Why Reverting to Rule 16(14) Violates the Executive Council’s Directive on PAP’s Suspended Rules - AFRICAN PARLIAMENTARY NEWS

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Tuesday, February 4, 2025

Why Reverting to Rule 16(14) Violates the Executive Council’s Directive on PAP’s Suspended Rules

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Discover how reverting to Rule 16(14) from the PAP’s suspended Rules defies the Executive Council’s directive and undermines institutional governance.

In February 2024, the Executive Council issued Decision EX.CL/Dec.1242(XLIV) regarding the Pan-African Parliament’s (PAP) suspended Rules of Procedure. The Decision explicitly states in paragraph 8(e) that:

Any decision made based on the suspended revised Rules of Procedure of the PAP dated 4 November 2022, should be considered null and void.”

The directive was a direct response to concerns that certain revisions—particularly pertaining to leadership tenure—were inconsistent with the Pan-African Parliament (PAP) Protocol and broader AU legal frameworks.

Despite this clear instruction, the Office of the Legal Counsel (OLC) submitted a Draft Rules of Procedure for the Pan-African Parliament where it reverted to Rule 16(14) that deals with the tenure for the President and Vice Presidents of PAP thereby invoking provisions from the suspended Rules of Procedure.

Below, we explore why the OLC’s move to revert to a three-year tenure—based on Rule 16(14) of the suspended Rules—constitutes a direct violation of the Executive Council’s directive.

1. Background: The Suspended Rules of Procedure

In November 2022, the PAP introduced revisions to its Rules of Procedure aimed at clarifying institutional processes, including Rule 16(14) on leadership tenure. However, upon review, the Office of the Legal Counsel (OLC) in its opinion BC/OLC/23.18/13795.23 of 04 October 2023 found these Rules to be inconsistent with Article 12.3 of the Protocol and recommended their suspension. The specific provision at issue—Rule 16(14)—proposed a three-year leadership term that diverged from the Protocol’s intended interpretation and other validly adopted AU legal instruments. The Executive Council in EX.CL/Dec.1242(XLIV) upheld the suspension.

Given the observed inconsistencies, the Executive Council decreed that any reliance on the suspended Rules—whether partial or wholesale—would be null and void. This meant that no decisions, interpretations, or actions could validly proceed from those suspended Rules.

2. The Executive Council Directive

Under Decision EX.CL/Dec.1242(XLIV), the Executive Council explicitly stated:

“Any decision made based on the suspended revised Rules of Procedure of the PAP dated 4 November 2022, should be considered null and void.”

The instruction has two critical implications:

1.    Legal Invalidation: All decisions that derive from or rely on the nullified provisions of the suspended Rules have no legal effect.

2.    Prohibition of Reliance: Any institution or individual—particularly within the PAP—must refrain from referencing or implementing the suspended Rules in any capacity.

3. The OLC’s Reversal and Its Legal Consequences

3.1 The OLC’s Resuscitation of Rule 16(14) 

The OLC initially had an interpretation of Rule 16(14) which is consistent with Article 12.3 of the PAP Protocol and recognized the crucial need for geographical rotation and strict adherence to the Protocol’s terms. Recently, however, the OLC reversed its opinion and reverted to Rule 16(14) of the suspended Rules of Procedure.

3.2 Reliance on Suspended Rules of Procedure

By invoking Rule 16(14)—which itself is part of the suspended Rules—the OLC’s reversal effectively implements or endorses a provision that has no standing under the Executive Council’s decision. This action raises two critical red flags:

1.    Direct Violation of the Executive Council Directive: The OLC’s shift in perspective uses and relies on Rule 16(14) which the Executive Council has explicitly suspended.

2.    Invalid Legal Source: Since Rule 16(14) is contained in the disallowed Rules of Procedure, it cannot serve as a lawful basis for any official decision, policy, or interpretation within the PAP.

4. Why the OLC Action Violates the Executive Council Directive

1.    Contradiction of the “Null and Void” Clause:

The Executive Council’s decision leaves no room for ambiguity: all decisions, policies, or interpretations stemming from the suspended Rules are considered void. By adopting the three-year tenure from Rule 16(14), the OLC has taken a step that directly contradicts this instruction.

2.    Failure to Base Decisions on Valid Instruments:

The PAP Protocol is a ratified AU legal instrument that should guide the legislative and procedural frameworks of the PAP. If the OLC had simply reinterpreted Article 12.3 of the Protocol without resorting to the suspended Rules, its new stance might be open for discussion. However, because it is instead relying on the invalid suspended Rules, the action undermines the AU’s legal hierarchy and compliance standards.

3.    Undermining Institutional Clarity and Governance:

Allowing decisions predicated on suspended rules sets a troubling precedent for other AU organs. If one body can circumvent the Executive Council’s directive, it threatens the institutional coherence and respect for due process and the rule of law under Article 3(g) and Article 4(m) of the Constitutive Act that the AU endeavors to uphold.

5. In Summary:

1.    Executive Council’s Directive is Unambiguous:
The Council mandated that any reference to or reliance on the suspended 4 November 2022 Rules must be considered null and void.

2.    OLC’s Interpretation Originates from a Suspended Provision:
By using Rule 16(14)—a provision from the suspended Rules—the OLC has anchored its new position on invalid grounds.

3.    Clear Violation of Decision EX.CL/Dec.1242(XLIV):
The action contravenes the express language of the Council, thereby lacking legal effect and breaching AU directives.

6. Conclusion

The crux of the matter lies in the source of the OLC’s revised position on Article 12.3. Because the OLC explicitly invoked and re-introduced Rule 16(14) of the suspended Rules of Procedure, it has chosen a path that stands in direct conflict with the Executive Council’s clear mandate. As a result:

1.    The Three-Year Tenure Provision is Void: Any move to implement a three-year term based on the suspended Rules has no legal standing.

2.    Infringement of AU Authority: By ignoring the Executive Council’s directive, the OLC’s action potentially undermines the legitimacy of future PAP decisions and opens the door to institutional disputes.

In light of these considerations, the OLC’s shift in perspective regarding Article 12.3—grounded in Rule 16(14) of the suspended Rules—constitutes a violation of Decision EX.CL/Dec.1242(XLIV). Only by adhering strictly to the valid PAP Protocol and properly adopted AU legal instruments can the PAP maintain both its integrity and its alignment with broader AU principles of governance, legality, and regional equity.

 

#Pan-African Parliament #Suspended PAP Rules #Executive Council #Rule 16(14) #OLC (Office of the Legal Counsel) #AU Legal Instruments #EX.CL/Dec.1242(XLIV) #Leadership Tenure #Governance

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