Restoring Legal Order: Why the PRC Must Address the OLC’s Overreach

Guarding the Gate While Fixing the Fence

Opinion by Olu Ibekwe

Introduction: Two Tasks, One Chance

The Executive Council’s mandate to the Permanent Representatives Committee’s Sub-Committee on Rules, Standards, and Verification of Credentials and Procedures (the Sub-Committee) is unambiguous: to align the Pan-African Parliament’s (PAP) Rules of Procedure with the PAP Protocol and the Council’s most recent decisions. Yet beneath this seemingly straightforward task lies an institutional fault line—the conduct of the Office of the Legal Counsel (OLC), whose interventions between 2023 and 2025 not only suspended PAP’s Rules but also attempted to rewrite them.

To ignore this episode would be a serious oversight. The same legal misstep that once paralyzed PAP could recur unless it is formally documented, interrogated, and structurally prevented. As the Executive Council’s designated “pipeline” for actionable recommendations, the PRC Sub-Committee is uniquely positioned—and indeed obliged—to flag the OLC’s overreach, seek clarifications, and propose safeguards, all while staying within the boundaries of its mandate.

Minutes from the PRC’s preparatory meeting ahead of the February 2025 Executive Council session underscore this point. According to records from the African Union Archives, several ambassadors “emphasized that the timing of PAP elections should be governed by law whilst adhering to the existing protocols and rules.” In effect, these diplomats recognized and voiced concern over the legal collision between the OLC’s position and Article 12(3) of the PAP Protocol.

This essay contends that addressing the OLC’s overreach is not a diversion from the Sub-Committee’s mission—it is central to its core duty: delivering a clean, durable, and Protocol-compliant rulebook that safeguards PAP’s institutional legitimacy going forward.

Backstory: How Advice Became Edict

October 2023 — The First Opinion

In a legal opinion referenced BC/OLC/23.18/13795.23, the OLC determined that Rule 16(14) of the Parliament’s 2022 amended Rules—which imposed a fixed, non-renewable three-year term for Bureau members—conflicted with Article 12(3) of the PAP Protocol. The Protocol stipulates that Bureau members serve for as long as they retain their seats in their respective national parliaments. Acting on this conclusion, the OLC advised the Chairperson of the African Union Commission to suspend PAP’s Rulebook and to declare the offices of the President, First Vice President, and Fourth Vice President vacant. The Commission implemented the recommendation the following day—without endorsement from any AU policy organ—effectively paralyzing PAP’s legislative functions for over seven months. During this period, the Bureau lacked the quorum required to conduct official business.

February 2024 — Executive Council Intervention

In Decision EX.CL/Dec.1242(XLIV), the Executive Council instructed PAP to revisit its Rules of Procedure and to take into account the inconsistencies outlined by the OLC. In response, PAP amended its Rules in November 2024, aligning them with the Protocol in accordance with the OLC’s legal findings from October 2023. At that point, it appeared the issue had been resolved.

February 2025 — The U-Turn

However, in a reversal captured in PRC document PRC/Draft/Rpt (XLIX), the OLC shifted its stance. It now argued that a three-year cap was necessary to “preserve rotation” and prescribed that Bureau elections be held in June 2025. The OLC appended new draft language and insisted that PAP’s Rules remain suspended until revised “along OLC lines.” This move placed the OLC in a policymaking role—prescribing timelines and drafting operational rules—raising serious questions about the limits of legal counsel within the AU system.

Why the Sub-Committee Should Address the Overreach

As the PRC Sub-Committee executes its alignment mandate, it faces a critical choice: focus only on the text of the Rules or also address the institutional behavior that disrupted them. The latter is essential. The OLC did not merely issue legal advice—it acted in ways that suspended institutional function and reshaped governance arrangements. Confronting this overreach is not about blame; it is about legality, hierarchy, and institutional clarity.

1. Alignment Mandate Includes Root Cause Mitigation

The Executive Council’s directive was both corrective and preventive. The 2023–24 derailment was triggered by the OLC’s expansive reading of its advisory function. True alignment requires addressing not only what went wrong in the Rules, but why it went wrong—ensuring that the same misstep cannot recur under another guise.

2. Liaison Duty Reinforces Balanced Oversight

The Council instructed the Sub-Committee to act “in liaison with the Commission and PAP.” Given that the OLC is part of the Commission and PAP is the injured organ, institutional dialogue is not a deviation—it is essential. Liaison allows the Sub-Committee to hear both sides, clarify boundaries, and propose mutually respectful solutions.

3. Pipeline to Executive Council Action Must Be Complete

The Sub-Committee’s report is the only mechanism through which the Executive Council can consider formal corrective action. If the OLC’s overreach is omitted, the Council remains uninformed and unable to act. Silence would not be neutrality—it would be institutional neglect.

4. Norm Hierarchy Integrity and Legal Supremacy

AU law is clear. Article 17(2) of the Constitutive Act states that PAP’s structure must be governed by a Protocol. Article 26 of the Act and Article 20 of the PAP Protocol reserve interpretation to the Court of Justice, or pending its establishment, to the Assembly by two-thirds majority. Even Assembly/AU/Dec.757(XXXIII) (February 2020) only authorized the OLC to identify inconsistencies—not to impose or interpret binding outcomes. The OLC’s unilateral actions exceeded its mandate.

How the Sub-Committee Can Act Without Deviation from Mandate

The Sub-Committee can act effectively and lawfully by taking several structured steps:

·       Start with Facts: Include in its report a concise, chronological summary—recording the 2023 suspension, the Executive Council’s 2024 directive, PAP’s corrective vote in November 2024, and the OLC’s reversal in February 2025. Editorializing should be avoided.

·       Request Clarification: Send a formal request to the OLC with targeted questions:

·       Why is the 2023 opinion now “outdated”?

·       How does a fixed term align with Article 12(3)?

·       Given the Bureau elections held in March 2024 and the provisions of Rule 9(2) of the PAP Rules of Procedure, on what legal basis was a June 2025 election date prescribed?

·       Is rotation not already a settled principle within the African Union system, including under Article 12(4) of the PAP Protocol?

·       Propose Guardrails: Recommend that future OLC opinions on PAP Rules:

1.              Identify legal inconsistencies,

2.              Offer reform options,

3.              Refrain from supplying substitute text.

·       Refer Discipline Elsewhere: If follow-up is warranted, refer the matter to the Specialized Technical Committee on Justice and Legal Affairs or the AU Internal Oversight Office—thereby respecting institutional boundaries.

·       Provide Model Language: Attach draft Executive Council decision language that reminds the OLC of its advisory role and requests internal codification of those limits.

Wider Benefits of Tackling the Issue Now

1. Deterrence by Documentation

A documented institutional record will deter future overreach by clearly defining limits on legal counsel authority.

2. Institutional Learning

It shows the AU can correct itself internally—enhancing credibility with member states, partners, and the public.

3. Stronger PAP–Commission Relations

Clarified roles prevent friction and enable cooperation rooted in respect and legal certainty.

4. Precedent for Other Organs

Drawing a bright line between advice and prescription guides all AU organs, reinforcing the separation of roles and preventing interpretive overreach.

Conclusion: Fix the Fence, Lock the Gate

The Executive Council did not ask the Sub-Committee to merely correct the margins of PAP’s Rulebook; it tasked it with protecting the Parliament from future disruption. The root cause of that disruption was the OLC’s unauthorized leap from legal adviser to de facto rulemaker.

If handled with professionalism—fact first, solution second, and blame not at all—the Sub-Committee can offer the Council a clear roadmap: define the problem, propose the remedy, and re-anchor institutional roles. In short, it can both fix the fence and lock the gate. Anything less leaves PAP—and the Union—vulnerable to the very crisis the Council sought to prevent.