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.
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.
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