The Need for Policy Coherence and Consistency in the Implementation of Executive Council Decisions on the Pan-African Parliament

Opinion by OLU IBEKWE

The cornerstone of institutional stability and credibility in any organization lies in the ability to maintain policy coherence and consistency in the conduct of its affairs. A long record of stability and credibility is necessary for the sustenance of good institutional reputation.

For example, inconsistencies in the formulation and implementation of Executive Council decisions on the Pan-African Parliament (PAP) can indeed affect the institutional image and reputation of the African Union (AU), especially given their recent admission into the G-20.

Undoubtedly, inconsistencies in decision-making and implementation can create an image of ineffectiveness and lack of cohesion within the AU. If Executive Council decisions are frequently revised without clear justification, it can signal organizational instability. This can undermine confidence among Member States of the Union and external partners, including those in the G-20 regarding the AU's ability to govern its institutions effectively.

The Union’s credibility and authority is also being undermined if its decisions are perceived as inconsistent. This is because, effective governance requires not only well-formulated policies but also their consistent application. Inconsistencies can thus lead to questions about the Union's governance standards and its commitment to enforcing its own rules and regulations.

As a member of the G-20, the AU is now more visible on the global stage and is expected to uphold high standards of governance and integrity. Inconsistencies within its institutions and the way and manner with which it relates with an important organ as the PAP can reflect poorly on the Union’s overall image, affecting its diplomatic relations and bargaining power in international fora. Partner agencies, organizations and countries can as a result, become wary of engaging with an organization that appears to struggle with internal governance issues.

Member States' trust and confidence in the AU may also be eroded by inconsistencies in decision-making. If member states perceive that decisions affecting the PAP are not applied uniformly or fairly, it can lead to dissatisfaction and disengagement. This can weaken the unity and collective action necessary for the AU to function effectively as a continental body.

Commendably, the Executive Council has so far resisted pressures to arbitrarily depart from previous pronouncements and has insisted on adherence to the policies pronounced in such previous decisions irrespective of political pressure. Time has come for the Council to once more, reaffirm its precious decisions to ensure consistency in the formulation and implementation of decisions on the PAP.

For example, when PAP was engulfed in leadership crisis following disagreement over the application of the principle of rotation in the leadership of the Parliament, the Executive Council was insistent in calling upon the Pan-African Parliament, “to apply the African Union values, rules, and regulations in managing all activities of the organ, including rotation of the Bureau and presidency...”. See Executive Council Decision EX.CL/Dec.979(XXXI) adopted in June 2017; Decision  EX.CL/Dec.1018(XXXII) adopted in June 2018; Decision (EX.CL/1294XXXIX) adopted in October 2021 and Decision EX.CL/Dec.1148(XL) adopted in February 2022.

Sadly, the Office of the Chairperson of the African Union Commission (Commission) appears not to be interested in ensuring the implementation of leadership rotation at the PAP. For example, when the Executive Council in both 2017 and 2018, directed the PAP to implement the African Union values, rules and regulations in managing its affairs, the Commission made no appreciable effort to ensure compliance by the PAP. And when the crisis broke out on the floor of the Parliament on 01 June 2021 because of the insistence of the Southern and Northern Caucuses of the PAP that there would be no election without rotation, the Commission opted to shut down the PAP rather than enforce previous Executive Council decisions on rotational leadership.

After the October 2021 Executive Council decision which was subsequently affirmed in February 2022, the Commission still delayed implementation. Instead the Commission opted to protect the interest of a few members of PAP who were opposed to the Executive Council decision. They did this by embarking on “consultations” in an effort to delay and frustrate the implementation of the October 2021 Executive Council decision which merely reaffirmed previous decisions dating back to 2017. At the end of the so called “consultations” (which took place on 23 and 24 February 2022), the Commission wrote a report which in effect, sought to reverse the Executive Council decision on rotation and venue of the election session notwithstanding express provision of Rule 35 of the Rules of Procedure of the Executive Council and Article 3.2(c) of the Statute of the Commission of the African Union. Fortunately, the Bureau of the Assembly intervened and reaffirmed the Executive Council decision and it was this intervention that made it possible for the PAP Bureau election to be held on 29 June 2022. Such should not have been the case for an issue for which the Executive Council had consistently made pronouncements dating back to 2017.

Having failed to install “their preferred candidate” during the June 2022 PAP Bureau election, the Commission struck again this time by suspending the amendments to the Rules of the PAP duly adopted on 04 November 2022 in exercise of PAP’s authority in terms of Article 17.2 of the Constitutive Act of the African Union and Article 11.8 and 12.1 of the PAP Protocol. In October 2023, the Commission by executive fiat, declared vacancies in the offices of the President and First Vice President in clear violation of the established rules and regulations of the PAP. In a strange twist, vacancy was declared in the office of the First Vice President from Mauritania who was duly sworn in during May 2023 plenary session of the Parliament to pave way for the emergence of the Second Vice President as the Acting President. Worse still, the Commission did all these with retroactive effect, and in violation of relevant Legal instruments adopted and ratified by Member States of the African Union.

As expected, these recurring leadership crises and operational instability have impeded PAP’s effectiveness as a legislative body.  The Executive Council decision at the 44th Ordinary Session in February 2024 EX.CL/Dec.1242(XLIV) once again restored PAP to full functionality and highlighted the urgency of addressing those issues caused the crisis by directing the PAP Plenary to reconsider the suspended Rules of Procedure, taking into account the inconsistencies outlined in the Legal Opinion from the Office of the Legal Counsel.

Therefore, the strict implementation of EX.CL/Dec.1242(XLIV), particularly aligning the tenure of the President and Vice Presidents of PAP with Article 12.3 of the Protocol to the Treaty Establishing the African Economic Community relating to the Pan African Parliament (Protocol) is crucial for ending the recurring leadership crises and ensuring stability within the PAP.

It would be recalled that the Legal Opinion issued by the Office of the Legal Counsel (OLC) on the basis of which Decision EX.CL/Dec.1242(XLIV) was pronounced, identified several inconsistencies in the revised Rules of Procedure, particularly concerning the tenure of the President and Vice Presidents. According to Article 12.3 of the PAP Protocol, the terms of office for these positions should align with the tenure of the National Parliaments or other deliberative organs that elect or designate them. However, OLC noted that the suspended Rules of Procedure failed to align with this provision, leading to confusion and disputes over leadership terms.

Aligning the Rules of Procedure with Article 12.3 as envisaged by EX.CL/Dec.1242(XLIV) will create a clear and consistent framework for leadership tenures, while reducing the potential for conflicts and power struggles within the PAP. This alignment is essential for ensuring that the leadership structure of the PAP is stable and adheres to the established norms and regulations of the AU.

The OLC opinion dated 04 October 2023 with reference BC/OLC/23.18/13795.23: stated: “Per Article 5 (3) of the PAP Protocol, a PAP Member's term is coextensive with their service in their national legislative body. This principle extends in Article 12 (3) to membership of the Bureau. Thus, the PAP Protocol forms a clear nexus between the term of office at the national and Pan-African Parliament levels. However, Rule 16 (14) of the Amended Rules, which echoes Rule 16 (10) of the Old Rules, disrupts this established linkage by stipulating a fixed, non-renewable three-year term for Bureau membership which runs counter to the PAP Protocol's mandate to align Bureau membership with national legislative terms. The Amended Rules should have rectified this discrepancy to fulfill PAP's objective of eliminating inconsistencies between its rules and the Protocol”.

Unquestionably, the Executive Council decision directing “Reconsideration of the suspended Rules of Procedure, taking into account the inconsistencies outlined in the Legal Opinion” by reference, incorporated the OLC opinion referenced BC/OLC/23.18/13795.23 and remains binding until set aside by the Executive Council or the Assembly.

Therefore, the implication of the OLC opinion BC/OLC/23.18/13795.23 on the basis of which the Amended Rules of Procedure of the PAP was suspended is that Rule 16(14) of the Amended Rules, which echoes Rule 16(10) of the Old Rule both run counter to the PAP Protocol's mandate to align Bureau membership with national legislative terms. The Commission cannot under any condition, accept the nullification of Rule 16(14) of the Amended Rule while at the same time, seeking to implement Rule 16(10) of the Old Rule on the same subject matter. That would be contradictory and absurd.

The media and public perception of the Union will be significantly influenced by how consistently and transparently it manages its internal affairs. Negative media coverage of inconsistencies can tarnish the AU's image, portraying it as an organization plagued by internal conflict. This can diminish public support and stakeholder confidence in the AU's initiatives.

PAP on 4^th November 2022, amended its Rules of Procedure pursuant to Article 12.1 of the PAP Protocol. However, on 21 August 2023, the Chairperson of the African Union Commission (Commission) sent a letter to the PAP seeking a response to an alleged “complaint” filed by a few Members of Parliament alleging that the Rules of Procedure of the Parliament as adopted on 4^th November, 2022 by the Plenary violates Article 5 and Article 12 of the PAP Protocol. I am still searching for any of the AU Legal instruments ratified by Member States of the Union that gave the Commission the authority to play such a supervisory role over PAP.

Instead of referring the complaint to the policy organs of the Union in line with the provisions of the Statute of the Commission and Article 20 of the PAP Protocol, the Commission on 05 October 2023, issued a letter to the PAP advising that the amended Rules of Procedure as adopted by the Plenary on 4^th November 2022 has been suspended on the basis of a determination of incompatibility of the Rules with the provisions of Article 5 and Article 12 of the Protocol as articulated in the OLC opinion. This was even as Article 26 of the Constitutive Act, vested the judicial powers of the Union on the Assembly of Heads of State and Government in the absence of the Court.

The Executive Council’s February 2024 decision to uphold the decision of the Commission to suspend the PAP's Rules of Procedure and address inconsistencies and leadership issues therefore amounts to a disciplinary action against PAP aimed at ensuring compliance with broader AU Legal instruments.

It needs to be emphasized that the Executive Council directed that the Amended Rules of Procedure should be reconsidered by the PAP Plenary, taking into consideration the inconsistencies outlined in the Legal Opinion issued by the Office of the Legal Counsel. The Executive Council did not direct another round of review of PAP’s Rules of Procedure especially when the PAP Plenary has not taken any action on it, neither was the Commission, the OLC or the PAP Secretariat directed to embark on producing a fresh Rules of Procedure for PAP. Doing so will clearly contravene Article 11.8 and 12.1 of the PAP Protocol. Article 17.2 has prescribed the manner in which PAP should be run and Member States of the Union ratified a protocol to that effect (PAP Protocol). The Commission does not have the authority to override the provisions of the PAP Protocol.

One wonders if the Commission is setting PAP up for another round of crisis at a time that PAP has returned to full functionality with elected leadership just like the Commission did in August 2023. PAP should be allowed the latitude to operate as envisioned by the founders of the African Union in the establishment of the Parliament.

It will therefore be wrong and an affront on the Union’s credibility for the Commission to now turn around and seek to have the Executive Council approve a decision that reverts to the three year tenure of the members of the PAP Bureau which has been determined to be inconsistent with Article 12.3 of the PAP Protocol and for which the Amended Rules was in the first place, suspended. The Permanent Representatives Committee of the Union (PCR) which acts as the gate keeper of the Executive Council must not allow the Commission to approbate and reprobate on this very issue and in the process, cause serious damage to the institutional reputation and credibility of the African Union. As we know, the world is now a global village and the Union having been admitted as a member of the G-20, must jealously guard its image and reputation.

Conclusion

The strict implementation of the Executive Council decision directing the reconsideration of the suspended Rules of Procedure of the Pan-African Parliament to align the tenure of the President and Vice Presidents with Article 12.3 of the PAP Protocol is a necessary step towards ending the recurring leadership crises and ensuring stability within the PAP. By aligning the tenure of the President and Vice Presidents with Article 12.3 of the PAP Protocol, the PAP will benefit from enhanced stability, increased accountability, improved transparency, and legal clarity. These changes are essential for the PAP to fulfill its mandate effectively and contribute to the broader objectives of the African Union.

Observed inconsistencies in the formulation and implementation of Executive Council decisions on the Pan-African Parliament will significantly affect the institutional image and reputation of the African Union particularly ss the Union steps into a more prominent role on the global stage with its admission into the G-20. Therefore, maintaining consistent, transparent, and effective governance practices is more critical than ever. Addressing these inconsistencies will not only enhance the Union's credibility and authority but also ensure that it meets the expectations of its Member States and international partners.