PAP Crisis and the Expectations from the AUC Task Force

Opinion by OLU IBEKWE

The Task Force set up by the Chairperson of the African Union Commission to advise him on the issue of Pan-African Parliament (PAP) Rules of Procedure and overall functioning of PAP, is currently undertaking a working visit with the high officials of the Parliament from 15 - 20 November 2023.

 The six-member Task Force is led by Mr. Ratebaye Tordeta, Deputy Chief of Staff of the Chairperson with members drawn from other departments including the AU Reform Unit and the Office of Legal Counsel.

Initially constituted in September 2021 following the crisis on rotation that resulted in the suspension of parliamentary activities at PAP, the Task Force was reactivated following the suspension of the PAP Amended Rules of Procedure, adopted on 4 November 2022 by the AUC Chairperson through a letter dated 05 October 2023.

The Task Force provides an opportunity for the AUC Chairperson to redeem Commission’s image and restore the credibility of the African Union as an institution which operates in accordance with the principles established by the Constitutive Act.  As stated in Articles 3 and 4 of the Constitutive Act, they include respect for democratic principles and institutions, popular participation, rule of law, good governance and rejection of unconstitutional changes of government.

In this regard, whatever recommendations that the Team makes must be in line and consistent with provisions of Article 17(2) of the Constitutive Act of the African Union which is the supreme law of the African Union as well as the Protocol that the defined composition, functions, powers and organization of PAP.

What was the cause of the current crisis at PAP?  The current crisis at PAP fits that old folklore that if a witch cries at night and a child dies in the morning, we do not need to go the soothsayer to ask what killed the child. On Monday 21 August 2023, the AUC Chairperson wrote to the PAP Bureau requesting for a response within five (5) days to the allegations that the Amended Rules violated Articles 5 and 12 of the PAP Protocol. The contents of the complaint was not disclosed neither were the identity of the complainants which suggested a case of ambush.

Article 5 of the Constitutive Act placed PAP as the third highest organ of the Union. The Statute of the African Union Commission states that “The Commission shall be the Secretariat of the Union and shall act as such in conformity with Articles 5 and 20 of the Constitutive Act of the African Union.” In other words, the Commission is mandatorily required to observe the hierarchy established by Article 5 of the Constitutive Act as well as restrict itself to its primary responsibility of being the Secretariat of the Union. It was therefore out of order, demeaning, disrespectful and not courteous for the AUC Chairperson to have written a letter to the PAP Bureau with a five-day deadline to respond. Worst still is the AUC Chairperson’s refusal to meet with the Bureau even when it is alleged that he granted audience to the complainants. There is a saying that you cannot shave a man’s hair in his absence. Fair hearing is a fundamental principle.

Before the PAP President Hon. Senator Fortune Charumbira proceeded on leave on 21 August 2023, he appointed the Third Vice President, Hon. Lucia Maria Mendes Goncalves Dos Passos as Acting President, in line with the principle of rotation as espoused in Article 12(7) of the PAP Protocol and Rule 19 of the PAP Rules of Procedure. Through the letter, he also established a rotation roster for the other Vice Presidents spanning through the first quarter of 2024.

As at the August 21 letter, the PAP President had the lawful authority to issue such a letter as his stay in office had no encumbrances, unless there is something that the AUC Chairperson is not telling us. In other words, there could not have been an issue of leadership vacuum or crisis that would have warranted the intervention by the AUC Chairperson in what was an internal affair of the Parliament which the President had taken care of through the roster.

But the crisis arose due to the refusal of Hon. Dr. A. W. Gayo who, in an ambitious effort to seize the leadership of the Parliament, ignored the President’s August 21 letter and declared himself the Acting President. He then went on to declare vacancy in the seat of the First Vice President who was duly sworn in during the May 2023 Session. This was intended to position himself as the highest ranking Bureau member. He also declared vacancy in the office of the President, blocked the Third Vice President from entry into the precincts of the Parliament, and moved into the President’s office. And we are looking for what caused the crisis?

Well, the crisis at PAP was caused by the ambition of the Second Vice President to install himself as the President of the Parliament and who in order to achieve it, had to dismantle all the obstacles on his way. These included suspending the Amended Rules of Procedure, declaring vacancies in the offices of the President and First Vice President, blocking the Third Vice President from having access to the PAP Precincts and dismissing the Bureau staff. Unfortunately, these dictatorial actions appeared to have been aided and abetted by officials of the Commission. The Task Team must work hard to correct this impression. 

Was the decision to suspend the Amended Rules of Procedure reasonable? In my humble opinion, the decision by the AUC Chairperson to suspend the Amended Rules of Procedure duly adopted by the Parliament in exercise of its powers under Articles 12.1 and 11.8 of the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (PAP Protocol) is both unreasonable and unlawful. The PAP Protocol which was ratified by the Member States and so, binding on all officers, organs, institutions, departments and Member States of the Union, gave PAP the right, to the exclusion of any other organ, to adopt or amend the Rules of Procedure of the Parliament. This flows from Article 17(2) of the Constitutive Act which provides that the composition, functions, powers and organization of PAP shall be defined in a Protocol relating thereto. See also Article 2.1 of the PAP Protocol (“Member States hereby establish a Pan-African Parliament the composition, functions, powers and organization of which shall be governed by the present Protocol”).

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”. This provision is also similar to Article 26 of the Constitutive Act.

By the clear and unambiguous provision of both Article 20 of the PAP Protocol and Article 26 of the Constitutive Act, the judicial powers of the African Union are vested in the Court of Justice and pending its establishment, such matters shall be submitted to the Assembly which shall determine by a two-thirds majority. The requirement that a decision on the interpretation of the protocol must be supported by two-thirds majority of the Assembly is quite weighty and should have been taken into consideration by the AUC Chairperson. Unless he is of course implying that his position is equivalent to two-thirds majority of the Assembly.      

In light of the foregoing, it is evident that the suspension of the Amended Rules of Procedure was not reasonably considered. The reasonable standard is a test that asks whether the decisions made were legitimate and designed to remedy a certain issue under the circumstances at the time. It involves a standard look at both the ultimate decision and the process by which a party went about making that decision.

The AUC Chairperson should have been guided by the understanding that the reasonableness of a decision is a critical ethical and practical consideration in assessing the validity and acceptability of his action. This involves evaluating whether the action is rational, justifiable, and fair within a given context. Reasonableness encompasses a combination of logic, morality, and societal norms, requiring public officials to weigh the consequences of their actions and consider the impact on those affected by such decision.

In ethical terms, reasonableness often aligns with principles such as justice, fairness, and the institutional well-being of PAP. A reasonable action is one that can be defended through a thoughtful analysis of its motives, methods, and outcomes. It takes into account relevant information, ethical standards, and the perspectives of various stakeholders.

Worst still, the letter suspending the Rules of Procedure also gave approval and recognition to the forceful take-over of the leadership of PAP and the unprecedented declaration of vacancies in the offices of the President and First Vice President.

The role of the Office of Legal Counsel: Another very disturbing aspect of this matter is an allegation of the submission of a doctored version of the Rules by the Second Vice President on the basis of which the Office of Legal Counsel made his evaluation. This ought to be properly investigated by the Task Force as forgery of official documents is a serious misconduct that should not be tolerated. If the document submitted in support of the complaint is determined to have been falsified, then all actions taken on the basis of the document should be reversed.

PAP has consistently maintained that it worked with the Office of the Legal Counsel (OLC) who assigned an officer during the amendment process. The officer wrote a positive report post the amendment process. Also, soft copies of the final draft of the Rules of Procedure were served on the Office of the Legal Counsel on 14^th and 27^th January 2023 and no contrary notations were advised. If any adverse notations had been made by the OLC, PAP would had had the opportunity to adopt such amendments. 

This implies that the credibility of the OLC is at stake here. How could this same office which issued a positive report have turned around to issue an adverse opinion on the same document? Could it be explained by the fact that this time around, it was presented with a different (doctored) document to evaluate?

Only the offending portions of the Amended Rule should have been suspended. It is a settled principle of law that if any law, rule or regulation is inconsistent with the provisions of the enabling statute, that rule or regulation shall, to the extent of the inconsistency, be void. In other words, the suspension should have specifically targeted the offending portion of the Amended Rules of Procedure and should not have affected those rules that were meant to comply with the decisions of the policy organs of the AU which are binding on all the organs, institutions and member states of the Union. Suspending the entire Amended Rules was an over-kill.

Setting aside the offending provision of the Rules of Procedure will have invalidated the specific part of the rules that is deemed objectionable, inappropriate, or in violation of the PAP Protocol.. This could have served to rectify the issues with the Amended Rules while preserving the rest.

One of the consequences of the suspension of the Amended Rules is that the AUC Chairperson has in effect, suspended the implementation of the various Executive Council decisions which called for the urgent amendment of the rules of PAP to include both the principle of rotation and sequence of rotation. This then leads to the question of whether the AUC Chairperson has the authority to suspend the implementation of the decisions of the policy organs of the AU?

Was the declaration of vacancy in the Office of the First Vice President lawful? By recognizing the unprecedented, unilateral and self-serving declaration of vacancy in the Office of the First Vice President by the Second Vice President, the AUC Chairperson allowed his exalted office to be used to execute the illegal take-over of the leadership of the Pan-African Parliament.

It is on record that the First Vice President, along with the other members of the Mauritania delegation were duly cleared for swearing in by the PAP Committee on Rules, Privileges, Ethics and Discipline and sworn in during plenary at the Second Ordinary Session of the Sixth Parliament. The Second Vice President, Hon. Dr. Ashebir Gayo fought hard to frustrate the swearing in of the Mauritania delegation because it will adversely affect his plan to take over the leadership of the Parliament. Having forcefully taken over the leadership of the Parliament, he then declared vacancy in the office of the First Vice President which then makes him the most senior Vice President by ranking. This is outrageous and ought to have been condemned by the AUC Chairperson.

I believe that the AUC Chairperson’s office should have carried out due diligence investigation on the status of the First Vice President before recognizing the self-serving declaration of vacancy by Dr. Gayo. The visit of the Task Force presents an opportunity to remedy this injustice.

Since the Task Force members are in South Africa, I urge them to take a critical look at Rule 6 of the Rules of Procedure as well as the Hansard of the day the Mauritania delegation was sworn in to see whether there is any provision of the Rules that gave Dr. Gayo the authority to unilaterally set aside the swearing in of Mauritania’s delegation thereby setting aside a plenary decision.

In this regard, I also urge the Task Team to review the Pan-African Parliament Hansard Report, Fourth Ordinary Session of the 5^th Parliament, May 2021 pages 43 to 52 and be guided by the principle established therein by the plenary. The record will show that there was an objection to the swearing in of the South Sudan delegation on the ground that the members of the South Sudan Parliament were recently appointed and that the Parliament had not been formally inaugurated, and its members were yet to be sworn in as parliamentarians back home. Relying on Rule 6, the objection was over-ruled and the delegation was sworn in. Instructively, one of the parliamentarians who spoke stated: “When did we start to point or question the validity of Members of Parliament from another country? When did we start doing that? It is the responsibility of the Clerk.” In other words, it has been the position of the Parliament not to question the basis for swearing in the delegation of a Member State. I urge the Task Team to go through the May 2021 Record of Proceedings if they want to be objective in their investigation. It will also expose the hypocrisy and double standard by one of those who championed the swearing in of the South Sudan delegation in May 2021.

Was there a valid declaration of vacancy in the Office of the President? The Rules of Procedure is clear on the issue of declaration of vacancy, specifically in Rule 6.5. Declaration of vacancy is triggered by the National Parliament or any other deliberative organ of a Member State’s notification to the Clerk of PAP that the status of an elected or designated Member has become incompatible with membership of Parliament. Upon receiving such notification, the Clerk will then notify the Bureau and the President who shall then declare before the House that the membership of the person has been terminated.

Therefore, the declaration of vacancy in the Office of the President under Rules 6.5 is not self-executing but is triggered by the receipt of notification from the National Parliament of Zimbabwe which in this case, has still not happened. Secondly even if such a notification was received, Rule 6.5 requires the Clerk to then notify the Bureau and the President who shall then declare before the House that the membership of the person has been terminated. There has not been either a properly constituted Bureau to advise the President or a plenary session where such a declaration of vacancy could have been made. It is on record that the last plenary session of PAP was in May 2023.

Again, it is unfortunate that in the absence of evidence of valid declaration of vacancy, the AUC Chairperson granted recognition to such a self-serving declaration of vacancy in the office the President in furtherance of Hon. Gayo’s grand scheme to declare himself President.

The Task Force should take a look at the past record of proceedings of the Parliament to confirm how a valid declaration of vacancy is made. For example, on April 6, 2013, a declaration of vacancy was made in the office of a Member of the Bureau from Egypt as outlined in the record of proceedings as per the extract below:

Hon. Bethel Amadi presiding: “Honourable colleagues, I have received the report from the Clerk of Parliament and we are waiting for communication from the Speaker of the Shoura Council of the Arab Republic of Egypt stating that the Egyptian Peoples’ Council has been dissolved and for the time being, the Shoura Council is now considered as the only elected Parliament in Egypt. In this connection and in accordance with our Rules of Procedure, Rule 8 (e) of the Rules of Procedure provides that the seat of a member shall become vacant if he or she ceases to be a member of the national Parliament or the deliberative organ. And by this implication, our colleague, Hon. Moustafa El Gendy, who at all material times was the Second Vice-President of the Pan-African Parliament, no longer being a member of a constitutive or legislative body in his home country, no longer can hold the Office of the Second Vice-President. Pursuant to the foregoing and in accordance with rules 8(5) of our Rules of Procedure, I formally declare the position of Second Vice-President of Pan-African Parliament vacant. The Clerk of Parliament will announce the order for elections for replacement.

It is instructive to note that the declaration of vacancy in the above case was restricted to the chamber of the Egyptian Parliament which sent the notification thereby confirming the fact that it is the notification from the National Parliament that triggers the declaration of vacancy.

Conclusion

The Pan-African Parliament was established on March 18, 2004 and has over the years, established some customs and practices that should have serve as precedents. We cannot overlook those established practices in order to accommodate the ambition of the Second Vice President.

The issue of transitional arrangements to be made should not arise because it is not only alien to the Constitutive Act and PAP Protocol but also undemocratic. Rule 16(10) provides for three-year tenure for members of the Bureau and this should be respected. We know that four members of the Bureau are still members of their respective National Parliaments and their designation to PAP have not at any time, been withdrawn. I have perused the 2011 version of the Rules of Procedure but did not come across any provision that requires that a member should be punished for going for national election. This is because tenure of an elected member of the Bureau can only be terminated if his or her designation to PAP is withdrawn by the Member State or due to misconduct unless we are saying that going for national election amounts to misconduct. Rule 16(11) states that, “In the event of a vacancy of an office during the term of office of a member of an organ of the PAP, the member elected in replacement shall complete the term of his or her predecessor. It may be renewed once”. The tenure of the Bureau is three years, implying that election of Bureau shall take place every three years. Election within the three year tenure of the Bureau becomes necessary to replace a member whose status has become incompatible with the membership of PAP.

The Task Force should therefore play the crucial role of investigating and gathering accurate, objective information about how the crisis at PAP was caused by the Second Vice President to achieve a narrow political objective. The team should uncover the facts surrounding the presentation of a doctored Amended Rules on the basis of which the document was suspended. They should investigate the circumstances surrounding the invalid declaration of vacancies in the offices of the President and the First Vice President. In this regard, the team is hereby urged to approach this task without preconceived notions or biases, focusing solely on uncovering the truth.

It is hoped that the work of the Task Force will provide the opportunity for the AUC Chairperson to assure the impartiality of his exalted office and restore the credibility of the African Union as an institution which is governed in accordance with the principles and objectives established by Articles 3 and 4 the Constitutive Act.