PAP Election guidelines will be developed by the AU

Opinion by OLU IBEKWE

Following consultations with the relevant stakeholders by the Acting President of the Pan-African Parliament (PAP), Hon. Lucia Mendes Dos Passos, and subsequent announcement by the Clerk of the PAP, Ms. Lindiwe Khumalo that an extraordinary session of the Parliament to fill the vacancies in the Bureau of the Parliament would take place from 20^th to 27^th March, 2024 at the seat of the Parliament in Midrand, South Africa, mischief makers have raised frivolous arguments regarding the modalities that would be used for the conduct of the election.

It would be recalled that the 44th Ordinary Session of the Executive Council after consideration of the report of the Permanent Representatives Committee (PRC) on the Situation at the Pan-African Parliament (PAP) EX.CL/Dec.9(XLIV), directed that the “PAP Plenary session should be convened at the PAP headquarters in Midrand, South Africa, before the end of March 2024, to fill the vacancies in the PAP Bureau. The Commission should oversee the election process of Bureau members to ensure transparency and independence, following the guidelines developed by the Office of the Legal Counsel”.

The Executive Council decision put paid to an earlier hatched plan to hold the session on 28 February 2024 in Addis Ababa, Ethiopia under a self-serving code of conduct produced by the former Acting President, Hon. Ashebir Gayo.

Obviously, the language of the Executive Council decision should have left no one in doubt that the 25 March 2024 Bureau election would be held “following the guidelines developed by the Office of the Legal Counsel” (OLC). This is similar to what obtained during the last 29 June 2022 Bureau election that ushered in the current Bureau of the Parliament where the guidelines were also developed by the OLC. The unnecessary issues being raised now were not raised then. There is therefore no point unnecessarily heating up the polity by trying to blackmail the Clerk of Parliament since the modalities for the election would be developed by the OLC and not the Clerk.

Additionally, the Pan-African Parliament was established on 18 March 2004 and in the almost twenty (20) years of its existence, has held about six Bureau elections. The last election took place on 29 June 2022. Bureau elections were successfully held in 2004, 2009, 2012, 2015, 2018, and 2022. Of the above elections, the 2012, 2015, 2018 and 2022 elections were conducted using the provisions of the 2011 version of the Rules of Procedure of the Parliament. Moreover, the Parliament’s Record of Proceedings for those elections are available for clarification and guidance.

This is because, as we know, parliamentary institutions are guided by prior practices, norms and adopted procedures in the conduct of its affairs. Prior practices typically establish a firm foundation and precedence on how future actions are to be conducted. Any deviation would require the approval of the plenary following consideration by the Committee on Rules.

It therefore came as surprise when a member of the Southern Caucus wrote the Clerk demanding that nomination of candidates should take place seven (7) days before the session commences. The question that arises is whether the nomination of candidates for election by the regional caucuses has ever taken place before the commencement of the session?

The answer to this question requires a review of how Bureau Elections have been conducted in the twenty years of the Parliament’s existence and whether Regional Caucuses have ever meet 7 or 3 days before the opening session to nominate candidates for the election. The practice at the Pan African Parliament as indicated in the Record of Proceedings clearly shows that nomination of candidates for President and Vice Presidents in 2009, 2012, 2015, 2018 and 2022 were done after the opening session when the administration of oath or swearing in of new members had taken place. It is only after the opening session formalities that regional caucuses are asked to met to nominate candidates in terms of Rule 84.  

Rule 16.5 governs the “Election of the Members of the Bureau” and provides that “the election of the President and the Vice-Presidents shall be carried out at the first sitting of Parliament following its inauguration or at the sitting immediately following a vacancy”.  The interpretation of “Sitting” as contained in Part 1 (Preliminary), Rule 1 (Interpretation) of the Rules of Procedure of PAP defines “Sitting” as the period during which Parliament is sitting and includes committee meetings. In the instant case, the period 20 to 27 March 2024 constitutes the first “Sitting” of the PAP following the vacancy and in this case, the election has been scheduled to hold on 25 March 2024.

Rule 15.2 stipulates that “the Clerk shall call for submission of candidates at least seven (7) days before the election; this deadline may be reduced to three (3) days in the case of an emergency declared by the Plenary of the PAP”. The notice of session has already indicated an extraordinary session which would trigger three (3) day notice.

Instructively, Rule 15(3) provides that “The candidatures for election to the office of the President or Vice-Presidents shall be submitted to the Clerk on the nomination form prescribed in Appendix B not later than six hours before the time fixed for elections”. So although Rule 15(2) prescribes that the Clerk shall call for submission of candidates at least three days before the election, Rule 15(3) makes it clear that such nominations must be submitted at least six hours before the election. The session would begin on 20 March while the election would hold on 25 March. See also Rule 37 Sequence of proceedings and Order Paper.

Also, the Executive Council at its 44^th Session in February 2024, as they did in October 2021, reiterated their position that the swearing in of new members will be conducted prior to the commencement of any other business at the Parliament. This directive which is consistent with the modalities for the 2022 Bureau election by the OLC is clear and unambiguous.

It is also to be noted that Article 4 of the Constitutive Act of the African Union (AU) which is the Union’s supreme law, makes it clear that the Union shall function in accordance with the principles of sovereign equality of Member States of the Union. This principle which has been the guiding philosophy in all operational engagements and inter-relationships amongst the Member States of the Union is predicated on mutual respect and deference.

Additionally, Article 4 of the Protocol to the Treaty establishing the African Economic Community relating to the Pan African Parliament (PAP Protocol) provides for the composition of the Pan African Parliament and states that each “Member States shall be represented in the Pan-African Parliament by an equal number of Parliamentarians; (2) each Member State shall be represented in the Pan-African Parliament by five (5) members, at least one of whom must be a woman; and (3) the representation of each Member State must reflect the diversity of political opinions in each National Parliament or other deliberative organ.”

The only reason that a member state can be excluded from participating in any activity of the PAP under the Constitutive Act is in terms of Article 23 (failure to comply with the decisions and policies of the Union) and Article 30 (unconstitutional change of government). As aptly captured by an analyst, “a denial of democratic parliamentary privileges of participation in elections to a Parliamentarian duly designated by the Parliament of a Member State, is a denial of a fundamental right entrenched in the Constitutive Act of the African Union especially when that Member State’s status in the AU has not been compromised by either sanctions or other extenuating circumstances antithetical to full membership of the African Union.”

Therefore, the delegation of a Member State cannot legally be excluded from participating in PAP activities in view of the clear and unambiguous provision of Articles 4.2 that each member state shall unconditionally be represented by five (5) members unless such a member state is under sanctions under Article 23 or 30 of the Constitutive Act. See also Article 17(2) of the Constitutive Act.

Unquestionably, Article 4 of the Constitutive Act, Article 4 of the PAP Protocol as well as Rule 6 of the PAP Rules do not give any parliamentarian or Member State the right to contest the eligibility of another parliamentarian or Member State to participate in the activities of PAP. Once a Member State in exercise of her sovereign authority, sends a list of her designated members to PAP, that decision cannot be questioned or subjected to any other conditionalities.

The requirement of Rule 15(2) can be invoked when the session is formally convened. The regional caucuses are then asked to meet in terms of Rule 84 to nominate candidates for election. It will be also instructive to recall that during the May 2021 botched Bureau election, candidates were nominated by the regional caucuses for positions of President and Vice President. The Eastern Caucus had nominated Hon. Amb. Albino Aboug of South Sudan as its candidate for President/ Vice President. Following the suspension of parliamentary activities on 01 June 2021, the Executive Council met in October 2021 directed that the Bureau election be held observing rotation. And so, when the PAP convened for the June 2022 Bureau election, nominations were reopened after the swearing in of members, including Ethiopia’s delegation. This made it possible for the Eastern Region to replace Hon. Amb. Albino Aboug with Hon. Dr. Ashebir Gayo who was later elected Second Vice President.

Therefore, attempting to exclude parliamentarians from an otherwise eligible Member State from running for President is illegal, unprecedented and will undermine the fundamental principles of democracy, which emphasize the equal participation and representation of all eligible Member States in the electoral process. Democracy thrives on inclusivity, and restricting access to voting and candidacy contradicts this principle.