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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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