP at the slightest provocation and through away the keys. We must be mindful of the principles that are enshrined in the Constitutive Act such as the participation of African peoples and civil society organizations in the activities of the AU, respect for democratic principles, rule of law and good governance.

The founders of the African Union did not set out to create a dictatorial structure with a powerful AUC Chairperson but one guided by respect for due process and the rule of law.