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:
- Erodes Confidence: The abrupt
shift can cause Member States to doubt the stability of the AU’s internal
governance framework.
- 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:
- 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.
- 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