Ensuring Protocol Adherence and Policy Consistency in the Pan-African Parliament: A Two-Part Analysis of Article 12.3 and the OLC Opinion

PART I: Implications of Article 12.3 of the PAP Protocol on the Tenure of the President and Vice Presidents

1. Background and Context

On November 4, 2022, the Pan-African Parliament (PAP) adopted amendments to its Rules of Procedure. However, on August 21, 2023, a complaint was filed by PAP members, alleging conflicts between the amended Rules and Articles 5 and 12 of the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (“PAP Protocol”). These allegations centered on discrepancies concerning the tenure and terms of office of the PAP President and Vice Presidents (the “Bureau”).

The Office of the Legal Counsel (OLC) of the African Union (AU) reviewed the amended Rules pursuant to directives under Assembly/AU/Dec.757(XXXIII) (February 2020) and EX.CL/Dec.1128(XXXIX) (October 2021). The OLC’s findings identified inconsistencies with the PAP Protocol, leading to the suspension of the amended Rules by the Chairperson of the African Union Commission (AUC) in October 2023.

2. AUC Chairperson’s Remarks on the PAP Crisis

In his remarks at the 47th Ordinary Session of the Permanent Representatives Committee (PRC) on January 15, 2024, the AUC Chairperson, H.E. Moussa Faki Mahamat, highlighted the urgency of resolving the recurring crisis within the PAP. He stressed the importance of making “clear and courageous decisions, in accordance with the relevant law and sound practices” and underscored the need for immediate and legally grounded measures to restore institutional stability. The Chairperson’s remarks reinforce the necessity of addressing issues undermining the PAP through adherence to established legal frameworks, rather than revisiting contentious provisions that caused the crisis.

3. The October 4, 2023, OLC Opinion and Its Conclusions

In its October 4, 2023, legal opinion (reference BC/OLC/23.18/13795.23), the OLC identified key issues with the amended Rules, particularly Rule 16(14), which imposed a fixed, non-renewable three-year term for Bureau members. The OLC’s conclusions included:

v  Article 12.3 links the tenure of PAP Bureau members to their membership in their respective national legislatures.

v  A fixed three-year term violates this linkage and contravenes the Protocol.

v  Procedural rules are intended to implement the Protocol, not amend it.

v  Any deviation from the Protocol, such as introducing fixed terms, requires a formal amendment to the Protocol, not unilateral action through internal Rules.

v  Departing from the Protocol’s linkage between Bureau tenure and national parliamentary terms introduces ambiguity, risking further disputes over legality and compliance.

4. Subsequent Reversal and Issues of “Approbation and Reprobation”

Despite its initial position, a subsequent OLC technical team reportedly revised its interpretation, suggesting that a three-year term does not violate the Protocol. This reversal was documented in a report titled “Report on the Review of the Suspended Rules of Procedure of the Pan-African Parliament.” However, this report lacked a reference number, signatures, and the names of review team members, raising serious procedural and credibility concerns.

v  Lack of Procedural Credibility: The absence of formal documentation undermines the report’s authenticity and raises questions about its status as an official legal opinion.

v  No Evidence of Formal Revised Opinion: There is no documented submission to the Executive Council reflecting this altered stance.

v  Contradiction of Established Principles: The reversal undermines policy consistency, as the OLC affirms its original opinion to suspend the Rules while simultaneously repudiating its substance.

v  Functus Officio: Once the Executive Council acted on the OLC’s original opinion, the OLC’s mandate on the matter ended unless directed otherwise by the Executive Council or Assembly.

5. Limitations of the OLC in Reversing Legal Opinions

The OLC cannot unilaterally reverse its earlier opinion on Article 12.3, given the implications for the Rules of Procedure and the PAP’s functioning. Such a reversal requires recourse to the policy organs of the AU as stipulated in Article 20 of the PAP Protocol.

v  Article 20 of the PAP Protocol: Matters of Protocol interpretation fall under the jurisdiction of the Court of Justice or, in its absence, the Assembly, which decides by a two-thirds majority.

v  Supremacy of the Assembly: The Assembly, as the AU’s supreme decision-making body, must resolve disputes over Protocol interpretation.

v  Procedural Legitimacy: Reversing the OLC’s original opinion without Assembly endorsement undermines procedural legitimacy and institutional trust.

v  Advisory Role of the OLC: The OLC’s role is to provide legal guidance, not to unilaterally reinterpret foundational documents after formal decisions have been made.

6. Conclusion

Article 12.3 of the PAP Protocol mandates that the President and Vice Presidents of the PAP retain their Bureau positions only as long as they are members of their national legislatures. Any departure from this principle, such as imposing a fixed three-year term, requires a formal amendment to the Protocol. The OLC’s original opinion, which led to the suspension of the amended Rules, remains the authoritative reference point. A unilateral reversal of this stance, absent recourse to the Assembly or Executive Council, raises serious legal and policy concerns.

In light of these considerations, the AU’s policy organs should reject any recommendation to reinstate fixed three-year tenure for the Bureau. Stability and institutional coherence can only be achieved by adhering to the Protocol and resolving the crisis through legally grounded and transparent measures, as emphasized by the AUC Chairperson.