Reconciling the February 2026 Bureau Election Directive with the Supremacy of the PAP Protocol

By Olu Ibekwe

When the Executive Council closed its 46ᵗʰ Ordinary Session in Addis Ababa last February, one line in its decision on the Pan-African Parliament (PAP) leapt off the page: “DECIDES that the elections of the PAP Bureau be held in February 2026.” What had been a gentle “recommendation” hardened overnight into an outright directive—and many stakeholders felt the jolt.

Yet Article 12.3 of the PAP Protocol—the treaty that created the Parliament and thus a binding instrument of African Union law—could not be simpler: a Bureau member’s mandate “runs with” the life of that officer’s seat in the national legislature. The clause was written precisely to spare the institution mid-term turbulence: if a delegate loses or vacates a national seat, only that individual is replaced; colleagues whose home mandates persist simply carry on.

Against this backdrop, the Executive Council’s February 2026 date is far more than a scheduling note; it is a constitutional stress test for the AU’s rule-of-law architecture. Unless clarified, the directive pits political expediency against treaty obligation—an imbalance unlikely to survive judicial scrutiny.

Crucially, the same tenure logic appears almost verbatim in Article 5.3, which ties an ordinary PAP member’s continental service to the very same national mandate. The Office of the Legal Counsel (OLC) has never questioned Article 5.3; it readily accepts that a parliamentarian’s PAP tenure ends when the home mandate does. Why, then, the sudden unease over the identical principle in Article 12.3? By blessing one clause while doubting its twin, the OLC risks looking less like a guardian of doctrine and more like an overseer of double standards.

A collision now appears unavoidable. The Council’s directive envisions a single, collective election day, whereas the Protocol imposes staggered, individual expiry dates. In the AU’s hierarchy of norms, treaty obligations trump even the most well-intentioned Executive Council decision—a principle that will ultimately shape any judicial review.

The View from the Drafting Room

Records of the Permanent Representatives’ Committee (PRC) show that the diplomats who drafted the Council decision saw the collision coming. Minutes in the AU Archives report several ambassadors insisting that “the timing of PAP elections should be governed by law whilst adhering to the existing protocols and rules.” The same document commended PAP for completing the first phase of its Rules-of-Procedure amendments—work that cured every irregularity earlier flagged by the OLC—and, by implication, affirmed the legality of the Bureau election held on 25 March 2024.

That endorsement fit together with the Parliament’s own rulebook. Rule 9(2) stipulates that “in the case of re-election or re-designation, the Pan-African Parliamentarian shall begin a new term of office. He or she shall be sworn in again.” The OLC’s October 2023 opinion agreed, describing the oath as the universal marker of a fresh mandate. Against this backdrop, we must also note Article 12.4 of the Protocol, Rule 14, and Appendix D—all of which reinforce regional rotation—and the legal picture is unambiguous: once some members of the current Bureau renewed their oath on 25 March 2024, a new collective cycle began under treaty law.

Because the Executive Council’s February 2025 decision expressly validated that election, the intellectual footing for the OLC’s insistence on a June 2025 poll appears increasingly questionable—a position in search of a doctrinal anchor rather than one grounded in the Protocol it is meant to safeguard.

Why, then, did February 2026 appear in the decision at all? Two complementary political instincts help explain it. First, there is lingering anxiety over regional rotation. Paradoxically, it was the OLC—guardian of legal consistency across AU organs—that warned the Protocol’s open-ended, mandate-linked tenures might dilute the Union’s cherished rotation principle. From that vantage, a fixed election date functions as a safety valve, guaranteeing each region a regular shot at the presidency. Second, the Council continues to wrestle with the hangover of crisis. PAP lost nearly two years of normal activity between May 2021 and March 2024; some capitals see a definite election day as the quickest path to a fresh mandate and renewed legitimacy.

Neither impulse, however, alters the legal hierarchy: unless and until the Protocol is amended, the Executive Council may neither shorten nor prolong a Bureau member’s term of office.

Two Roads Ahead

Two credible routes now lie before the Union:

1. Quiet course-correction by the Executive Council

When the Council convenes in July 2025, it can attach a brief footnote to its February decision, clarifying that the 2026 reference was never meant to override Article 12(3) but only to signal the next plausible election window should a vacancy arise under Article 12(8). One carefully crafted sentence would align the Council’s political intent with the Protocol’s legal command—averting a needless courtroom drama.

2. Endorsement of the PRC Sub-Committee’s audit

The PRC Sub-Committee now reviewing PAP’s compliance may confirm that tenure is governed by Article 12(3), rotation by Article 12(4) (read with Article 12(2)), and vacancies by Article 12(8). The Executive Council could simply adopt those findings. Any balloting in February 2026 under Article 12(10) would then be confined to seats genuinely vacated within the meaning of Article 12(8); staggered terms would remain intact, demonstrating that treaty law—not ad-hoc directives—still steers leadership rotation.

In either scenario, vacancies—not arbitrary cut-offs—would trigger partial elections. Every region would still rotate into the presidency, albeit on a longer horizon anchored in legal certainty. Managing caucus impatience will require deft diplomacy, but that is a political task, not a legal one.

Inviting the Attorneys General of Member States into the conversation

Given the principle of sovereign equality enshrined in Article 4 of the Constitutive Act, the Union should consult its legal community—particularly the Attorneys-General of the Member States. Because PAP delegates derive their authority from national parliaments, the tenure rules in Article 12.3 depend on constitutional calendars that only domestic legal advisers fully grasp. A short, time-bound consultation—convened by the PRC Sub-Committee—could invite Attorneys-General to opine on two questions: how to apply “runs with the life of the national mandate” when terms and dissolution triggers vary, and how to protect regional rotation without infringing the individual guarantees built into the Protocol. Their collective guidance would arm the Executive Council with a defensible legal basis for any July footnote, furnish PAP with crisp parameters for interim elections, and give the African Court, if ever seized, a robust record of the electoral practices within Member State practice.

Yet the call for Attorneys General to step forward is not simply a procedural nicety; it is a remedial necessity. It was the OLC’s own overreach—first by urging the suspension of amended rules in 2023, then by quietly reversing course in 2024—that plunged PAP into this legal thicket. Two diametrically opposed opinions on the same clause, delivered in less than eighteen months, have left many stakeholders wondering whether the OLC’s guidance is anchored in settled doctrine or in shifting political winds. By inviting the Attorneys General—officials who answer directly to domestic constitutions rather than to inter-office dynamics—into the interpretive conversation, the Union can insulate future advice from precisely the kind of subjectivity that has already eroded confidence. Their collective, state-grounded reading of Article 12.3 would supply a stable benchmark against which any future OLC opinion must measure up, restore trust in the Union’s legal architecture, and ensure that one office’s oscillations never again hold an entire continental parliament hostage.

Conclusion: A Procedural Fix to a Constitutional Test

As noted earlier, the Executive Council’s February 2026 election mandate is more than a scheduling notice; it is a constitutional stress test for the AU’s rule-of-law architecture. Unless clarified, the decision risks pitting a political directive against a treaty obligation—precisely the clash that paralyzed PAP barely a year ago. The good news is that the remedy is procedural, not existential. A single clarifying sentence in July 2025 can realign Executive Council intent with Protocol law, buttress leadership stability, and allow Africa’s Parliament to return to the work its citizens expect: scrutinizing budgets, crafting model legislation, and amplifying the continent’s 1.4 billion voices. By acting now, the Union will demonstrate that, even amid political turbulence, the treaty hierarchy still holds—and that legal order, once restored, will not be casually upset.