PAP Workshop on Review of the Rules of Procedure and matters arising

By Olu. Ibekwe

Chairperson of the Pan-African Parliament (PAP)’s Permanent Committee on Rules, Privileges and Discipline, Rt. Hon. Thembekile Majola, hosted a four-day Consultative Workshop on the Revision of the PAP Rules of Procedure at the Indaba Hotel, Johannesburg from Monday 05 to Thursday, 08 September 2022.

The aim of the workshop according to a presentation by the Legal Office of PAP captioned “Review of the Gaps and Areas of Improvement in the Rules of Procedure of the Pan-African parliament” was to identify gaps and areas of improvements in the current Rules.

Having gone through that presentation, I am of the opinion that some of the alleged gaps so identified in the presentation are controversial, ill-advised and unnecessary.

For example, how come the author did not consult for inspiration, such very crucial and relevant documents as the Modalities for the June 2022 Bureau Election prepared by the Office of the Legal Counsel of the African Union Commission (OLC); PAP’s Revised (Malabo) Protocol so as to align the Rules with the provisions of the Protocol that do not require ratification by the AU member-states; Decisions of the 39^th Ordinary Session of the Executive Council (Decision 1128) and; the Outcome of the Capacity Building Workshop for the members of the PAP held 22 – 24 August, 2022.

Election of the President and members of the Bureau (rotation). The presentation appear to be making a case for the adoption of the principle of rotation in the election of the President of the Parliament which to me, is very interesting considering the fact that this was the issue that generated the disagreement that led to the suspension of parliamentary activities at the PAP for almost a year. The rotation argument was resolved by the policy organs of the African Union (AU) which led to the issuance of the modalities on basis of which the last Bureau election was conducted on 29 June 2022. Why did the PAP Legal Office not draw inspiration from the May 30, 2021 opinion of the OLC in addition to the modalities used for the last Bureau election?

The point is that both the issue of rotation of the presidency of the parliament and the sequence of the rotation are settled issues as per the modalities used for that election. I must also add that the Bureau election conducted based on the said modalities resulted in a credible, rancor-free and seamless election. What PAP needs to do at this time is to codify those modalities into the Rules of Procedure and not to attempt to reopen debate on the propriety of adopting the rotation principle. The Parliament has moved on beyond that argument and the rotation sequence has also been established in the following order: Southern Region, Northern Region, Eastern Region, Western Region and Central Region. It now needs to be codified. That’s all.

Accordingly, this seeming attempt to reopen debate on an already resolved issue should be rejected.

The Role of the Ad Hoc Committee (Rule 16(3)). In his presentation, the Legal Officer observed that the last election recorded motions being moved during the election proceedings and raised the question of whether the Ad Hoc Committee should have the power to entertain motions. He therefore submitted that the issue should be considered in the course of the review exercise.

Let’s make no mistake about it, Rule 16(3) is very explicit on the limited role of the Ad Hoc Committee to “organize and preside over the election of the President”. The election is to be conducted in accordance with the rules and decisions of the parliament which includes the rulings by the Presiding Officer all which are binding on the Ad Hoc Committee. This attempt to create a new normal where the Ad Hoc Committee will be empowered to entertain motions and to reconsider issues already decided in such a political environment is bound to create more problems for the Parliament.

It would be recalled that before the 31 May 2021 botched Bureau election, the OLC had on or about 30 May 2021, issued an opinion which resolved the issue of rotation. The OLC letter was presented and admitted into the record proceedings during plenary on the basis of which the Presiding Officer made a ruling on the eligible regions that can present candidates for election as President. So does the Ad Hoc Committee have the power to veto or disregard such a ruling backed by the opinion of the OLC whose statutory duty it is to issue such legal opinions?

Removal of Bureau members from office. The Legal Officer submitted that the PAP Rules of Procedure are silent on the procedure for the removal from office of the President of PAP. He then went on to examine the practice in other supposedly similar jurisdictions on the basis of which he argued on the need to make provision for the conditions under which members of the Bureau can individually or collectively be removed from office. Did I hear him say collectively remove members of the Bureau from office? As in remove all the members of the Bureau from office in one swoop?

I humbly submit that there is no need looking for jurisdictions to draw inspiration on the process for the removal of members of the Bureau because the current PAP Protocol contains such provisions. It only requires codification in the Rules of Procedure.

Article 12(8) of the PAP Protocol lists the circumstances under which the office of the President or Vice President can become vacant and this includes removal on grounds of misconduct (Article 8(d)) while Article 12(9) stipulates that Removal on the grounds of misconduct shall be on a motion to be decided on by secret ballot and supported at the end of debate by two-thirds majority of all the Pan-African Parliamentarians. I wonder what other inspiration the Legal Officer is looking for!

Functions of the Bureau. Article 12(5) of the PAP Protocol states that the President and the Vice-Presidents shall be the Officers of the Pan-African Parliament. The officers, under the control and direction of the President and subject to such directives as may be issued by the Pan-African Parliament, 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. See also Rule 17 (functions of the Bureau).

Article 12(6) states that the Pan-African Parliament shall appoint a Clerk, two Deputy Clerks and such other staff and functionaries as it may deem necessary for the proper discharge of its functions and may by regulations provide for their terms and conditions of office in accordance with AU Rules and Regulations. The Legal Officer is now positing that the employer and the employee should share powers!

Obviously, Article 12(5) of the Protocol makes it clear that the Bureau is responsible for the management and administration of the affairs and facilities of the Pan-African Parliament and its organs and that they will be assisted by the Clerk and two Deputy Clerks. The suggestion that the operational and administrative issues should be brought under the exclusive control of the Clerk especially in an AU organ with political leadership is contrary to the spirit and intent of Article 12(5) of the Protocol and therefore misplaced. The Bureau may delegate or assign responsibilities to the Clerk but not to share powers as the ultimate responsibility for the administration of the Parliament rests with the Bureau.

Rules of Procedure for the Bureau. The legal Officer also made presentations on the need for the enactment of Rules of Procedure for the Bureau meetings which to me is also misplaced.

I make bold to state, without any fear of contradiction that only the Bureau has the power to enact Rules of Procedure for the conduct of its internal business and may also amend or jettison such rules as it deems without recourse to the Parliament. It is not for the Parliament or plenary to make rules for the conduct of Bureau meetings and this seeming attempt to instigate crisis of authority must be nipped in the bud.

The Legal Officer may advise the Bureau on the desirability of promulgating Rules of Procedure to guide the conduct of Bureau meetings or business. But to attempt to use the process of the review of the rules of procedure of the Parliament to impose one on the Bureau is clearly not tenable.