Revisiting the Suspension of PAP’s Rules of Procedure

By Olu Ibekwe

On 6 October 2023, the Chairperson of the African Union Commission (AUC), H. E. Mahamat Faki issued an Inter-office Memorandum in which he purported to have suspended the Rules of Procedure of the Pan-African Parliament (PAP) adopted on 04 November 2022.

Faki stated that his action was based on a legal opinion which revealed “clear incompatibilities of the various provisions of the Revised Rules with the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (PAP Protocol). He stated that he acted in his “capacity as the Legal Representative of the Union and depository of the legal instruments of the Organization”.

Not done with the suspension of the Rules, Mr. Faki went on to instruct “the Task Force on the situation at the Pan-African Parliament (PAP) to undertake a mission in order to shed light on it and for a Report to be presented to the upcoming ordinary sessions of AU policy organs in February 2024. The Task Force will also advise on the appropriate transitional measures to be effected to safeguard the interest of the Union”.

Unfortunately, Mr. Faki failed to state clearly and specifically the portions of the Amended Rules of Procedure which he claimed were incompatible with the PAP Protocol. And even then, he should have, out of respect for PAP as the third highest organ of the Union, requested the plenary to revisit those provisions. Also having suspended the Amended Rules and “directed” PAP to revert to the 2011 amendment, Faki should have allowed the Parliament to continue to conduct her business in accordance with the 2011 Rules.

It needs to be observed that Faki’s memorandum was written on a letter-head meant for inter-office communication. Was he trying to pass the message that he had by fiat, placed PAP as one of the organs under his supervision?. Activating a supposed existing Task Force on PAP shows that the whole charade was premeditated, which probably was unknown to those members of PAP who played into Faki’s game plan. I am sure that they did not bargain for the reactivation of a supposed Task Force on PAP and the “appropriate transitional measures to be effected to safeguard the interest of the Union”.

Why should the Chairperson address members of PAP in such a condescending manner? First of all, members of PAP are members of National Parliaments of Member States who were designated to PAP. That means that at home, they confirm those to be appointed ministers (including members of the Executive Council) and ambassadors (members of the Permanent Representatives Committee). That was why the founders of the Union, in their wisdom and recognition of their status, placed PAP as the third highest organ of the Union. Being representatives of the Member States of the Union whose decisions represent the wishes of the citizens of the Continent, they deserve respect from Faki.

Faki’s letter violated the Principles and objectives upon which the African Union was founded:  The Constitutive Act of the African Union (AU) which is the supreme law of the Union, set out the fundamental objectives and the principles which will inform and underline how the Union should function.

The Constitutive Act spells out fourteen objectives of the Union some of which have bearing on Africa’s political, economic and social development.  For example, Article 3(g) stipulates that an objective of the Union shall be to “promote democratic principles and institutions, popular participation and good governance”. Equally, Article 4 spells out sixteen principles upon which Union shall function such as equality of states (Article 4.a); respect for democratic principles, human rights, the rule of law and good governance (Article 4.m);  rejection of impunity (Article 4.o) and the condemnation and rejection of unconstitutional changes of government (Article 4.p).

This implies that the actions taken by all the organs, institutions and departments of the Union must necessarily take these objectives and principles into consideration. Clearly, Faki’s actions definitely undermined democratic principles within PAP and its organs, and deprived them of popular participation by members of the PAP in amending their Rules of Procedure. Above all, the manner in which the Second Vice President pronounced himself the Acting President without regard to the rotation entrenched in the PAP Protocol amounts to an unconstitutional change of power and does not encourage good governance.

Faki’s letter violated specific provisions of the Constitutive Act: As the supreme law of the AU, all the organs, institutions and departments are, without exception, obligated to comply with the provisions of the Constitutive Act. Article 5 of the Act lists PAP as the third highest organ of the AU and this established hierarchy should have beeen respected. The founders of the Union had cogent reasons for such listing and this was underscored by Article 17(2) which provides that the composition, powers, functions and organization of PAP shall be defined in the Protocol relating thereto (PAP Protocol). In other words, nothing shall be done outside the provisions of the PAP Protocol which was adopted by Member States of the Union. Faki lacks the authority to override decisions of the Member States in ratifying the PAP Protocol.

The function of the Chairperson of the African Union Commission (AUC), as provided for in Article 8.1(w) of the Statute of the African Union Commission is to implement the decisions of the policy organs and report to the Executive Council, through the PRC, cases of non-compliance with the rules and regulations of the Union. It does not include any supervisory role in the implementation of Article 17(2) of the Constitutive Act or power to interpret the Act.

Article 26 of the Act provides that the “Court shall be seized with matters of interpretation arising from the application or implementation of this Act. Pending its establishment, such matters shall be submitted to the Assembly of the Union, which shall decide by a two-thirds majority”. So, there is an issue of whether Faki’s letter of 6 October 2023 wherein he purported to have suspended actions taken by PAP violated Article 17(2) of the Constitutive Act which made it mandatory that PAP must be organized in the manner prescribed by the PAP Protocol as ratified by AU Member States. There is also an issue as to whether Faki can validly set up a Task Force on PAP without regard to the constraint imposed by the said Article 17(2) of the Act.

The AUC Chairperson does not have the authority to suspend PAP’s rules of procedure: Article 12(1) of the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (PAP Protocol) states that ‘The Pan-African Parliament shall adopt its own Rules of Procedure on the basis of two-third majority of its entire Members’. This is a mandatory requirement as evidenced by the use of the word “shall” implying that no other organ can interfere in the exercise of this responsibility.

PAP on 04 November 2022 exercised its authority to amend the Rules of Procedure which for all intents and purposes, is an internal affair of the Parliament. Any argument as to whether any of the provisions of the Rules are incompatible with the PAP Protocol to warrant interference by another organ of the AU is an issue that requires interpretation of both Article 17(2) of the Constitutive Act and Article 12.1 of the PAP Protocol and therefore falls under Article 26 of the Constitutive Act and Article 20 of the PAP Protocol. Both articles mandate that “the Court shall be seized with matters of interpretation arising from the application or implementation of this Act. Pending its establishment, such matters shall be submitted to the Assembly of the Union, which shall decide by a two-thirds majority”.

Article 12.1 of the PAP Protocol requires two-thirds majority vote of MPs to adopt the Parliament’s Rules of Procedure. Under Article 20 of the Protocol, a similar two-thirds vote of the Assembly is required to decide on any issue arising from the interpretation of the PAP Protocol. Decisions of the Assembly under Article 7 of the Constitutive Act requires two-thirds majority vote. Similarly, Executive Council decisions are required by Article 11 of the Constitutive Act to be taken on the basis of same two-thirds majority vote. How then can one justify the Chairperson of the Commission unilaterally taking a decision that requires two-thirds majority vote of the members of the policy organs of the Union? Does Faki’s position equate to two-thirds of the Assembly?

This is inconsistent with the vision of the founders of the African Union who opted to establish a Union that is anchored on respect for democratic principles and institutions, popular participation, good governance and the rule of law as articulated in the Constitutive Act.  Accordingly, the purported suspension of the Rules of Procedure of PAP by Faki if not set aside, will result in an absurdity.

As the custodian of the AU legal Instruments, Faki lacks the authority to interpret: The AUC Chairperson’s statement that he acted in his “capacity as the Legal Representative of the Union and depository of the legal instruments of the Organization” is misplaced because a custodian cannot arrogate to himself the authority to interpret legal instruments in his custody.

It needs also to be emphasized that PAP Rules of Procedure are indeed, internal working documents of the Pan-African Parliament and do not fall in the class of legal instruments that the AUC Chairperson is a depositary of. Neither the Constitutive Act nor the PAP Protocol requires PAP to deposit its Rules of Procedure with the AUC.

Above all, Faki’s role as a custodian of the AU Legal Instruments (which does not include PAP’s Rules of Procedure is procedural in nature and did not confer any substantive authority. It cannot be expanded to include the powers to pronounce the validity of any legal instrument. This function, according to Article 12.1 of the Protocol, is that of the Pan-African Parliament alone to the exclusion of any organ or functionary.

Appointment of a Task Force violates the Constitutive Act: As observed earlier, Article 17(2) provides that the composition, powers, functions and organization of PAP shall be defined in the Protocol relating thereto (PAP Protocol). This implies that nothing shall be done outside the provisions of the PAP Protocol which was adopted by Member States of the Union. Therefore, Faki lacks the authority to override the decisions of the Member States who ratified both the Constitutive Act and the PAP Protocol.

The PAP Protocol in Articles 4 and 5, made provision for how the Parliament shall be constituted and also made it clear in Article 7 of the PAP Protocol that Membership of the Pan-African Parliament shall not be compatible with the exercise of executive or judicial functions in a Member State.

Therefore, the appointment of the Task Force made up of officials of the AUC who are not members of any National Parliament of a Member State, and not elected into the Bureau of PAP, is in clear violation of Article 12.5 of the PAP Protocol which states that, “The President and Vice Presidents shall be the officers of the Pan African Parliament. The officers, under the direction and control 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…” The appointment of the Task Force undermines the role of the PAP Bureau and Members of Parliament as elected officials who will become subservient to civil servants appointed by the AUC Chairperson. The PAP, by virtue of its standing as an Organ of the Union, cannot be answerable to employees of the Commission. It should, in fact, be the other way round as the PAP conducts oversight on all Organs of the Union except the Assembly and Executive Council which are the first and second organs respectively as per Article 5 of the Constitutive Act.

Collateral considerations: Mr. Faki had stated that his action was based on a legal opinion by the Office of Legal Counsel in the African Union Commission. However, PAP has made it clear that the OLC was invited during the Rules amendment process and indeed, sent a representative that took part in the process. PAP also stated that it sent copies of the Rules to the OLC in January 2023 and was in fact, commended for successfully amending its Rules to comply with the decisions of the policy organs of the AU. How then could the same office which has been in possession of the Rules since January 2023, now turn around almost nine months later to issue a contrary legal opinion? The answer may not be far-fetched.

Daily Maverick a South African based publication on 12 September 2023 reported that the African Union’s Administrative Tribunal has rescinded AU Commission Chairperson Moussa Faki Mahamat’s appointment of the AU Legal Counsel and blasted Faki for “obstructing justice” by refusing to give the tribunal an internal report into the legal counsel’s suspect qualifications.

In a story African Union tribunal blasts AU Commission chair Faki for ‘serious obstruction of justice’ Daily Maverick, reported that in a judgment handed down on 1 September by its President, Sylvester Mainga, and two other judges – Jamila B Sedoi and Paulo D Comoane – the tribunal also concluded that Faki’s “unlawful” appointment of Burundian Guy-Fleury Ntwari as Legal Counsel last year was symptomatic of a general tendency of the AU to appoint people with “strong connections” regardless of their qualifications.

“The tribunal added that Ntwari’s appointment “wholly vindicates” Sabelo Mbokazi, the president of the AU staff association, who had written to Faki in 2020 calling on him to “dismantle the rampant corrupt recruitment and appointment cartel” at the AU Commission. 

“Faki had “become a law unto himself” and had reduced the AU Commission to “lawlessness – a serious obstruction of justice” and had caused “reputational damage” to the AU”. 

“This showed that Faki’s assurances that the recruitment of the legal counsel was conducted in line with the AU Commission’s rules and regulations were “totally misplaced and misleading”. 

“The tribunal therefore holds that the recruitment process was flawed.” The paper wrote.

This was the circumstances under which the OLC that had earlier commended PAP for complying with the decisions of the policy organs of the AU, can thereafter turn around to do a hatchet job which Faki claimed to have relied on to suspend PAP Rules of Procedure. Need I say more?