Understanding the Removal of Nullified Provisions from the Pan-African Parliament's Rules Without Voting

By OLU IBEKWE

During the recent Fourth Ordinary Session of the Pan-African Parliament (PAP), the Chairperson of the Permanent Committee on Rules, Privileges, and Discipline, Hon. Steve Mikaya, presented a report on aligning the suspended rules with the PAP Protocol. This report which served as a formal notification to the Parliament is instrumental in advancing the African Union's principles of unity, accountability, and good governance. However, some have questioned whether the Parliament was not required to vote to remove provisions from the PAP Rules of Procedure that have already been deemed incompatible with the PAP Protocol and suspended by the Executive Council. A closer examination reveals that the Parliament lacks the power to vote on an issue concerning violation of the Protocol especially where the Executive Council has made a pronouncement. The removal of these nullified provisions is an administrative task, not a legislative action requiring extensive debate or consensus and I will explain why.

1.       The Executive Council’s Directive and Suspension of Provisions

In February 2024, the Executive Council, through Decision EX.CL/DEC.1242(XLIV), acted decisively on recommendations from the Office of Legal Counsel (OLC). Specific provisions within the PAP Rules of Procedure were identified as violating the Protocol and were subsequently suspended. This suspension rendered the provisions legally ineffective, effectively nullifying them within the Rules. To drive home the point, the Executive Council stated that “Any decision made based on the suspended revised Rules of Procedure of the PAP dated 4 November 2022, should be considered null and void.” It was also as a result of the nullification of certain definitions in Rule 1, identified by the OLC as violating the Protocol that elections were mandated by the Executive Council and held on 25 March, 2024. These definitions included “ceases to be a member”, “returning member” and “vacancy”.

The Executive Council's directive is binding and leaves no room for ambiguity. It required the PAP to align its Rules with the Protocol by removing inconsistencies identified by the OLC. Since these provisions have already been deemed incompatible and suspended, their removal is a logical administrative step, not a policy debate requiring a vote.

2.       Legal Nullification of the Provisions

Legally, provisions that contravene a superior legal framework like the PAP Protocol are automatically null and void. They lack enforceable authority and are considered as though they never existed within the governing framework. The OLC's opinion and the Executive Council's directive confirm this position.

Consequently, these provisions are no longer part of the active Rules of Procedure. Their formal removal is merely a procedural update to reflect their nullification, not an act of legislation. This legal context eliminates the need for a two-thirds vote, which is traditionally reserved for substantive amendments to valid and enforceable rules.

3. Administrative Action, Not Legislative Amendment

The removal of nullified provisions is an administrative function rather than a legislative amendment. Legislative amendments involve active, enforceable provisions that require deliberation and agreement to change. In contrast, administrative actions ensure that the legal and procedural framework accurately reflects decisions already made by a higher authority—in this case, the Executive Council.

The PAP's Rules of Procedure stipulate that amendments typically require a two-thirds majority to ensure stability and consensus. However, this requirement applies to valid provisions. Nullified provisions, having lost their legal force, do not warrant such a threshold because their removal does not alter the substantive framework but aligns it with existing legal realities.

4. Obligation to Revise and Align

The Executive Council explicitly directed the PAP to review and revise its Rules of Procedure in accordance with the OLC’s findings. This directive obligates the PAP to comply without deviation or delay. The PAP's role here is to implement the directive by ensuring the Rules accurately reflect the nullification of invalid provisions.

The Permanent Committee on Rules, Privileges, and Discipline has already acknowledged the binding nature of the Executive Council's decision and the necessity of aligning the Rules with the Protocol. Removing nullified provisions is a compliance measure, not a legislative initiative. It fulfills the mandate of alignment rather than introducing new rules or altering existing ones.

Conclusion: A Procedural Update, Not a Vote-Driven Decision

The removal of nullified provisions from the PAP Rules of Procedure does not require a two-thirds vote because it is not a legislative amendment in the traditional sense. It is an administrative update mandated by the Executive Council's directive, supported by the OLC's legal opinion, and necessitated by the supremacy of the PAP Protocol. The provisions in question have already been rendered ineffective and invalid; their formal removal merely ensures the Rules reflect this reality.

As the PAP continues its efforts to align its framework with the Protocol, it is essential to focus on efficiency, compliance, and adherence to the directives of the African Union's policy organs. Requiring a supermajority for this administrative process would not only be redundant but could also delay necessary reforms aimed at strengthening the governance and credibility of the Pan-African Parliament.