Designated PAP members can contest the Bureau election

Opinion by OLU IBEKWE

There have been some misconceptions as to who is a member of the Pan-African Parliament or put differently, what constitutes membership of the Pan-African Parliament (PAP). Some parliamentarians have adopted their own self-serving definition and have gone to town with it without bothering to find out the legal definition of what constitutes membership of the continental parliament.

As the date for election to fill the vacant positions in the Bureau of the Pan-African Parliament (PAP) approaches, these parliamentarians have intensified moves to exclude newly designated members of the Parliament from presenting themselves for election into the vacant position of the President which has been zoned to the Southern Region. Regrettably, this undemocratic move has been embarked upon to aid a particular Southern Caucus candidate to secure nomination as a sole candidate.

The game plan of the group is to push for a meeting of the Southern Region Caucus to nominate candidates to be held on Monday 18 March 2024 before new members are sworn in on Wednesday 20 March. Such a move is not only fundamentally misplaced but is inconsistent with the provisions of the Constitutive Act of the African Union, the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (PAP Protocol) and the Rules of Procedure of the Parliament. It should therefore be considered dead on arrival.

It is important at this point, to take a look at what the legal instruments that established the Pan-African Parliament has to say about what constitutes its membership. The Constitutive Act of the African Union which is the supreme law of the Union, in Article 17.1 established the Pan-African Parliament to ensure the full participation of African peoples in the development and economic integration of the continent. So PAP was not intended to be an organ of the African Union (AU) where people go to flex their political or financial muscles, seek political revenge or vendetta.

Article 17(2) of the Constitutive Act states that the composition, functions, powers and organization of PAP shall be defined in the PAP Protocol. See also Article 2.1 of the PAP Protocol. This means that the composition or membership of the PAP must be guided by the provisions of the PAP Protocol and nothing more.

The PAP Protocol defines a Member of the Pan-African Parliament as “a representative elected or designated in accordance with Article 5 of this Protocol”. This definition was also imported into the Rules of Procedure which also defines “Member” as a person elected or designated by a National Parliament or other deliberative organ as a Member of Parliament under Article 5 of the Protocol.

Article 5.1 of the PAP Protocol referred to in the above definition states that “The Pan-African Parliamentarians shall be elected or designated by the respective National Parliaments or any other deliberative organs of the Member States, from among their members”. To attempt to add or remove anything from this provision of the PAP Protocol would amount to attempting to amend the Protocol without going through adoption by the Assembly and ratification by the majority of the Member States of the Union.

In order words, the PAP Protocol makes it clear that the designation by a Member State is all that is required to be considered and accorded the right and privileges of a member of PAP. The Protocol does not in any where, mention or require swearing in before membership rights and privileges are to be accorded. The administration of oath under the Rules of Procedure is subordinate or inferior to the provisions of the PAP Protocol and it is in that regard that Rule 37 mandates the swearing in of new members before any business of the House is conducted to avoid violating the PAP Protocol. No duly designated member can be excluded from participating in any business of the PAP which is why Rule 9.1 provides that “At the first sitting, after the election and before proceeding with any other matter, Pan-African Parliamentarians shall take an oath or make a solemn declaration, the text of which shall be set out as Appendix A to these Rules of Procedure.”

Therefore, those who have been scheming to exclude the duly designated members from Eswatini, Lesotho and Zimbabwe from standing for election as President of the Parliament should perish such thought as it will lead to the invalidation or nullification of the outcome of the election. Article 4.a of the Constitutive Act makes it clear that the Union shall function in accordance with the principle of sovereign equality of Member States. This guiding principle of sovereign equality of states is further manifested in Article 4 of the PAP Protocol which makes it mandatory that each Member State shall be represented at the Pan-African Parliament by five (5) members. No Member State has the right or authority to exclude another Member State from participating in any of the activities of PAP except in terms of Articles 23 and 30 of the Constitutive Act.

This implies that the moment the Clerk of Parliaments of Eswatini, Lesotho and Zimbabwe respectively or indeed any other Member State complies with Article 5 of the PAP Protocol by sending the list and the credentials of their designated members to the Clerk of the Pan-African Parliament, such designated members are automatically entitled to all the rights and privileges of membership of PAP and therefore, cannot lawfully be excluded from participating in any meeting convened for the purpose of nominating candidates for election.

Once the session is convened, the provisions of Rule 37 now kick in and new members must be sworn in before conducting any business of the House. In effect, while newly designated members must be allowed to participate in any other meeting and entitled to be nominated for vacant positions, the act of swearing in is administrative and procedural to be conducted once the session is convened. It is not a substantive requirement of the PAP Protocol. Swearing in cannot therefore be used as basis for denying a duly designated member under Article 5 of the PAP Protocol of the rights and privileges of membership.

It is surprising that this issue is coming up after twenty (20) years of the Parliament’s existence where Bureau elections were held in 2009, 2012, 2015, 2018 and 2022 without seeking to exclude any member or delegation from participation. To buttress my point, let me refresh our memory with what happened in February 2022 when the Chairperson of the African Union Commission (AUC) decided to embark on consultations with the regional caucuses before the June 2022 Bureau election. It is on record that some parliamentarians including those from Morocco and Ethiopia who as at February 2022, had not been sworn in as members of the PAP, not only attended but fully participated in those regional consultations. So why are they singing a different tune now?

Let it be clearly stated that International human rights standards emphasize the importance of ensuring universal suffrage and equal opportunities for all individuals to participate in any political process. This should be viewed within the context of Article 17 of the Constitutive Act which informs us that PAP was established to ensure the full participation of African peoples in the development and economic integration of the continent.