Setting the Record Straight: Why the Malabo Protocol Does Not Undermine National Sovereignty

By Olu Ibekwe

Since the adoption of the Malabo Protocol in June 2014, which seeks to grant the Pan-African Parliament (PAP) limited legislative powers, a lingering concern among some African Union (AU) member states has been the fear of losing national sovereignty. This apprehension has been a major reason why, more than a decade later, the protocol still awaits the required number of ratifications to come into force. Nigeria, among other countries, has yet to ratify the protocol, partly due to these sovereignty-related concerns.

Although many of these countries have not spoken about it publicly, concerns have been voiced about ceding sovereignty. For example, during a debate in Uganda’s parliament, the Ugandan Deputy Attorney-General explained that the delay in ratification was due to caution over “signing a protocol that empowers the PAP to make laws,” noting concern about the status of PAP laws versus national laws and urging careful consideration “before we cede our sovereignty”​. Such sentiments reflect a fear that PAP legislation could override or conflict with domestic law. It is reasonable to assume that other member states have similar reservations about empowering a continental parliament.

However, a closer examination of the protocol’s provisions, particularly Article 8.1(a) and (b), reveals that these fears are largely unfounded. Rather than eroding sovereignty, the Malabo Protocol establishes a cautious and balanced framework that both empowers the Pan-African Parliament and preserves the autonomy of member states.

Understanding Article 8.1: The Heart of the Matter

Article 8.1(a) of the Malabo Protocol states that the AU Assembly shall determine the subjects or areas on which the PAP may propose Model Laws. Article 8.1(b) further clarifies that the PAP may, on its own initiative, suggest subject areas for Model Laws, but only after obtaining the Assembly's approval. In essence, this creates a two-tiered control mechanism:

1.     The Assembly of Heads of State and Government — representing the sovereign interests of all member states — decides what legislative topics the PAP may engage with.

2.     Even when PAP proposes its own areas of interest, it must first secure approval from the Assembly before proceeding.

This dual filter ensures that the power to initiate and guide legislative action remains squarely in the hands of the member states themselves. PAP cannot act unilaterally; its legislative reach is firmly bounded by the will of the sovereign governments.

Model Laws: Non-Binding, Consultative Tools

Even within these tightly defined parameters, the PAP is only empowered to draft Model Laws — non-binding legislative templates intended to harmonize laws across the continent. These Model Laws do not have automatic force within any member state. For a Model Law to take effect nationally, it must go through each country’s domestic legislative process. National parliaments retain full discretion to adopt, reject, or amend these proposals.

This is a far cry from a supranational authority imposing its will. Instead, it is a cooperative mechanism designed to encourage legal convergence while fully respecting the principle of national sovereignty.

No Full-Time Parliament: Addressing Another Misconception

Another concern that has militated against the ratification of the protocol is the perception that the PAP will evolve into a full-time parliament issuing binding laws across the continent. However, Article 15.2 of the Malabo Protocol makes it clear that the PAP shall meet in ordinary session at least twice a year, and each session may last up to one month. This provision demonstrates that the PAP is not intended to function as a full-time legislative body. Its work remains periodic and session-based, reinforcing its supplementary role rather than transforming it into a permanent supranational legislature.

Sovereignty Preserved, Integration Enhanced

The structure of the Malabo Protocol exemplifies a deliberate effort to balance the desire for deeper African integration with the need to respect national autonomy. By positioning the AU Assembly as the ultimate gatekeeper of PAP’s legislative functions, the protocol assures member states that no legislative authority is being usurped.

Rather than a threat, the Malabo Protocol should be seen as a strategic innovation. It offers a way to streamline and strengthen regional legal frameworks, especially in areas such as trade, human rights, public health, and infrastructure development — where cross-border coordination is both necessary and beneficial. Yet, it does so without infringing on the rights of individual states to chart their own legal paths.

Conclusion: Time to Dispel the Myths

The sovereignty concerns surrounding the Malabo Protocol, while politically understandable, do not hold up under legal scrutiny. Article 8.1 makes it abundantly clear that the PAP will operate strictly within boundaries set by the member states. Its Model Laws are suggestions, not mandates. Article 15.2 further dispels the notion of a permanent, binding legislature by limiting PAP’s sessions to twice a year.

It is time for AU member states, especially influential ones like Nigeria, Egypt, Kenya, Ethiopia and South Africa, to revisit the protocol with fresh eyes and renewed clarity. Far from diminishing sovereignty, the Malabo Protocol provides a pragmatic path toward a more integrated, legally coherent, and responsive African Union. Empowering the PAP, within limits set by sovereign states themselves, is not a threat — it is a step forward.