PAP crisis and the need to maintain the status quo

By Olu IBEKWE

Further to the 05 October 2023 memo suspending the Amended Rules of Procedure of the Pan-African Parliament, the Chairperson of the African Union Commission, H. E. Moussa Faki Mahamat on 18 October 2023 issued another memo with reference CCP/O/706/10.23 invalidating all the decisions purportedly taken on behalf of the Bureau by the Second Vice President of the Pan-African Parliament (PAP), Hon. Ashebir Gayo.

The decision was taken to safeguard the African Union (AU) from potential legal liability and was based on a legal opinion by the Office of Legal Counsel (OLC) which advised that the Bureau of the Pan-African Parliament which is supposed to consist of five (5) members has been reduced to two (2) members, namely the Second and Third Vice Presidents.

According to the OLC opinion, the Bureau does not have a quorum in its current composition to make administrative, financial and management decisions on the affairs and facilities of PAP and its Organs until the Bureau has the appropriate quorum.

“As such, the decision of the Chairperson of the Commission as capitulated in the memoranda of 05 October 2023 should be understood that pending the finalization of the mission of the Task Force and the resulting transitional measures to be proposed, the Bureau shall not take any administrative, financial and management decisions”.

“Any such decisions taken by the Bureau should be considered invalid and cannot be implemented to safeguard the Union from potential legal liability” concluded the OLC memo.

By the development, the Clerk of the Parliament, Ms. Lindiwe Khumalo was put in charge of the administrative, financial and management decisions on the affairs and facilities of PAP. This implies a stay of all parliamentary activities pending resolution of the issues.

But in a strange twist, the Clerk Ms. Khumalo who was supposed to be in charge of the administration of PAP, was suspended and chased out of the precincts of the Parliament by the same person whose authority over the administration of PAP had been stripped. What an irony!

The Second Vice President Hon. Dr. Ashebir W. Gayo who was given recognition by the AUC Chairperson, has refused to abide by the directive of the same authority that recognized him as Acting President and has even gone ahead to question the authority of the Chairperson to interfere in the running of the Parliament. Dr. Gay has since 23 August 2023, continued to run the affairs of the Pan-African Parliament (PAP) as a sole administrator.

This continued disregard of the Protocol that established the Pan-African Parliament, the Rules of Procedure of the Parliament as well as the directives from the AUC Chairperson by Dr. Gayo with impunity is a worrisome development and should be of serious concern to all lovers of the African continent. It portrays the Union in bad light especially at a time that the continent is battling with unconstitutional change of governments.

Assuming that the AUC Chairperson has been unable to exercise control over the actions of Dr. Gayo, how about the PAP staff particularly the one who accepted to be appointed Acting Clerk and has continued to implement directives from Dr. Gayo in violation of the AUC directives? So the AUC Chairperson does not have the power to call the staff of the PAP Secretariat to order? Does it not suggest complicity and double-dealing in the crisis rocking the Parliament?

The OLC made it abundantly clear that any decision taken by the Bureau should be considered invalid and cannot be implemented to safeguard the Union from potential legal liability. Why then has this not been implemented? Why has the necessary administrative measures not been put in place to safeguard the Union from unauthorized expenditures and misappropriation?

The AUC Chairperson, as the administrative head of the AU and his staff should not appear to be condoning actions that undermine the credibility of the Union as it can have serious and wide-ranging consequences. Credibility is a crucial element for an organization's success, and actions that erode it can negatively impact relationships with the public. Actions that undermine credibility often result in a loss of trust. The public may begin to question the integrity of the AU and its leadership. Credibility is closely tied to the Union’s reputation. Negative actions by the administrative head or his agents can tarnish the organization's image, leading to reputational damage that may take time to repair.

The latest information coming out of PAP is that Dr. Gayo has unilaterally scheduled a “Virtual Plenary” session to hold on 28 December 2023 to discuss modalities for election. As we know, this is a period when most National Parliaments are on recess and most parliamentarians return to their remote constituencies with network challenges.

Many questions are begging for answers. Having suspended the November 2022 Amended Rules of Procedure, \does the 2011 version contain any provision authorizing Virtual Sessions of the Parliament? How could a Bureau that is inquorate, authorize a plenary session? Was the 21-day notice for convening such a session as required by Rule 31(1) complied with? If there is reliance on the 14-day notice requirement of an Extra-Ordinary Session, was the requirement of Rule 29 for convening extraordinary sessions which states that two-thirds of the Pan-African Parliamentarians must by written notification, approve such a request complied with?

It is on record that following the suspension of the Amended Rules of Procedure, the AUC Chairperson reactivated his Task Team which visited the Parliament last month and whose report is expected to be submitted to the policy organs of the African Union for consideration during the 2024 AU Summit.

The Amended Rules of Procedure was only suspended temporarily and no final decision has been taken as required by Article 20 of the PAP Protocol. It then becomes imperative that nothing should change while awaiting the decision of the policy organs, consistent with the principle of maintaining the status quo while an administrative action or proceeding is underway. This concept is associated with the idea that parties involved in a dispute should not take actions that might alter the existing conditions, rights, or relationships related to the subject matter of the dispute.

The idea is to preserve the rights and interests of the parties as they were at the commencement of the administrative action, that is, as at the suspension of the Amended Rules. This helps prevent one party from gaining an unfair advantage or causing irreparable harm to the other party during the course of the proceedings.

The principle also aims to prevent prejudice or harm to any party caused by changes in circumstances while the administrative action is pending. Parties are generally expected to refrain from taking actions that could affect the outcome of the case.

Parties to an administrative proceeding are also discouraged from making unilateral changes or decisions that could impact the subject matter of the dispute, to prevent one party from altering the situation to its advantage as Dr. Gayo is trying to do.

The authority of the policy organs to make a pronouncement on the issue of incompatibility of the Amended Rules to the PAP Protocol are better preserved when the status quo is maintained. This allows the policy organs to address the dispute based on the conditions that existed when the Amended Rules were suspended. To do otherwise would amount to lawlessness and resort to self help.