The AUC Task Team visit to PAP and matters arising

The African Union Commission (AUC) six-member Task Team on the Situation at the Pan African Parliament (PAP) led by the Deputy Chief of Staff to the AUC Chairperson, Mr. Ratebaye Tordeta, was supposed to visit the PAP from Wednesday 15^th to Monday 20^th November 2023.

However, the Team had to depart Johannesburg a day ahead of schedule, on Sunday 19 November due to alleged concerns over their safety arising from the belligerence displayed during the meetings by the Second Vice President of PAP, Hon. Dr. Ashebir Gayo.

According to a source who spoke confidentially, the Team had a difficult time with Hon. Gayo’s over-bearing influence and dictatorial tendencies. Dr. Gayo reportedly blocked the other Bureau Members, the Clerk of the Parliament, Ms. Lindiwe Khumalo and the Regional Caucus Chairpersons from being interviewed by the Task Team. He told them that neither the AUC Chairperson nor the Task Force has authority to give directives to PAP. He declared that he was the only one with the power to determine who should and should not appear before the Task Team. Yet this was the same AUC Chairperson that Dr. Gayo ran to suspend the Amended Rules of Procedure of PAP. It was also the AUC Chairperson who recognized him as the Acting President of PAP, a position which is unknown to the PAP Protocol. The same AUC Chairperson is being told that he has no authority over PAP and everywhere is quiet!

Dr. Gayo told the Task Team that if they invite the other Bureau Members, the Clerk and Regional Caucus Chairpersons, he would not allow them into the PAP precincts as if the PAP premises are his personal property. Consequently, the meeting with the Clerk took place outside the precincts of the Parliament and that of the Regional Chairpersons had to take place virtually after the Team returned to Addis Ababa. This is how terribly dictatorial things have gotten at PAP.

Hon. Dr. Gayo attempted to sabotage the attendance of the only other member of the Bureau, Third Vice President Hon. Lucia Maria Mendes Goncalves Dos Passos by instructing staff not to issue a ticket for her trip to South Africa. She had to be funded by her National Parliament to attend.

A request by the Team for a meeting with staff of the Parliament was also blocked. The meeting was initially announced by the Acting Clerk, Mr. Gali, but was later cancelled on the instructions of Hon. Dr. Gayo who declared that the leader of the Task Team had no authority to request a meeting with staff. He made it clear that he is the only one that could instruct the staff to meet with the Task Team. The meeting with staff was, therefore, aborted and the Task Team left without meeting staff.

He even tried to determine who should be in the Task Team and not only insulted the Task Team but also walked out at some point in protest against one member of the Task Team whom he felt should be withdrawn.

Following allegations against some members of the Bureau by Dr. Gayo, a member of the Task Team enquired whether Hon. Chief Charumbira had been invited to meet with the Task Team to clear himself. This reportedly infuriated Hon. Dr. Gayo who proceeded to insult the Member, accusing him of drafting a very poor report on the reform of the Pan African Parliament. Hon. Dr. Gayo almost exchanged blows with him and even went further to say that the Member should not have been in the Task Team because he had written a very bad report on PAP. The Member who did not take kindly to the insults, accused Hon. Dr. Gayo of duplicity and dishonesty. He reminded Hon. Dr. Gayo that he, together with Chief Charumbira, had praised him in Kigali after the report on the reform of the PAP was presented yet now he was accusing him of presenting a poor report.

Some members of the Task Team were reportedly displeased with Dr. Gayo’s behaviour and demanded an apology from Dr. Gayo. The Team Leader also took exception to Dr. Gayo’s conduct and cautioned him that in questioning the Member’s presence on the Task Team, he was, in essence, questioning the AUC Chairperson, His Excellency, Moussa Faki Mahamat, who had appointed members of the Team.

However, Hon. Dr. Gayo refused to apologize and declared that Chief Charumbira was no longer a Member of PAP and was not entitled to be invited to the meeting with the Task Team notwithstanding the fact that he had in the course of the meeting, made allegations against Chief Charumbira. He then stated categorically that if the Task Team decided to invite Chief Charumbire, he (Gayo) will instruct the Police not to allow him into the PAP premises!

It was at this point that the Team Leader left the room with Hon. Dr. Gayo in an apparent attempt to persuade him to apologize to the Team Member. They returned after a while but Hon. Dr. Gayo still refused to apologize to the member.

After the insults and threats, the Task Team abruptly left the PAP precincts and had to use their hotel as an alternate venue to interview the Clerk and then left South Africa a day earlier than their intended departure date. The Clerk of PAP was thus not allowed into the PAP precincts on the orders of Dr. Gayo.

First, it needs to be pointed out that the Leader of the Team engaging in ex-parte communication with Hon. Dr. Gayo during the proceedings outside the presence and hearing of the other members of the Team as well as the other parties leaves much to be desired. It demonstrates a prior and continuing relationship between the two individuals which raises concerns about fairness, transparency, and the appearance of bias. Taking Dr. Gayo outside the view and hearing of the other participants undermined the integrity of the process and compromised the principles of natural justice.

The leader of the Team should reasonably have known that the African Union has rules and regulations that govern the conduct of such administrative proceeding. Under the rules, communications must be conducted openly, with all parties having an opportunity to be heard and to respond to any information presented to the Team Leader. It also raises serious ethical and procedural concerns as it conveyed on Dr. Gayo, the appearance of an unfair advantage potentially jeopardizing the perceived fairness of the proceedings.

Another disturbing aspect of the proceedings is that it was Hon. Dr. Gayo who decided those that appeared before the Team. For example, other members of the Bureau, the Chairpersons of the Regional Caucuses and even the Chairperson of the Committee on Rules, Privileges, Ethics and Privileges were denied access to the precincts of the Parliament by Dr. Gayo. This is the height of dictatorship and unfortunately the Leader of the Team failed to protect the rights of those people to fair hearing. This also resulted in the Team’s inability to meet with the staff which indeed, is quite unfortunate because one of the founding principles of the African Union as stated in the Constitutive Act of the African Union is the promotion of democratic principles and institutions, popular participation, the rule of law and good governance. See also Article 3 of the Protocol that established the Pan-African Parliament (PAP Protocol).  

In administrative proceedings, the right to be heard is a fundamental principle rooted in the principles of natural justice and fairness. It ensures that all parties involved in a proceeding have the opportunity to present their case, provide evidence, and address arguments. It was therefore wrong and amounts to pandering to the whims and caprices of Dr. Gayo for Chief Charumbira and the First Vice President, Prof. Massouda whose rights as elected members of the Bureau with subsisting tenure under PAP’s Rules of Procedure, to have been denied of the opportunity to physically appear before the Team. This is particularly worrisome as there has not been a valid declaration vacancy in their respective offices as required by the Rules of the Parliament. It was this same Dr. Gayo that unilaterally, in clear violation of Rules 6.5 and 8(5) of the PAP’s Rules, declared the vacancies and the AUC without recourse to the Rules, gave their approval to such dictatorial action. The Team should not have allowed a party to an administrative proceeding to insist that another invited party should not be heard. Let us hope that an adverse inference will be drawn against Dr. Gayo.

Why did the Team not interrogate as to whether the Rules of Procedure was complied with in the declaration of those vacancies since the AUC Chairperson’s letter suspending the Amended Rules was issued on 5 October 2023 whereas Dr. Gayo’s declaration was dated 23 August? Did the Chairperson’s October 5 letter suspending the Rules have retroactive effect which would have been inconsistent with established and settled legal principles? Has there been a plenary session of the Parliament after the May 2023 session where the vacancies could have validly been declared? This should have been looked into since the Team’s first term of reference was “to make findings, conclusions and recommendations on the issue of the PAP Rules of Procedure and overall functioning of PAP.”

Under the AU governing rules and regulations, administrative procedures are designed to be impartial and provide a fair hearing to all parties involved. As a result, attempts to prevent another invited and interested party from being heard ought to have been viewed negatively as it is inconsistent with the principles of due process.

The failure of the Team who were at the precincts of PAP under the authority of the AUC Chairperson to control the proceeding but instead, ceded control to Dr. Gayo puts a question mark on the fairness and integrity of the proceedings. Dr. Gayo’s categorical statement that if the Task Team decides to invite people he did not approve of, that he will instruct the Police not to allow them into the PAP premises says it all. All the Deputy Chief of Staff could say was that he would have to find a way to make sure that the other Bureau Members are heard outside the precincts of the Parliament. In other words, he backed off! The only logical explanation for this anomaly is that certain members of the Team had been captured and were there to do a hatchet job for Dr. Gayo, hence his insistence on the terms of the capture! I hope that the Team’s Report will prove me wrong.

On the issue of quorum to adopt the Amended Rules, there is a settled  principle that he who alleges, bears the burden of proof. An attendance record is maintained for each sitting of the Parliament. The question then is, was that record which is maintained by the Secretariat produced to confirm number of members that attended that session and in any case, what was the required quorum for the sitting? How many Member States were under AU sanctions for reasons of Article 23 and 30 of the Constitutive Act of the African Union as at November 4, 2022? How many were not able to attend due to elections in their countries? Why did the team not demand for this documentary evidence which would have settled the issue?

Since a representative of the AUC Office of Legal Counsel (OLC) is a member of the Team, did the Team address itself as to whether compliance with the decisions of the policy organs of the AU by PAP is dependent on quorum during plenary? In other words, can PAP’s inability to comply with the decisions of the policy organs be justified by lack of quorum? This is particularly relevant given the fact that the decisions of the policy organs are binding on all the organs, institutions, departments and member states of the AU.

It would be recalled that the 41^st Ordinary Session of the Executive Council in Lusaka EX.CL/Dec.1174(XLI) directed 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. The Executive Council also directed “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”. PAP stated that they complied with this directive by urgently reviewing the rules of procedure in close collaboration with the Office of Legal Counsel (OLC) who sent a representative during the process. Has the OLC contradicted this allegation that they were duly informed and sent a representative during the amendment process? PAP has also stated that copies of the Amended Rules were after translation into the official AU languages, sent to the OLC in January 2023 and did not receive any adverse report but were commended for complying with the directives of the policy organs? Why are they now singing a different tune? Is the credibility of that office not at stake?

The Rules of Procedure of both the Assembly and the Executive Council made it clear that abstention of member states shall not prevent the adoption of decisions by consensus. No one has argued that those provisions violate the Constitutive Act of the African Union. Rule 19 (4) of the Rules of Procedure of the Assembly states that, “Abstentions by Member States eligible to vote shall not prevent the adoption of decisions by the Assembly by consensus”. Also Rule 19(4) of the Rules of Procedure of the Executive Council states that, “Abstentions by Member States eligible to vote shall not prevent the adoption by the Executive Council of decisions by consensus”. Conversely, abstentions by Member States shall not prevent PAP from adopting amendments to the Rules of Procedure by consensus especially when done to comply with the decisions of the policy organs of the Union which are mandatory.

On the issue of incompatibility of the Amended Rules with the PAP Protocol, the Parliament has stated that it only added definition clauses, specifically the definition of “ceases to be a member”, “vacancy” and “returning member”, which did not contradict the provisions of Article 5 and 12 of the PAP Protocol on the tenure of Members, but, in fact, gave practical application to the principle of rotational leadership which was the primary purpose for the amendment of the Rules.  These definitions flow from and complement Rule 6.5 of the Rules of Procedure which has been operational since 2011 without any claims of violating the Protocol.

It should be noted that there is a difference between the dissolution of a national parliament due to an unconstitutional change in government and dissolution of parliament for election in a Member State. While the Constitutive Act provides for the imposition of sanctions in the event of dissolution due to an unconstitutional change of government, it will amount to a violation of due process to visit the same sanction on a Member State simply because it is going for parliamentary election. The fact of going for an election should not have a terminating effect on the tenure of a member of PAP. Rather, it is the outcome of the election, specifically when a member losses national election that should have a terminating effect on such a member’s tenure at PAP.

Care must be taken not to institutionalize instability and leadership crisis at the Pan-African Parliament because of the varying tenure of national parliaments of Member States. Is the AUC Team also implying that Rule 6.5 which has been in operation since 2011 violates the Protocol? To settle this matter, the OLC should interpret Rule 6.5 for us.

In all, one would have expected the Team to be very careful of its activities given its past history. The Team was constituted as an Ad Hoc Committee/ Visitation Team about two years ago during the period of suspension of parliamentary activities at PAP. Having submitted its report on the basis of which the October 2021 Executive Council decision EX.CL/Dec.1128(XXXIX) was issued, the Ad Hoc Committee should have adjourned sine die. Unfortunately, the Committee was used to frustrate the implementation of the October 2021 Executive Council decision to the point that the Bureau of the Assembly had to intervene. See my opinion article on the Report of this Committee published on 20 May 2022, (https://www.africanparliamentarynews.com/2022/05/pap-election-session-report-of-auc.html?m=1).    

The October 2021 decision of the Executive Council could not be implemented because this same Committee insisted on consultations with regional caucuses as a precondition. It is important to draw the attention of the policy organs of the AU to the report submitted by this Committee after it met with members of this same group in Addis Ababa on February 23 and 24, 2022 where it was claimed that MPs wanted rotation to be implemented only after ratification of the Revised Protocol/ amendment of the Rules and that venue for the session be changed from South Africa. The said report claimed that MPs had resolved not to attend election session if convened in South Africa as their security could not be guaranteed. But we all know how peaceful the June 2022 election session went and MPs attended in full. Subsequent plenary sessions and Committee Sittings have been held without incident. The Team discredited itself in 2022 and any report submitted should be subjected to the strictest scrutiny especially given that the same MPs that attended the 23 and 24 February 2022 consultations because they were vehemently opposed to the implementation of the October 2021 Executive Council decision on rotation are the same MPs who have staged a comeback to attack rotation by fighting to set aside the Amendments to the rules which implemented rotation by PAP. Once you set aside the amendments to the rules, you also set aside rotation which is what this fight is all about.

See also:  PAP Crisis and the Expectations from the AUC Task Force

https://www.africanparliamentarynews.com/2023/11/pap-crisis-and-expectations-from-auc.html