Reconciling the AU Doctrine of Sovereign Equality with the Cessation of Membership of PAP

By Dr Maurice Ezuruike  (International Legislative Consultant)

 

i. Preamble: The transformation of the African Union (AU) in 2002 was a manifestation of the Pan-African vision for an Africa that is united, free and in control of its destiny anchored on sovereign equality with a solemn commitment to defend the sovereignty of its members.

 

Article 4 of the Constitutive Act of the African Union (AU) stipulates that the Union shall function in accordance with the principles of sovereign equality and interdependence among Member States of the Union.

 

This principle of sovereign equality has been the guiding philosophy in all operational engagements and inter-relationships amongst the Member States of the AU. It is predicated on mutual respect and deference and as further elaborated in section (g) of Article 4, prescribes non-interference by any Member State in the internal affairs of another.

 

ii. Background: The compelling interconnectivity of a sustained, consistent and uninterrupted retention of the mandate and tenure of a Member of the Pan African Parliament (PAP) to the mandatory doctrine of sovereign equality of the Member States of the AU becomes more glaring when you consider the strategic vision that guided the foundation of the AU which is to build “an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the global arena”. This is illuminated in the key policy thrust of the African Union which is to “promote Africa’s growth and economic development by championing citizen inclusion and increased cooperation and integration of African States”.

 

This fundamental objective with its focus on citizen inclusion embodies the aspirations that informed the establishment of the Pan African Parliament as an institution that embraces the hope and promises of the founding fathers of the African Union to build an integrated and peaceful Africa, “driven by its own citizens”.

 

This is further amplified in Article 17 of the constitutive Act of the AU which provided that in order to ensure the full participation of African peoples in the development and economic integration of the continent, a Pan African Parliament shall be established.

 

iii. Status of PAP: PAP was undeniably conceived as a conduit for the actualization of this aspiration where every member state will be accorded an equal platform to express itself in this vision of an integrated and peaceful Africa, “driven by its own citizens”. It is informed by this vision of citizen inclusion through its quest to provide a common platform for African peoples and their grass-roots organizations to be more involved in discussions and decision-making on the problems and challenges facing the continent.

 

Article 4 of the Protocol to the treaty establishing the African Economic Community relating to the Pan African Parliament (PAP Protocol) which provides for the composition of the Pan African Parliament states that each:

 

(1) Member States shall be represented in the Pan-African Parliament by an equal number of Parliamentarians; (2) each Member State shall be represented in the Pan-African Parliament by five (5) members, at least one of whom must be a woman; and (3) the representation of each Member State must reflect the diversity of political opinions in each National Parliament or other deliberative organ.

 

It is important to recognize that the emphasis of the provisions of Article 4 as shown in the preceding text is on “Member States”. This buttresses a widely acknowledged presumption that the institutional framework of debate as often advanced by the delegation of the Member States on the floor of the Pan African Parliament represents the policies and priorities of the Member States.

 

While membership of a National Parliament or any other deliberative organ of a Member State is an imperative institutional platform upon which the legitimacy of its membership at the Pan African Parliament is derived, it is critical to emphasize that once a Member of Parliament is accredited to PAP, the status of the Parliamentarian in PAP takes a new dimension and is transfused and transmuted to that of a representative of the Member State and no longer that of the National Parliament or other deliberative organ of the Member State that established the eligibility of their respective designations.

 

Consequently, when the designated Parliamentarian is vested with all initial parliamentary credentials and legitimately accredited to engage in PAP deliberative processes, any subsequent considerations of the Parliamentarians’ tenure, mandate and membership as well as the corresponding continuity of competency should be conducted in a manner that accords due deference and accommodation to the status of the Member State within the AU institutional framework and the Article 4 principle of sovereign equality.

 

Irrefutably, when the Pan African Parliamentarian undertakes a position on the chambers of the Pan African Parliament on any continental matter, the views espoused and the positions adopted are construed to reflect the views and position of the Member State and not the National Parliament upon which its initial eligibility to serve is established. This position is further strengthened by Article 5.4(f) of the PAP Protocol which provides that a member of PAP can be recalled by the National Parliament or other deliberative organ that designated him or her.

 

iv. PAP as a Platform for expression of Sovereign Equality: The preceding interpretation and application amplifies the characterization of the Pan African Parliament as an extension of the institutional platform for the expression of the Member State’s positions and priorities on the AU’s strategic vision and continental issues. Such right and opportunity of expression are anchored and predicated on the principle of sovereign equality of Article 4 of the AU Constitutive Act. Designed as a platform for the articulation of solutions to crucial continental challenges and issues, Member States are accorded equal rights of access through the Pan African Parliament to make inputs on matters of continental discourse through the representative of each Member State, see Article 4 (3) of the Protocol.

 

By implication, a denial of parliamentary privileges to a Parliamentarian duly designated by the Parliament of a Member State, is a denial of a fundamental right entrenched in the Constitutive Act of the African Union especially when that Member State’s status in the AU has not been compromised by either sanctions or other extenuating circumstances antithetical to full membership of the African Union. Although membership in the National Parliament of the Member State may be fundamental to establishing eligibility for the attribution of Parliamentary privileges, it derives legitimacy from the status of the Member State within the African Union.

 

For all practical purposes, the tenure and mandate of a member of the Pan African Parliament and his or her eligibility to engage in the parliamentary deliberative process are synonymous with an affirmation of the sovereign right of equality of the Member State of the African Union.

 

This contention is underscored in the fact that a Member of Parliament cannot participate in the Pan African Parliament if the Member State is under sanctions by the African Union even if the Parliament is not dissolved. However, it will be an affront to the sovereignty of the Member State if its representatives are denied access to the Pan African Parliament when the credentials and competency of those representatives have not been withdrawn by the entity duly constituted or capacitated to make such attribution or accord such right by the Member State.

 

v. Tenure, Mandate at PAP & Sovereign Equality: Irrefutably, any action and decision relating to the status, tenure and mandate of each designated parliamentarian must accord due deference to the principle of non-interference that is the bedrock of section (g) of the Constitutive Act of the African Union. Denial of membership on the basis of parliamentary electioneering processes in a Member State will, in the absence of a contravening directive through the African Union or a superseding designation by the Member State, contradict the principle of sovereign equality and right of consistent continuity in the retention of competency to participate on a continental platform as encapsulated in Article 4 of the Constitutive Act of the African Union and the PAP Protocol.

 

Undeniably, the Pan African Parliament remains an indispensable and necessary platform for the actualization of the AU strategic vision to build “an integrated, prosperous and peaceful Africa, driven by its own citizensand representing a dynamic force in the global arena” as it represents the only permanent and independent link between the people of Africa and the African Union.

 

It is on the premise of the above hypothesis that I believe that the drafters of the Protocol did not invoke the phrase “dissolution of Parliament” to describe the circumstance of “cessation of membership” for a Pan African Parliamentarian. They instead chose the phrase “ceases to be a member of Parliament” which when defined as in Rule 1 of the amended PAP Rules of Procedure, accommodates the potential break in the continuity of consistent representation and the vacuums that will arise from national Parliamentary transitions following dissolutions for electioneering schedule.

 

As a result of the diverse variances that exist between national electoral frameworks where in some jurisdictions as noted in global data on continental Parliaments, Parliaments are dissolved between one (1) to three (3) months prior to elections, while in some other jurisdictions, dissolution does not occur at all and Parliamentarians remain MPs until the date the new Members are sworn-in which occurs in some cases, months after the elections. The consequence is that if dissolution of parliament is invoked to determine cessation of membership, these varying electoral frameworks will entail that a member state may be denied right of representation on a matter before the continental parliament if their parliament is dissolved during the sitting. This will be incompatible with the explicit intent of the framers of the AU Constitutive Act and the PAP Protocol where sovereign equality and right of consistent uninterrupted representation were respectively endorsed as their benchmark. Above all, parliamentary elections in Member States are conducted under various domestic electoral laws which the doctrine of sovereign equality precludes another Member State from inquiring into.

 

The definition provided for such key term as “ceases to be a member” accommodates and amplifies the intent of the AU constitutive Act and the provisions of Articles 5 and 12 of the PAP Protocol. PAP Rules of Procedure defines “ceases to be a member” as when notification is received 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 as prescribed by Rule 8(1).

 

This definition is not controverted in the Protocol and has engendered continuity in the status, tenure and mandate of Members of the Pan African Parliament, minimized instabilities from frequent contestations for leadership positions at PAP with its attendant consequences of division and chaos and ensured consistency in the representations for Member States as encapsulated in Article 4 of the Protocol.

 

vi. Conclusion: Considering that there is no other institution within the African Union governance architecture that shares tangible nexus to the grassroots communities and the people of Africa than the Pan African Parliament for the articulation, expression and actualization by the Member State on the AU strategic vision, denying representation to any Member State at any sitting of the Pan African Parliament on the basis of “dissolution” for national electoral calendar will be a travesty to the principle of sovereign equality which is the bedrock of the foundation and transformation of the AU.