By Olu Ibekwe
On Monday 15 January 2024, the
Chairperson of the African Union Commission, H.E. Moussa Faki Mahamat delivered his opening remarks at the
ongoing 47th Ordinary Session of the Permanent Representatives Committee (PRC).
The PRC is made up of the Permanent Representatives of Member States to the
Union and is expected to sit till 26 January.
As per Article 20 of the
Constitutive Act of the African Union, the PRC is charged with the
responsibility of preparing the work of the Executive Council which is expected
to meet from 14 – 15 February 2024. The PRC prepares the draft agenda for the
meeting as well as the draft decisions for adoption which makes it one of the
most powerful organs of the AU.
A hint that the crisis at the
Pan-African Parliament (PAP) is one of the issues expected to be discussed at
the ongoing PRC sitting was given by the AUC Chairperson in his opening speech
when he said:
“I would particularly like to stress
the recurring crisis within the Pan-African Parliament, which requires
appropriate responses. It cannot last and be accepted. It is an important body
in the Institutional Architecture of the Union. Missions and active reflection
were carried out on the issue. Clear and courageous decisions must be taken, in
accordance with the relevant law and sound practices. A political and technical
adaptation of the texts must be carried out, without delay, in accordance with
the relevant decisions of our competent authorities.”
With profound respect to the AUC
Chairperson and his staff, I make bold to say that there is a policy disconnect
between the comments quoted above and the conduct of the AUC on the crisis at
the Pan-African Parliament.
When
I use the word "disconnect", I mean a lack of connection, coherence,
or alignment between different elements, ideas, or components. It implies a
divergence, disparity, or mismatch that results in a lack of harmony or
understanding. In this context, a policy disconnect arises when there is a gap
or inconsistency between stated policies and their implementation. The result
is confusion, inefficiencies, or challenges in achieving organizational goals.
If one may ask, what are these recurring crises within the
Pan-African Parliament which the AUC Chairperson alluded to, and why do they
keep recurring? While we await the details of the report expected to be
submitted to the PRC, I shall attempt a reflection on his presentation.
The first and most important legal
instrument of the African Union is the Constitutive Act which sets out the
codified framework under which the African Union is to conduct itself. The
Constitutive Act in Article 3.g states that one of the objectives of the Union
is to promote democratic principles and institutions, popular participation and
good governance. The Constitutive Act also enumerated some principles upon which
the Union was founded and include the sovereign equality of states, respect for
democratic principles, human rights, the rule of law and good governance. The
Union pledged to promote social justice to ensure balanced economic
development, condemns and rejects unconstitutional changes of governments.
Article 5 of the Constitutive Act
lists the organs of the Union and then went to, in subsequent sections,
prescribe their functions and powers. It is also important to mention that the
Constitutive Act contains eleven (11) preamble statements and the tenth (10th)
preamble states ”FURTHER DETERMINED to take all necessary measures to strengthen our
common institutions and provide them with the necessary powers and resources to
enable them discharge their respective mandates effectively”. I shall return
to this statement later.
The Pan-African Parliament is listed
as the third organ in hierarchy by Article 5 of the Constitutive Act. Article
17(2) of the Constitutive Act states that “The composition, powers, functions
and organization of the Pan-African Parliament shall be defined in a protocol
relating thereto. The Protocol to the Treaty Establishing the African
Economic Community Relating to the Pan-African Parliament (PAP Protocol) was duly ratified by Member States of the
Union such that no official of any of the organs of the Union is at liberty to
alter or depart from the provisions of the PAP Protocol without the required ratification
by the Member States. The AUC Chairperson is no exception.
Articles
11(8) and 12(1) of the PAP Protocol gave the Parliament the power to adopt or
amend her Rules of Procedure and where there is any issue with regard to the
interpretation of the PAP Protocol, Article 20 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.”
From the above legal instruments
of the Union as ratified by Member States, PAP is the third highest organ of
the Union and its composition, powers, functions and
organization are defined in the PAP Protocol. This means that any action taken
by the Chairperson of the AUC which are contrary to the provisions of the PAP
Protocol shall, to the extent of the inconsistency, be declared void by the
policy organs pursuant to the judicial powers of the Union under Article 20 of
the PAP Protocol. Let
me now take us through the facts of the current crisis.
Following
the crisis that led to the suspension of parliamentary activities at the
Pan-African Parliament on 01 June 2021, and the intervention of the policy
organs of the Union in resolving the crisis, an election was held on 29 June 2022
where a new leadership of PAP emerged. The Rules of Procedure of the Parliament
in Rules 16(10) provides for three year tenure for the members of the Bureau.
The
new Bureau immediately swung into action and was able to restore the Parliament
to normalcy within a short period of time. This included amending the Rules of
Procedure of the Parliament, adopted on 04 November 2022 to comply with the
various decisions of the policy organs of the AU.
Recall
that the directive by the policy organs of the AU was that PAP should amend her
Rules of Procedure as a matter of urgency to comply with the African Union
values, rules, and regulations in managing all activities of the organ,
including rotation of the Bureau and presidency. And since the decisions of the
Executive Council are binding on all the organs and institutions of the AU, the
newly elected leadership of the parliament worked overtime to ensure
compliance. And they received commendation for this.
Based on previous experiences
with respect to disruptions in the leadership of the Parliament (as alluded to
by the AUC Chairperson in his opening statement), it became imperative for institutional stability and continuity for the
Pan-African Parliament to define certain concepts that underlie status, tenure
and mandate of Members which were then missing in the Rules of Procedure and the Protocol. The motivation was to avoid the observed disruptions in the status of Members, ensure stability and to give
practical application to those provisions in the Protocol and the Rules of
Procedure that relate to the Status of Members of Parliament as encompassed in
Article 12(8) of the Protocol and Rule 8(1) of the Rules of Procedure. Since it
appears from the opening remarks that the AUC Chairperson shares this belief,
why then did he suspend the amendments to the rules, thereby throwing the
parliament into another avoidable crisis which the amendments were supposed to
prevent? Does this not amount to policy inconsistency?
The amendments to the rules provided definitions to key areas such as: “ceases to be a member” as
provided in Rule 8 (1) (e) of the rules of procedure and Article 12 (8) (e) of
the Protocol. Rule
1 of the amended Rules 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 consistent with existing Rule 6.5 which has been in operation since 2011. Furthermore, the
Parliament provided definition of the term “Vacancy” as
represented in the provisions of Rule 8 (5) and other relevant areas of the
rules of procedure to occur when a member has not been re-elected or re-designated
by the National Parliament or other deliberative organ of a member state to the
Parliament or as prescribed by Rule 8(1). Again, this definition is consistent
with existing Rule 6.5. In the same vein, a “Returning Member” was defined to be
a Member who has been re-elected or re-designated by a National Parliament or
other deliberative organ of the Member State.
Article
4.2 of the PAP Protocol
requires that each Member State shall be represented in PAP by five members
unless of
course, they are under sanctions pursuant to Articles
23 and 30 of the Constitutive Act. This is consistent with the doctrine of
sovereign equality of states as it is the sole prerogative of a Member State to
designate her delegation to PAP. Therefore, the AUC Chairperson does not have
the power under both the Constitutive Act and PAP Protocol to interfere with or
reject the designation by a Member State as was done in the case of Mauritania
whose delegation was cleared by the Rules Committee and sworn in during the
Second Ordinary Session of the Sixth Parliament. The First Vice President from
Mauritania was cleared for swearing in, was actually sworn in during plenary
session and resumed her office as First Vice President during plenary. Where
then did the AUC Chairperson derive the authority to set aside a decision taken
during plenary session without recourse to the Parliament? When did PAP become
a department under the supervision and control of the AUC Chairperson to the
point of treating the First Vice President of the Parliament with ignominy?
It
is unfortunate that the AUC Chairperson by executive fiat, without consulting
the PRC members who represent Member States of the Union at Addis Ababa, and without
authority either in the Constitutive Act or the PAP Protocol, rendered the
Bureau of the Parliament inquorate to take any decisions. And the Chairperson
is talking to us about the crisis at the PAP? Why was it necessary to nullify
the swearing in of the First Vice President and on what
authority was it done? Was it to install his preferred candidate as the Acting
President? Why did he ignore the mandatory provision of Article 12.7 of the
Protocol which stipulates that in the absence of the President, “the Vice
Presidents shall act in rotation”?
Has
the AUC Chairperson not by that action, violated the PAP Protocol by creating an
“Office of the Acting President” when the PAP Protocol only provided that the
position should rotate among the Vice Presidents in the absence of the
President?
Under
existing Rule 6.5, the process of declaration of vacancy in the seat of a
member of PAP is triggered by the receipt of communication
from the
National Parliament of a Member State to the Clerk of PAP to the effect that a member has not
been re-elected or re-designated to PAP. This is consistent with the doctrine of
sovereign equality of states as contained in the Constitutive Act. Upon the
receipt of such communication, the Clerk of PAP will notify the Bureau and the
President will now declare the vacancy before the plenary, as required by Rule 8(1). It is the issuance of such a letter by the
Parliament of the
Member State that triggers the process for a declaration of vacancy. Denial of representation at PAP cannot be triggered by mere political expediency or quest to
create vacancy at the Bureau. The AUC Chairperson failed to appreciate that there
are procedural safeguards in the Parliament’s Rules of Procedure to prevent
abuse of the process as has happened in the instant case.
This
implies that in amending the Rules of Procedure of the Parliament in compliance
with the directives of the policy organs of the AU, PAP also ensured the political and technical adaptation of the texts to ensure that the disruptions
which has been the bane of the Parliament, becomes a thing of the past. In
other words, the principle of political adaptation was the motivation for the
adoption of critical definitions underlying the application of rotation.
The new Bureau of the Parliament did
achieve a lot as acknowledged by the Executive Council during the 42nd Ordinary
Session, 15-16 February 2023 in Addis Ababa Ethiopia. See EX.CL/Dec.1198(XLII).
The
Executive Council commended PAP for the resumption of work following the June
2022 election of the Bureau and appreciated the activities implemented within a
short time period in 2022 in spite of limited budgetary resources. The Council
congratulated PAP and the PRC for holding a successful joint Retreat, in
Johannesburg on 19 - 20 December 2022, in line with Executive Council Decisions
EX.CL/Dec.1174(XLI) and EX.CL/Dec.1028(XXXII) and then requested a reconsideration
of the 2023 budget of the PAP in order to enable the Parliament to meet its
institutional and operational needs and to effectively fulfill its mandate. Was
this request for a reconsideration of the 2023 budget of the PAP undertaken? I
am sure that the AUC Chairperson has the answer but your guess is as good as
mine.
The
above published Executive Council decision commending PAP was made four months
after the adoption of the amendments to the Rules of Procedure. In other words,
PAP was already on the right track and the issues noted by the AUC Chairperson
in his opening speech had been adequately taken care of by the amended rules. The
question now is, on whose interest did the AUC Chairperson act in interfering
in the affairs of PAP which resulted in the current crisis? Given the state of affairs
as at February 2023 as noted by the Executive Council, how was PAP plunged into
another crisis? The straight answer is that it is the interference of the AUC
Chairperson into what is otherwise, an internal affair of the Parliament that
resulted in the current crisis.
As
stated earlier, one of the founding objectives of the Union as per Article 3.g
of the Constitutive Act is to promote democratic principles and institutions,
popular participation and good governance. The minority in any democratic setting
will always have their say but the majority will always have their way. The
fact that the AUC Chairperson took such a serious decision to suspend the
amendments to the Rules of Procedure adopted by the plenary without consulting
or even granting audience to the affected members of the Bureau, the leadership
of the Parliament’s Rules Committee as well as Chairpersons of the five
Regional Caucuses is clear evidence that the AUC Chairperson was not mindful of
the interests of the majority of the parliamentarians which leaves much to be
desired. There is a saying that you cannot shave a man’s hair in his absence.
Worst still, since the matter involved the PAP Protocol which was ratified by
the Member States of the AU, the PRC should have been consulted since they are
the representatives of the Member States in Addis Ababa. That is why PRC
members are stationed at the seat of the AU in Addis Ababa on full time basis.
The point being made is that the AU cannot be run according to the whims and
caprices of the AUC Chairperson as it is inconsistent with the vision of the
founders of the Union.
There is also a disturbing gender
angle in this matter. When Chief Fortune
Charumbira was going on vacation on 21 August 2023, he appointed a female
member of the Bureau who is the Third Vice President, Hon. Lucia Passos as the Acting President and established a roster
for the other Vice Presidents. But before Hon.
Lucia Passos (Mrs) could arrange to travel to the PAP precincts, the Second
Vice President, Hon. Ashebir Gayo
showed up on August 23 without any credentials and declared himself Acting
President. He then blocked the duly appointed Acting President on rotation, Hon. Lucia from entering PAP precincts.
Recall also that the First Vice President Hon.
Prof. Massouda Mohamed Laghdaf (Mrs.)
from Mauritania had her swearing in set aside to make room for Hon. Dr. Gayo's emergence as Acting President.
Interestingly, the Clerk of the Parliament, Ms. Lindiwe Khumalo who was supposed to be in charge of the
administration of the affairs of the Parliament as a result of an inquorate
Bureau, was suspended by Dr. Gayo and
blocked from entering PAP. That makes three women that have become victims of Dr. Gayo’s apparent bullying of the
female gender which makes one wonder what is going on. Are there no persons to
speak up for these women? But how someone could without any credentials, show
up at the precincts of PAP and declare himself the Acting President is a story
that needs to be investigated. Dr. Gayo declared
himself Acting President on 23 August 2023 whereas the AUC Chairperson’s letter
suspending the Rules of Procedure was dated 5 October 2023. Can the AUC
Chairpersons letter have retroactive effect and how could it have affected the
seat of the First Vice President who resumed her office on 01 June 2023?
I
therefore posit that before the AUC Chairperson can pontificate before the PRC
about “A political and technical adaptation of the texts must be carried out,
without delay, in accordance with the relevant decisions of our competent
authorities” he should first of all, admit that he
was ill-advised about issuing the 5 October 2023 letter and withdraw that
letter. If there are indeed, any parts of the amended Rules that are
inconsistent with the provisions of the PAP Protocol, that determination ought
to be made by the Assembly or the Executive Council as delegated in line with
Article 20 of the PAP Protocol. But the decision should definitely not be made
by the AUC Chairperson. The Parliament can thereafter, through its internal
institutional mechanisms, make amendments.
We
need to be informed of the mischief which the AUC Chairperson intended to cure
when on 5 October 2023, he suspended the amendments to the Rules of Procedure.
In retrospect, has he not ended up creating greater problems for PAP than the
one he intended to solve and can he cite the specific provisions of the
Constitutive Act or PAP Protocol that gave him the powers to suspend PAP’s
amended Rules of Procedure? The general claim of taking the action as the
custodian of legal instruments is misplaced since the neither the PAP Protocol
nor the Constitutive Act required PAP to deposit her Rules of Procedure with
the Chairperson of the AUC. We are all aware that the Rules of Procedure of any
parliament including PAP is an internal affair of the parliament.
The
PRC also needs to investigate whether the decision to suspend the Amended Rules
of Procedure was made on the basis of a doctored version of the rules which is
different from what was actually adopted by the plenary. In this regard, the
Office of the Legal Counsel should be invited to provide the PRC with the
documents that was used in its evaluation.
Given
the clear and unambiguous provisions of Articles 5 and 17(2) of the
Constitutive Act and Articles 11(8), 12.1, 12.5, 12.6, 12.7 and 20 of the PAP
Protocol, it is obvious that the AUC Chairperson being the head of another
independent organ of the AU, has by this action, constituted his office into a
meddlesome interloper in the administration of the affairs of the Pan-African
Parliament.
Conclusion
Ensuring
an impartial resolution of a crisis within an organ of the African Union
involves adherence to established principles, transparent processes, and the
utilization of diplomatic mechanisms. In my humble opinion, the AUC Chairperson
did not follow established procedure set out in Article 20 of the PAP Protocol.
Even if it was necessary to constitute a panel to address the PAP issue, the
use of AUC staffers who are under his supervision and control creates conflict
of interest and so, leaves much to be desired. The African Union (AU), no doubt
has various structures and mechanisms in place to address crises and conflicts,
one of which is The AU Panel of the Wise,
a consultative body that provides guidance on conflict prevention, management,
and resolution. Engaging the Panel of the Wise to benefit from their experience
and diplomatic skills in navigating crises could have enhanced the credibility
of the process.
But
when the administrative head of the AU takes actions that undermine the
credibility of the Union, 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 other organs and the
public as has been noticed in this matter.
The
PRC should use this opportunity to recommend clear policy guidelines that
should prevent interference in the affairs of any organs of the AU by ambitious
AUC Chairpersons since we are expecting a new Chairperson to take over next
year.
And in furtherance of the 10th
preamble to the Constitutive Act, all necessary measures should be taken to
strengthen the Pan-African Parliament and provide the institution with the
necessary powers and resources to enable them discharge their respective
mandates effectively. To this end, the
amendments to the Rules of Procedure adopted by the Parliament on 04 November
2022 should be restored as the first step to bring the Parliament back to full
functionality pursuant to Article 11(8) and 12.1 of the PAP Protocol which gave
the Parliament the power to adopt or amend her Rules of Procedure. Recall also
that Article 17(2) of the Constitutive Act states that composition, powers,
functions and organization of the Pan-African Parliament are contained in the
PAP Protocol. Any recommendation by the AUC that is not based on identified provisions
of the Constitutive Act and PAP Protocol should be rejected as the judicial
powers of the Union are not vested with the AUC Chairperson. His views and
opinions cannot override the PAP Protocol or equate to two-thirds vote of the
Assembly or the Executive Council.
The functions of the Chairperson of the African Union Commission are
specified in Article 8 of the Statute of the Commission and do not include the
supervision of the activities of the Pan-African Parliament. What the AUC Chairperson
could reasonably have done upon the receipt of alleged complaint by some
members of PAP was to investigate whether the internal conflict resolution
mechanisms established by the Rules of Procedure had been exhausted by the
complainants before seeking external intervention. Thereafter, as per Article
8.1(w) of the Statute, the AUC should have reported the matter to the Executive Council, through the PRC. It is only after
due diligence and hearing from the leadership of the PAP that a preliminary determination
to suspend the amended rules would have been made. But it appeared that some
officials at the AUC were conflicted and wanted to impose a leadership on the
PAP.
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