Why the tenure for the members of the PAP Bureau Cannot be Three-Years - AFRICAN PARLIAMENTARY NEWS

Breaking

memfysadvert

memfysadvert
memfys hospital Enugu

Tuesday, January 21, 2025

Why the tenure for the members of the PAP Bureau Cannot be Three-Years

By Olu Ibekwe

The Pan-African Parliament (PAP) operates under a clear legal mandate derived from the Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament (“PAP Protocol”). At the core of this mandate is Article 12.3, which explicitly links the tenure of the PAP Bureau’s President and Vice Presidents to their membership in their respective national parliaments. Recently, a Draft Rules of Procedure proposed imposing a three-year, non-renewable term on Bureau members, a measure that conflicts with both the PAP Protocol and the Office of the Legal Counsel’s (OLC) binding opinion (BC/OLC/23.18/13795.23 dated October 4, 2023). This discussion explores why the OLC cannot supersede the Protocol’s stipulations on tenure and clarifies the implications of any attempt to do so.

Legal Constraints on the OLC’s Role

When the OLC determined in its 04 October 2023 opinion that Article 12.3 rules out a fixed three-year term, it effectively shaped the AU’s official legal stance on the matter. Any contrary OLC position would require a new directive or guidance from the relevant policy organs, including the Executive Council or the Assembly of the African Union.

Tenure of the members of the PAP Bureau is Determined by Article 12.3

1.     Provision of Article 12.3: Article 12.3 of the PAP Protocol sets forth a direct linkage between a Bureau member’s term and their service in their national legislature:

“The terms of office of the President and the Vice-Presidents shall run with the National Parliament or the deliberative organ which elects or designates them.”

This provision clearly requires that a Bureau member’s PAP tenure ends when their term in the national parliament (or equivalent body) concludes, leaving no room for a rigid, predetermined time limit.

2.     Conflict with a Fixed Three-Year Term: A three-year, non-renewable arrangement for Bureau members ignores the national-parliament-based mandate conferred upon them by Article 12.3. If the OLC were to insist on a three-year cap, irrespective of the status of a Bureau member’s seat in their home legislature, it would contradict the Protocol’s explicit provisions.

3.     Authority of Article 12.3: Within the hierarchy of AU legal instruments, the Protocol’s direct command supersedes any conflicting procedural rules. Unless the Protocol is formally amended, no rule of procedure—or subsequent legal opinion—may override or narrow the reach of Article 12.3.

Implications of Insisting on Three-Year Tenure

1.     Legal Inconsistency: If the OLC were to demand three-year tenure without first amending or withdrawing its October 4, 2023, opinion, it would invalidate its own prior reasoning. Such an action undermines legal certainty and coherence, exposing the AU to accusations of shifting interpretations that reduce the reliability of its legal framework.

2.     Policy Confusion: The PAP relies on clear, consistent directives. Attempting to impose a fixed term—despite the Protocol’s coextensive tenure requirement—creates confusion for PAP leadership and casts doubt on which norms should be followed. This undermines the PAP’s efforts to finalize its Rules of Procedure in line with Article 12.3.

3.     Institutional Trust: The credibility of AU governance partly rests on the reliability of the OLC’s advice. Contradictory legal stances from the same advisory body can erode trust among AU organs, member states, and the broader public, weakening the perceived legitimacy of the African Union’s decision-making processes.

What Should Be the Way Forward?

1.     Respecting Article 12.3: The current and future tenure of PAP Bureau members must be strictly determined by Article 12.3 of the PAP Protocol, meaning their terms end when their national parliamentary service ends (or if they are no longer designated by the relevant organ).

2.     Clarity from the OLC: Should the OLC believe that changes are necessary, it should propose a formal revision of its opinion to the Executive Council or the Assembly, detailing the legal basis for any modifications. Only after receiving approval can the OLC legitimately shift its stance on the fixed-term question.

3.     Maintaining Rotation and Legitimacy: In accordance with Article 12.3, a vacancy arises when a national parliament’s term expires, allowing the next region in the rotation to immediately assume the vacant seat. This arrangement reinforces the PAP’s democratic legitimacy—ensuring Bureau members consistently maintain the support of their home institutions—while leaving the underlying rotation system fully intact.

4.     Accelerating the Ratification of the Revised PAP Protocol: Given that the PAP Protocol ranks above any procedural rule or OLC opinion, stakeholders who believe a fixed Bureau tenure is preferable should focus on speeding up the ratification of the Revised PAP Protocol (Malabo Protocol), which addresses concerns related to Article 12.3. However, until the Revised Protocol enters into force, Article 12.3 remains binding and must be upheld.

Conclusion

The OLC cannot unilaterally impose a three-year term for PAP Bureau members or override Article 12.3 of the PAP Protocol. Any insistence on a fixed tenure—absent the necessary legal and policy procedures—would conflict with both the OLC’s October 4, 2023 opinion and the clear language of the current Protocol. Consequently, Article 12.3 under which Bureau members serve coextensively with their national legislative terms subsists. If the AU or PAP wishes to establish a fixed tenure, the proper avenue is to accelerate ratification of the Revised PAP Protocol (Malabo Protocol), which addresses concerns related to Article 12.3. Until that revised instrument takes effect, the existing Protocol remains binding, thereby upholding the legal integrity and institutional credibility of the Pan-African Parliament.

 

No comments:

Post a Comment

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