By OLU IBEKWE
The saying that old habits die hard appears to be currently
playing out at the Pan-African Parliament (PAP) where a few of its members have
refused to come to terms with the recent amendments to the Rules of Procedure
of the Parliament, adopted on 04 November 2022. The reason behind their
opposition is an example of the saying that if you constantly tell lies over a
period of time, people may start to believe it as true.
Recall that the PAP was on 01 June 2021 shut down following
disagreement over the application of the principle of rotation in the election
of the President of the Parliament. Since the inception of the Parliament in
2004, the Southern and Northern Regions of the continent which have ten (10) and seven (7) countries
respectively, have not been able to produce the President of the Parliament due
to their numerical disadvantage. So they argued that the President of the
Parliament must come from any of those two regions and pointed to various
decisions of the policy organs of the African Union (AU) that requested “the PAP to
comply with the principle of geographical rotation among the five regions of
the Africa in future elections of the Bureau”. Some parliamentarians insisted that the rotation could only
be implemented when the Revised Protocol is ratified, notwithstanding the
directives from the AU. And to enable them perfect their plan of installing a
President from outside the two regions, they insisted that the venue for the
election session be moved away from South Africa.
The Executive Council of the African Union during her session
on 14 October 2021, considered the issue and decided that the
elections should be in line with the principle of rotation that was adopted by
PAP in 2007 and that the upcoming elections of PAP should be held at its Head
Quarters in Midrand, South Africa, as per its Protocol. The decision was in line with its previous decisions
dating back to 2016.
In view of
the nature of the disagreements that characterized the botched 01 June 2021
Bureau election, the Executive Council directed the OLC to conduct and manage
the elections process and elaborate the elections modalities within the
established Rules and Regulations of the Union and the relevant Executive
Council decision on the principle of rotation.
In previous
Bureau elections, the four (4) Vice Presidents required to be elected under the
Protocol to the Treaty Establishing The
African Economic Community Relating to the Pan-African Parliament (PAP
Protocol) were ranked on the basis of the number of votes obtained during the
election with the highest vote getter being declared the First Vice President
and least declared Fourth Vice President. This was based on a mistaken interpretation
Article 12.4 of the PAP Protocol which states that “The Vice-Presidents shall
be ranked in the order of first, second, third and fourth initially, in
accordance with the result of the vote and subsequently by rotation.”
However, the
Modalities issued by the OLC reversed the trend with the four Vice Presidents
being ranked in order of rotation. The Bureau election was held on 29 June 2022
wherein the candidate of the Southern Region, Hon. Chief Fortune Charumbira was
elected President with about 85% of the votes cast.
Appreciating the need to institutionalize relevant Plenary Resolutions of
the Parliament and integrate
the various decisions of the Executive Council and decisions of the African Union (AU) Policy Organs into
PAP’s internal procedures and practices, PAP decided to embark on revision of its Rules of
Procedure. These include Executive Council Decisions EX.CL/Dec.979(XXXI) adopted in June 2017 (called upon the Pan-African Parliament,
“to apply the African
Union values, rules, and regulations in managing all
activities of the organ,
including rotation of the Bureau and presidency...”), EX.CL/Dec.1018(XXXII) adopted in June 2018
(where it requested, “the PAP to comply with the principle of geographical
rotation among
the five regions of the Africa in future elections of the Bureau”; and Doc. (EX.CL/1294XXXIX) of October 2021, (directing that the elections should be
in line with the principle of rotation and only
regions that have not previously held
the position are eligible to present candidates for
election of the PAP President
through their Regional Caucuses), EX.CL/Dec.1174(XLI)
of July 2022 (directing PAP to apply the rotation formula outlined in the
Modalities for Election of Bureau Members of the Sixth Pan African Parliament
in all future elections of the Bureau and directing the Office of the Legal
Counsel, in close collaboration with the Secretariat of the PAP, to urgently review the Rules of Procedure
of the PAP to ensure alignment with African Union values, rules, and
regulations as well as established practices of the Union including the
principle of geographical rotation). These decisions incorporated the
principle of the Assembly
Decision, identified as Assembly/AU/757(XXXIII) of February 2020 that directed
the Office of Legal Counsel (OLC) to examine and align legal instruments and
Rules of Procedure of AU Organs and request OLC to review the Rules of
Procedure of the Pan-African Parliament and report back to the Executive
Council. These seminal decisions, resolutions and assembly decisions underscored
the imperative of rule review exercise.
The amendment process not only ensured that PAP remains formidable in the
effective exercise of its parliamentary responsibilities, it also ensured that
the Rules of Procedure conforms more profoundly to evolving global realities
and international best practices.
As part of facilitating the process, the five (5) Regional
Caucuses were availed with a Report of the Gap Analysis and the Report of the
Committee on Rules, Privileges and Discipline on identified gaps. This followed
a workshop of the Committee of Rules, Privileges and Discipline held from the 5th
to the 06th of September 2022. After considering these reports and
other potential areas of amendments, Regional Caucuses presented their reports
in a Plenary held on 26 October 2022. As agreed in Plenary, a document on
colour coding of all the agreements and disagreements was prepared. The
document tracked and consolidated interventions by Members through their
Regional Caucuses. After a preliminary consideration of the synthesized report
by the Committee on Rules, Privileges and Discipline on 01 November 2022, a meeting
was convened between the Bureau, the Chairpersons of the Regional Caucuses and
the Chairperson of the Committee on Rules, Privileges and Discipline to further
harmonize the areas of divergence by the Regional Caucuses in their represented
capacity as mandated by the Regional Caucuses. Members were assisted in the
process by a team of legal experts with affiliations in various capacities at
national parliaments, supra-national-parliaments and other legislative
institutions across the continent. A representative from the AU Office of the
Legal Counsel was also present.
In adopting
the amendments, Members noted the different
constitutional parliamentary practices and arrangements in Member States in
relation to dissolution arising out of electoral processes. In some
jurisdictions, Parliaments are dissolved three (3) months prior to elections
and in other jurisdictions, dissolution do not occur. In other instances,
Parliamentarians retain their competencies until another Parliamentarian
elected in their place is sworn in. This created conflicting circumstances with
potential conflicting interpretation as to when a Parliamentarian ceases to be
a Member of Parliament. It became
imperative for institutional stability and continuity for the Pan-African
Parliament to define certain concepts that underlie status, tenure and mandate
of Members which is currently missing in the Rules of Procedure. This will not
only avoid disruptions in the status of Members, it will also give practical
application to those provisions in the Protocol and the Rules of Procedure that
relate to the Status of Members of Parliament. The relevant provisions are
encompassed in Article 12(8) of the Protocol and Rule 8(1) of the Rules of
Procedure. To give practical effect to
the principles reflected in this governing instrument and particularly to the
Protocol as it relates to tenure and mandate of members, there arose a need to
provide definitions to key areas such as: “ceases to be a member” as provided
in Rule 8 (1) (e) of the rules of procedure and Article 12 (8) (e) of the
Protocol as well as the definition of the term “Vacancy” as contemplated in the
provisions of Rule 8 (5) and other relevant areas of the rules of procedure.
Accordingly, the following recommended definitions were provided to the
Regional Caucuses and was accepted:
“Ceases to be a Member” arises when
notification is received by Parliament from the National Parliament or other
deliberative organ that a Member has not been re-elected or re-designated to
the Parliament following elections in a Member State or as prescribed by Rule 8(1) of the Rules
of Procedure.
“Returning
Member” means a Member who has been re-elected or re-designated by a
National Parliament or other deliberative organ of the Member State;
“Vacancy” occurs when a Member has not
been re-elected or re-designated by the National Parliament or other
deliberative organ of a Member State to the Parliament or as prescribed by Rule 8(1) of the Rules
of Procedure.
On the definition of “ceases to be a member” and “vacancy” it was
noted that when national parliaments are dissolved, parliamentarians still
retained their competences and continue to receive their salaries till
replacements are elected and sworn in. It is only when replacements are elected
and sworn that an old member loses his or her seat.
Following exhaustive discussions at each of the five Regional
Caucuses, the Parliament convened in plenary on Friday 04 November 2022
where they adopted by consensus, the amendments to the Rules of
Procedure. The Amended Rules of Procedure have been successfully used since
then.
Unfortunately,
it is the same group of parliamentarians that opposed the implementation of the
principle of rotation that are now, raising issues about the amended rules due
to political considerations and exigencies. Their aim is to hijack the
leadership of the parliament by hook or crook, a feat which they could not
achieve during the June 2022 election.
As stated
earlier, the involvement of the OLC in the amendment process was to ensure that
the decisions of the policy organs of the AU on the issue of rotation, were
incorporated into the Rules. Secondly, the amended Rules were delivered to the
OLC promptly after adoption. Since no adverse report was received from the OLC
after more than seven (7) months, it will therefore be reasonable to conclude
that there were no objectionable provisions in the amended rules.
In any case,
if any member feels that there are provisions that need to be further reviewed,
there are robust provisions in Rules 92 and 93 on how to go about them. But to
see the rule from the perspective of actualizing a narrow political interest
and hold the hold parliament to ransom leaves much to be desired especially in
this era of unconstitutional changes of governments in Africa. PAP must not be
allowed to slip into crisis and risk being shut down again.
Relevant provisions of the
Constitutive Act of the AU and PAP Protocol: Article 4 of the Constitutive Act
of the African Union (AU) states that the Union shall function in accordance with
certain enumerated principles. Among them is ‘Respect for democratic
principles, human rights, the rule of law and good governance”. See Article
4(m) of the Constitutive Act. The rule of law, as we know, is a principle of
governance in which all the organs, institutions, and departments of the Union,
are accountable to the Constitutive Act and other governing instruments duly
issued by the policy organs of the Union and ratified by Member States.
The Constitutive Act in Article 17(2) states
that “the composition, powers, functions and organization of the Pan-African
Parliament (PAP) shall be defined in a protocol relating thereto” (PAP
Protocol). Article 2(1) of the PAP Protocol emphasized that “Member States
hereby establish a Pan-African Parliament the composition, functions, powers
and organization of which shall be governed by the present Protocol”.
Article 12(1)
of the PAP Protocol gave the Parliament power to adopt its own Rules of
Procedure. In the event of any issue relating to the interpretation of the PAP
Protocol, Article 20 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.”
On
the composition of the Parliament, Article 4.2 of the PAP Protocol states that “Each Member
State shall be represented in the
Pan-African Parliament by five (5) members, at least one of whom must be a
woman.” It should be emphasized that the use of the word “shall” connotes a
mandatory requirement that at all times, each Member State shall be represented
at PAP except for reasons enumerated in Article 23 and 30 of the Constitutive
Act.
For
the Election, Tenure and Vacancies, Article 5 of the Protocol states:
1.
The Pan-African Parliamentarians shall be elected or designated by the
respective National Parliaments or any other deliberative organs of the Member
States, from among their members.
2.
The Assembly shall determine the beginning of the first term of office of the
Pan-African Parliament at its session immediately following the entry into
force of this Protocol.
3.
The term of a Member of the Pan-African Parliament shall run concurrently with
his or her term in the National Parliament or other deliberative organ.
4.
The seat of a Member of the Pan-African Parliament shall become vacant if he or
she:
a)
dies;
b)
Resigns in writing to the President;
c)
is unable to perform his or her functions for reasons of physical or mental
incapacity;
d)
Is removed on grounds of misconduct;
e)
ceases to be a Member of the National Parliament or other deliberative organ;
f)
Is recalled by the National Parliament or other deliberative organ; or
g)
Ceases to be a Pan-African Parliamentarian in terms of Article 19 of this
Protocol.
Furthermore, Article 12.8 provides the basis for the declaration
of vacancy in the office of the President or Vice President:
The Office of the President or Vice-President shall become vacant
if he or she:
a)
Dies;
b)
Resigns in writing;
c)
is unable to perform his or her functions for reasons of physical or mental
incapacity;
d)
Is removed on grounds of misconduct;
e)
ceases to be a Member of the National Parliament or other deliberative organ;
f)
Is recalled by the National Parliament or other deliberative organ; or
g)
Ceases to be a Pan-African Parliamentarian in terms of Article 19 of this
Protocol.
Mandate of a member of PAP.
Articles 4.2, 5.1 and 5.3 makes it clear that the mandate of a member of PAP is
that of the Member State that elected or designated him or her.
Mandate is defined as the authority granted by a constituency to act as its
representative. In the case of PAP, the constituency is the Member State.
Inherent in the power to hire, is the power to fire hence, the PAP Protocol
made it clear in Articles 5.1 that it is the Member State that elects or
designates a member of PAP. The definitions of “ceases to be a member” and
“vacancy” under the amended rules, took into consideration, that it is he who
hires, that has the power to fire.
The
PAP Protocol cannot be construed in such a way as to imply that a Member State
can be denied of representation at PAP. If after election in a member state, a
designated member loses election into the National Parliament or other deliberative
organ, such a member will then be replaced by the member state.
A
member of PAP can also be recalled by the National Parliament whose mandate he
or she holds under Article 5.4(f) and 12.8(f) as happened in 2019 when a former
First Vice President from Tanzania was recalled by Tanzania’s Parliament. The
Pan-African Parliamentarians from a Member State which withdraws from the Community
shall automatically cease to be Pan-African Parliamentarians (Article 19).
Since
the mandate belongs to the member state, a member of another state delegation
cannot demand that a delegation from another member state should not be
accredited to PAP. The PAP Protocol only recognizes the authority of member
states to designate its members to PAP without giving veto power to any Member
State.
Sovereign equality of Member
States. Article
4.a of the Constitutive Act states that the AU shall function in accordance
with the principle of “Sovereign equality and interdependence among Member
States of the Union”. This implies that all Member States enjoy
sovereign equality. They have equal rights and duties and are equal members of
the Union, notwithstanding differences of an economic, social, political or
other nature. Equality of states means that no other state can question the
legality of official acts of another state.
Sovereign equality have been accepted to include the following elements:
(a) States are juridically equal; (b) Each State enjoys the rights inherent in
full sovereignty; (c) Each State has the duty to respect the personality of
other States; (d) The territorial integrity and political independence of the
State are inviolable.
As we know, Parliamentary elections in member
states are conducted in accordance with the electoral laws of the member state
and its treaty obligations, for which no other Member State has the authority
to question or interfere with. And as stated earlier, the delegation of a
Member State to the PAP is the exclusive right of that Member State. Accordingly,
no other Member State, not to talk of a member of another State delegation to
PAP, can raise objections as to how a State delegates her members to PAP. Not
even the PAP itself except to ensure compliance with Article 7 of the PAP
Protocol which states that Membership of the Pan-African Parliament shall not be compatible
with the exercise of executive or judicial functions in a Member State.
Effect of dissolution of National Parliament
of a Member State: It
is important to point out that the PAP Protocol does not in anywhere,
explicitly state that the dissolution of a national parliament shall trigger
the termination of membership or affect the status of a PAP member or even constitute
grounds for cessation of membership.
But
for emphasis,
dissolution of a national parliament within the context of African countries, is for purposes of an election, and does in any
way, affect the tenure of any member of parliament especially where the
Constitution have stipulated the term of parliament. In essence, when a
national parliament is dissolved, the parliament itself continues its existing
term and can be recalled in the event of an emergency as happened about two
years ago in Lesotho. Members of
parliament remain in office earning salary until the new parliament convenes
for the first time. In essence, dissolution in that case, occurs because elections
must be scheduled and held before the parliament reaches the end of its fixed
term. In any case, the issue of dissolution
and its effect on the tenure of members of the National Parliament is an internal
affair of such a Member State, determined by the Constitution of that Member
State and not subject to International law.
Collateral considerations: In view of the fact that the principle
of sovereign equality (as per Article 4.m of the Constitutive Act) is well
established in the African Union and that Articles 4 and 5.1 of PAP Protocol
makes it clear that it is the Member States that designates members of PAP, any
declaration of vacancy in the seat of the President or First Vice President by
a member of the delegation of another member state should be seen as an
unfriendly action that should trigger diplomatic consequences. There is no
evidence that Mauritania or Zimbabwe whose sole prerogative it is to designate members
of their respective delegations to PAP at any time informed the Clerk of the
Pan-African Parliament that the designation of Hon. Hon Professor Massauda
(Mauritania) or Hon. Chief Fortune Charumbira (Zimbabwe) were at any time
withdrawn to warrant the declaration of vacancy in their respective offices.
Mauritania
held parliamentary elections in May this year wherein Prof Massauda was
reelected and re-designated to PAP. Zimbabwe held elections on August 23 and
the Parliament was inaugurated on September 7 within a space of two weeks.
Someone petitioned the AUC to insist that both the Mauritania and Zimbabwe
delegations should not be allowed to participate in the activities of PAP to in
essence, enable them to perfect their plan to declare the offices of the President and First President vacant
and conduct elections to replace them before they can be allowed back into PAP!
My goodness, when did PAP become a venue for jungle politics?
The time has
come for the Ambassadors and Foreign Ministers of Mauritania and Zimbabwe to
lodge formal complaints with the Chairperson of the African Union Commission as
well as the Ambassadors and Foreign Ministers of States whose designated
parliamentarians are instigating these politically motivated acts. The
infringement of the rights of Mauritania and Zimbabwe under the sovereign
equality of states and interference with their right to designate their country
delegations to PAP are acts not expected from a friendly nation. PAP as a
parliament, is governed by the provisions of the Constitutive Act of the
African Union, the PAP Protocol, its Rules of Procedure and Code of Conduct for
members.
Conclusion.
It is obvious that the amendments to the rules do not violate the
Protocol, but is intended to comply with and deepen the rotation
principle. To avoid further disruption to PAP business the current amended
rules should be respected and any intention or desire to introduce further
amendments should comply with the Protocol and PAP Rules of Procedure regarding
the process for amendments. It is imperative that the AUC consults with Bureau
members, Chairpersons of Regional Caucuses, and the Chairperson of the
Committee on Rules, Privileges, Ethics and Discipline as a matter of urgency in
order to move forward and avoid further crippling of PAP operations. In terms
of Rule 19, the legitimate Acting President during the absence of H. E
Charumbira is the 3rd Vice President Hon. Lucia Passos.
Article
20 of the 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.” The allegation that the amended rules are in
violation of the PAP Protocol is an issue that borders on the interpretation of
the Protocol and should be referred to the Permanent Representatives Committee
to table before the policy organs of the AU for determination.
The
governments of Zimbabwe and Mauritania are advised to invoke their right under the
sovereign equality of Member States of the AU to complain about the surreptitious
attempt to deprive them of their right to designate their respective delegations
to the Pan-African Parliament without interference by any other Member State.
Finally,
since the OLC was consulted during the amendment process to ensure that the
decisions of the policy organs of the AU on the issue of rotation, were
incorporated into the Rules and since the amended Rules were delivered to the
OLC after adoption without receiving any adverse report on the document after
more than seven (7) months, it will therefore be reasonable to conclude that
there were no objectionable provisions in the amended rules.
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