By Olu Ibekwe
The February 2024
Executive Council Decision EX.CL/Dec.1242(XLIV) underscores
the ongoing reforms within the Pan-African Parliament (PAP) to align its
operations with the values, rules, and regulations of the African Union (AU).
Among the directives, paragraph 8(d) specifically instructs the PAP Plenary to
reconsider its suspended Rules of Procedure. This article examines the
implications of this directive, drawing important distinctions between the
roles and authority of the PAP and the Office of the Legal Counsel (OLC), while
also addressing the implications of Rule 34 of the Rules of Procedure of the
Executive Council.
The Executive Council’s
Directive to the PAP Plenary
Paragraph 8(d) of EX.CL/Dec.1242(XLIV) states:
“The suspended Rules of Procedure of the
Pan-African Parliament 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.”
This directive
highlights the primary responsibility of the PAP Plenary to
reassess its suspended Rules of Procedure. Importantly, the term “reconsider”
implies an evaluative and decision-making process where the PAP Plenary retains
its authority to deliberate and adopt its procedural framework. This aligns
with the PAP’s role as a legislative and deliberative body within the AU
structure, ensuring that its internal governance mechanisms reflect AU values
and principles.
The directive does not
require the PAP Plenary to simply adopt a pre-drafted set of rules submitted by
the OLC but instead to:
1.
Evaluate the
suspended Rules of Procedure in light of the identified inconsistencies.
2.
Deliberate
and decide on necessary
amendments or adjustments to address those inconsistencies.
3.
Ensure
compliance with AU values,
rules, and regulations while maintaining its operational independence.
This preserves the PAP’s
autonomy in determining the form and substance of its Rules of Procedure while
emphasizing accountability to the broader AU framework.
Categorizing Paragraph 6
of EX.CL/Dec.1242(XLIV) Under Rule 34, Rules of Procedure of the Executive
Council
Paragraph 6 of EX.CL/Dec.1242(XLIV) states:
“REITERATES its decision EX.CL/Dec.1174(XLI) on
the Report on the Implementation of Executive Council Decision
Ex.CL/Dec.1148(Xl), which instructed the Office of the Legal Counsel, in close
collaboration with the Secretariat of the PAP, to urgently review the Rules of
Procedure of the PAP to ensure alignment with African Union values, rules, and
regulations, as well as established practices of the Union, including the
principle of geographical rotation.”
Under Rule 34 of
the Rules of Procedure of the Executive Council, decisions are
categorized as "Regulations," "Directives," or
"Recommendations and Declarations."
1. Paragraph 6
as a Preamble:
- Paragraph 6 can reasonably be construed as a preamble
to the directives contained in paragraph 8. It reiterates prior decisions
and establishes the context and rationale for the specific directives
that follow.
- The term “reiterates” indicates that paragraph 6 does
not introduce new binding directives but serves to recall earlier
decisions and emphasize their continued relevance.
- As a preamble, paragraph 6 provides the foundation and
intent behind the detailed actions outlined in paragraph 8.
2. Paragraph 6
as a Directive to the OLC:
- Paragraph 6 references an earlier instruction for the
OLC, in collaboration with the PAP Secretariat, to review the Rules of
Procedure. The use of the word “review” is critical. It connotes an
evaluative role, not the authority to draft or impose new rules.
- This distinction confirms that the OLC’s
responsibility is consultative and supportive, providing legal opinions
and highlighting inconsistencies for the PAP Plenary’s consideration.
Paragraph 8 as a
Directive and Its Controlling Authority
Paragraph 8 of EX.CL/Dec.1242(XLIV) contains
binding directives, making it controlling under Rule 34 of the Rules of
Procedure of the Executive Council as a clear example of a
"Directive." Specifically:
a. Sub-paragraph 8(d) directs the PAP Plenary to
reconsider the suspended Rules of Procedure, addressing inconsistencies
identified in the OLC’s Legal Opinion. This instruction binds the PAP Plenary
to take action while leaving it with the discretion to determine the final
content of the Rules of Procedure.
b. Paragraph 8 establishes the procedural framework
for addressing the suspended Rules and reinforces the PAP’s authority as the
decision-making body.
In contrast, paragraph 6
serves as a preamble and does not carry the same binding force as the
directives in paragraph 8. Therefore, paragraph 8 is the controlling provision
in terms of Rule 34. Also Articles 11.8 and 12.1 of the PAP Protocol gives the
Parliament the power to adopt its Rules of Protocol as long as those rules are
in “alignment with African Union values, rules, and regulations, as well
as established practices of the Union, including the principle of geographical
rotation”.
The Role of the
Permanent Representatives Committee (PRC) in Reconciling Paragraphs 6 and 8
The Permanent
Representatives Committee (PRC), as tasked under its Rules of Procedure, plays
a vital role in overseeing the implementation of Executive Council decisions
and policies. In the context of EX.CL/Dec.1242(XLIV), the PRC is uniquely
positioned to address the interplay between paragraph 6, which provides
advisory context, and paragraph 8, which outlines binding directives.
To fulfill this role
effectively, the PRC can:
1.
Review
Implementation Progress:
Evaluate reports from the Office of the Legal Counsel (OLC) and the PAP Bureau/
Plenary to determine how paragraph 8 directives have been executed and whether
the OLC’s review under paragraph 6 is consistent with Executive Council
directives vis-à-vis the power of the PAP Plenary.
2.
Facilitate
Collaboration: Act as a mediator
between the PAP and the OLC to ensure the advisory role of the OLC does not
encroach into the PAP Plenary’s autonomy to draft her Rules of Procedure while
aligning with paragraph 8 directives.
3.
Draft
Recommendations: Provide the Executive
Council with recommendations to clarify ambiguities, such as the reintroduction
of provisions like Rule 16(14) of the PAP’s suspended Rules of
Procedure while ensuring alignment with AU principles.
4.
Monitor
Compliance: Oversee and ensure the
nullification of decisions based on suspended Rules, per paragraph 8(e), to
ensure adherence to AU standards and the Executive Council’s directives.
Conclusion
The distinctions between
paragraph 6 and paragraph 8 of EX.CL/Dec.1242(XLIV) reflect the
balance between providing contextual guidance and issuing binding directives.
Paragraph 6 serves as a preamble, emphasizing the importance of aligning the
PAP’s Rules of Procedure with AU values. Paragraph 8, on the other hand,
contains actionable directives, with sub-paragraph 8(d) tasking the PAP Plenary
to reconsider its Rules of Procedure and sub-paragraph 8(e) nullifying
decisions made under the suspended Rules.
While the OLC plays a
critical advisory role, the PAP Plenary remains the authoritative body
responsible for adopting its Rules of Procedure. This distinction underscores
the collaborative but distinct responsibilities of AU organs in ensuring
institutional accountability and compliance with AU principles.
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