Why the OLC’s Reversal on Article 12.3 May Undermine the AU’s Institutional Reputation - AFRICAN PARLIAMENTARY NEWS

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Friday, January 17, 2025

Why the OLC’s Reversal on Article 12.3 May Undermine the AU’s Institutional Reputation

By Olu Ibekwe

Background and Context

The Constitutive Act of the African Union (AU) sets out the codified framework under which the Union conducts itself. Article 3 lists the foundational objectives of the Union, which include promoting democratic principles and institutions, popular participation, and good governance. Article 4 sets forth the principles on the basis of which the Union shall function, including respect for democratic principles, human rights, the rule of law, and good governance. These provisions establish not only the Union’s core values but also the baseline for how its organs—such as the Pan-African Parliament (PAP)—are expected to operate.

In this context, Article 17 of the Constitutive Act, which established the PAP, provides that the composition, powers, function, and organization of the Parliament shall be defined in a protocol specifically related thereto. Further, Article 26 states that the Court shall be seized with matters of interpretation arising from the application or implementation of this Act, but until such a Court is established, interpretive issues should be submitted to the Assembly of the Union, which decides by a two-thirds majority. Meanwhile, Article 2.1 of the PAP Protocol clarifies that “Member States hereby establish a Pan-African Parliament the composition, functions, powers and organization of which shall be governed by the present Protocol.”

Against this legal backdrop, the Office of the Legal Counsel (OLC) plays a pivotal role in interpreting the Union’s foundational texts to ensure consistent adherence to principles enshrined in the Constitutive Act. However, the OLC’s recent reversal of its interpretation of Article 12.3 of the PAP Protocol may spark questions about the AU’s commitment to these values. By potentially contravening both the spirit and the letter of the Constitutive Act and earlier Executive Council directives, the OLC’s abrupt shift raises concerns about the Union’s institutional stability and credibility.

Letter from the AUC and the Suspension of PAP’s Rules of Procedure

On 5 October 2023, the Chairperson of the African Union Commission (AUC) issued a letter (reference number CCP/O/676/10.23) concerning the suspension of the Rules of Procedure of the Pan-African Parliament (PAP). This letter noted that it was the complaints from some members of the PAP—and the responses received—that “motivated the request for a legal opinion, obtained today, 4 October 2023.” It further stated that the opinion “reveals clear incompatibilities of the various provisions of the Revised Rules of Procedure with the Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament.”

The legal opinion in question, numbered BC/OLC/23.18/13795.23 of 04 October 2023, thus became the basis for the decision to suspend the PAP’s Revised Rules of Procedure. This move was subsequently upheld by Executive Council Decision EX.CL/Dec.1242(XLIV) (February 2024), which directed the PAP Plenary to reconsider the amended rules, focusing on the inconsistencies highlighted by the OLC.

It is therefore clear that the OLC’s opinion has been acted upon at the highest levels of the Union’s governance structure. Yet, questions remain about how the OLC’s position on core issues—particularly regarding Article 12.3 of the PAP Protocol—shifted so abruptly, given the AU’s broader commitments to good governance, legal certainty, and institutional consistency.

The Importance of Consistency in Legal Interpretations

The African Union has consistently emphasized its commitment to the principles of good governance, the rule of law, and adherence to established directives. These commitments are underscored by Executive Council decisions that affirm the importance of consistency, particularly concerning the principle of regional rotation in the election of the Pan-African Parliament (PAP) Bureau. For instance, Decision EX.CL/Dec.979(XXXI) (2017) and subsequent decisions, including EX.CL/Dec.1128(XXXIX) (October 2021) and EX.CL/Dec.1242(XLIV) (February 2024), explicitly direct PAP to ensure that the geographical rotation principle is adhered to in its elections and operations.

However, the Office of the Legal Counsel’s (OLC) recent reversal of its interpretation of Article 12.3 of the PAP Protocol has raised serious concerns. This abrupt change not only contradicts earlier Executive Council directives but also risks undermining the AU’s institutional reputation. Such reversals, particularly when they depart from previously established interpretations that have guided AU policy organs, can erode confidence in the stability and reliability of the Union’s governance framework.

The decisions of the Executive Council emphasize the need for transparent, predictable processes aligned with AU values and protocols. For instance, the 2024 directive reiterates the importance of regional rotation and stresses accountability for leadership decisions that deviate from established rules. Against this backdrop, the OLC’s reversal of its interpretation of Article 12.3 of the PAP Protocol signals a departure from this approach, risking the perception of inconsistency and jeopardizing the credibility of the African Union on both continental and global stages.

1. Perceived Inconsistency and Lack of Predictability

One of the hallmarks of any credible international or intergovernmental institution is consistency in its legal and policy stances. Sudden shifts or reversals in interpretations of key legal instruments can signal to Member States, stakeholders, and observers that the institution’s positions are subject to unexpected change. This lack of predictability undermines confidence, especially when the Executive Council or Commission has already relied on the original legal opinion to make important decisions—such as suspending the amendments to the Rules of Procedure of the PAP adopted on 04 November 2022.

Essential Message: Once the Executive Council or other policy organs have taken action based on the OLC’s opinion, a reversal without a well-justified and transparent rationale shows inconsistency. This can cast doubt on future commitments and policies, leading stakeholders to question whether today’s official position might be tomorrow’s discarded footnote.

2. Undermining Decision-Making Processes

The OLC’s legal analysis is instrumental in guiding AU policy organs—such as the Assembly, the Executive Council, and the Pan-African Parliament itself. These organs depend on sound legal advice to enact decisions that reflect the AU’s overarching vision and mandate.

When the OLC reverses its position without a formal mandate or clear reasoning:

  1. Erodes Confidence: The abrupt shift can cause Member States to doubt the stability of the AU’s internal governance framework.
  2. Violates Legal Certainty: Consistent application of rules is crucial for institutional stakeholders, from Member States to parliamentarians. A sudden reversal undermines the principle of legal certainty, leaving actors unsure of the binding force of current or future legal interpretations.

Essential Message: To maintain a robust governance mechanism, the AU needs an OLC that offers stable, coherent, and transparent legal guidance. Inconsistent advice or procedures challenge the very foundation of the Union’s decision-making processes.

3. The Risk of a “Policy Somersault”

A “policy somersault” is often used to describe a sharp, unexpected U-turn in policy direction or legal interpretation. In the case of the OLC’s shifting stance on Article 12.3:

  • Perception of Indecision: Stakeholders may view the AU as lacking procedural integrity, particularly if these reversals occur outside established institutional channels.
  • Damage to Credibility: The AU’s credibility and authority hinge on the consistency of its actions. Abrupt reversals can diminish the trust invested by Member States and international partners—particularly salient now that the AU is a member of the G-20.

Essential Message: Avoiding policy somersaults is critical for sustaining institutional legitimacy. Reversals without formal processes or compelling justifications threaten the AU’s standing on the global stage, not just within the continent.

4. Impact on Institutional Legitimacy

The African Union’s recent entry into the G-20 highlights its growing influence in global affairs. However, this international visibility comes with increased scrutiny:

  • Questioning Directives: If the AU demonstrates inconsistency, Member States and global partners could doubt the legitimacy and enforceability of the AU’s directives.
  • Risk of Internal Fragmentation: Contradictory interpretations around a foundational Protocol article can sow confusion and discord among PAP representatives. This creates potential divides within the institution, hindering unified action on continental issues.

Essential Message: Institutional legitimacy is built over time but can be quickly eroded by contradictory legal guidance. Clear, consistent interpretations of core protocols are essential for maintaining the AU’s integrity and collective decision-making capacity.

5. Importance of Clear Procedural Frameworks

To protect the AU from reputational damage caused by abrupt or unexplained reversals, the institution must strictly adhere to well-defined procedural rules. Two key principles are paramount:

  1. Functus Officio: This legal principle dictates that once a body has finalized a decision or issued a conclusive opinion that has been acted upon by a higher authority, it cannot unilaterally reopen or reverse that decision unless explicitly directed by a competent organ, such as the Assembly.
  2. Proper Dispute Resolution Channels: As outlined in the PAP Protocol, interpretive disputes must be resolved through the jurisdiction of the Assembly or, once operational, the Court of Justice of the African Union. Utilizing these established bodies to clarify disagreements ensures consistency and avoids ad hoc policy shifts that could undermine institutional credibility.

Essential Message: Observing functus officio and channeling disputes through official organs ensures transparency and consistency. This not only preserves the AU’s credibility but also shields it from accusations of policy flip-flops.

Conclusion

Reversals of legal interpretations—especially on matters as critical as Article 12.3 of the PAP Protocol—can have far-reaching implications for the African Union’s reputation, its internal harmony, and its capacity to navigate global platforms like the G-20. Policy coherence and institutional credibility are cornerstones of effective governance. Therefore, consistent adherence to established procedures, transparent engagement with policy organs, and a commitment to legal certainty are essential safeguards.

As the AU continues to expand its influence, stakeholders will carefully monitor how legal interpretations evolve. A stable, predictable approach is vital to maintaining trust and ensuring that the African Union remains a beacon of collective leadership in Africa—and on the world stage.

 


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Disclaimer: Comment expressed do not reflect the opinion of African Parliamentary News