Clarifying the Pan-African Parliament’s Authority and the Role of the Office of the Legal Counsel in Implementing Executive Council Decision EX.CL/Dec.1242(XLIV) - AFRICAN PARLIAMENTARY NEWS

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Monday, January 27, 2025

Clarifying the Pan-African Parliament’s Authority and the Role of the Office of the Legal Counsel in Implementing Executive Council Decision EX.CL/Dec.1242(XLIV)

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:

    1. 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.
    2. The term “reiterates” indicates that paragraph 6 does not introduce new binding directives but serves to recall earlier decisions and emphasize their continued relevance.
    3. 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:

    1. 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.
    2. 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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