The Politics Behind Procedure: Fixing Legal Overreach to Restore AU Credibility (Part II of “Restoring Legal Order”)

By Olu Ibekwe

Why Procedure Still Matters

Seasoned diplomats often remind us that treaties stand or fall on procedural detail. Each rule, however minor it may seem, sends a signal to national governments, citizens and donors about whether the African Union (AU) genuinely upholds the principles and objectives laid out in its Constitutive Act—chief among them, respect for the rule of law, democratic governance, and institutional accountability. That’s why the Permanent Representatives’ Committee (PRC), acting through its Sub-Committee on Rules, Standards, and Verification of Credentials and Procedures, cannot afford to let the Office of the Legal Counsel’s (OLC) 2023–2025 interventions slip quietly into institutional memory. The line they blurred—between legal advice and legal decision-making —is still dangerously undefined. Leave it uncorrected, and the next rupture could gut the Union’s credibility just as it reaches for broader influence—from membership of the G-20 and steering AfCFTA implementation to anchoring a continental climate response.

This second installment unpacks the political stakes buried in what appears to be a “purely legal” disagreement, shows why the threat of renewed overreach is still very much alive, and lifts a few guardrails from the EU’s handbook—where the Council Legal Service and the European Court of Justice have spent decades policing the line between advice and rule-making. The takeaway is blunt: mend the fence and bolt the gate, or watch continental credibility seep away.

Why OLC Overreach Is Still a Live Issue

The OLC episode is more than an internal squabble; it is an unresolved test of institutional boundaries. Unless the PRC’s Sub-Committee on Rules confronts how a legal advisory memo morphed into de facto rule-making—and installs guardrails similar to those used by the EU’s Council Legal Service and European Court of Justice—another overnight edict could paralyze PAP or any other AU organ.

In October 2023, the OLC issued a legal opinion that dramatically altered the course of the Pan-African Parliament. Citing Article 12.3 of the PAP Protocol, the OLC argued that the terms of the President and First Vice-President had automatically expired, and urged the then Chairperson of the Commission, Moussa Faki Mahamat, to declare both offices vacant. Without granting an audience to the Bureau, convening PAP or referring the matter to the Executive Council for guidance, the Chairperson acted immediately: the Rules of Procedure were suspended, the vacancies were declared, and the Bureau was effectively stripped of its ability to function. For the next seven months, PAP lacked the quorum required to conduct official business, with only the Second and Third Vice-Presidents in place—unable to convene meetings or take substantive decisions.

Rather than scrutinize the legality or procedural soundness of that intervention, the Executive Council’s decision in February 2024—EX.CL/Dec.1242—effectively validated it. It called on PAP to revise its Rules in line with the OLC’s interpretation, thereby establishing a precedent where a legal opinion, ordinarily advisory in nature, had resulted in an institutional shutdown. Then came another twist: in November 2024, the same Office reversed its position, now recommending the reintroduction of a fixed three-year Bureau tenure (the very rule it had helped suspend) and even set a new election date for June 2025. This back-and-forth, carried out without judicial review or clear authorization from the Assembly or Executive Council, left many observers questioning how one advisory office could wield such far-reaching power. Until clear boundaries are drawn between legal interpretation and executive authority, the risk remains that similar actions could be repeated—plunging PAP, or any other AU organ, into a fresh crisis.

No Legal Basis for Unilateral Suspension of PAP Rules of Procedure

The Constitutive Act makes the Commission the Union’s secretariat, not its umpire. It confers:

·       Administrative coordination & monitoring (Art. 20);

·       Reporting non-compliance to the Executive Council (Art. 13);

·       No sanctioning or adjudicatory power—those sit with the Assembly (Art. 23) or, once operational, the African Court of Justice and Human Rights.

Article 11(4) of the PAP Protocol is even clearer: the Parliament alone adopts, amends, or suspends its Rules by a two-thirds majority. The then Chairperson’s 2023 suspension therefore lacked treaty footing and blurred the constitutional separation between legal counsel, political authority, and judicial interpretation.

Drawing the Red Line—Lessons from the European Union

The European Union offers a practical model for separating legal advice from authoritative decision-making—one that the African Union could usefully adapt. Within the EU, the Council Legal Service (CLS) plays an important but carefully limited role: it provides legal opinions to ministers and national representatives, highlighting risks and outlining lawful options. However, the CLS does not—and cannot—issue binding instructions or suspend procedures. That power rests exclusively with the political institutions, ensuring that legal counsel informs but does not dictate decision-making. Draft legislation remains the domain of elected bodies or the European Commission, and any legal concerns raised by the CLS are treated as guidance, not enforceable rulings.

Interpretative authority lies elsewhere. The European Court of Justice (CJEU) is the sole institution empowered to provide definitive interpretations of EU law. It settles disputes between institutions and member states and ensures that the law is applied uniformly across all countries. By maintaining a strict line between internal legal advice and judicial interpretation, the EU prevents its legal advisers from becoming de facto rule-makers.

This structure offers several safeguards the AU currently lacks. First, it affirms that legal advice is advisory—not executive. Second, it ensures that any conflict over rules or treaties is resolved by a neutral, judicial body. Third, it promotes transparency: the CLS regularly publishes summaries of its opinions, creating a public record that can be used to assess consistency and fairness over time. If the AU were to adopt similar safeguards—clarifying the limits of the OLC’s role, creating a formal mechanism for reviewing legal advice, and referring disputes to the African Court—it could better protect institutional integrity and prevent future overreach.

Why Getting It Right Is Important

Legal certainty within the African Union (AU) is more than a constitutional ideal—it is a strategic asset. Donors, development banks, and private investors gauge risk by the predictability of institutions. When governance structures like PAP are exposed to abrupt legal reversals or opaque decisions, those risks translate into cautious lending, or withdrawal of support. Demonstrating that AU organs operate within clear, treaty-based rules—and that no internal office can unilaterally disrupt their functioning—sends a powerful message to partners: the Union honours its legal frameworks, and their investment is secure.

Equally, clarity and restraint in rule-making ease the fears of member states wary of losing sovereign control. Concerns over “supra-national drift” have slowed the ratification of key instruments like the 2014 Revised PAP Protocol. But a visibly disciplined and procedurally transparent Parliament reassures member states that no power grab is brewing—only a predictable, rules-based body working within its mandate. That confidence is essential for both institutional cooperation and political trust. Moreover, from AfCFTA implementation to anti-corruption model laws, PAP cannot deliver on its growing responsibilities if periodic paralysis renders it inoperative. Legal stability is therefore not just about principle—it is the backbone of delivery.

Recommendations for the PRC Sub-Committee on Rules

Why these reforms matter: The 2023–2025 episode revealed how legal uncertainty at the centre of the AU can derail entire organs, paralyze legislative work, and damage the Union’s credibility. To prevent future crises, the PRC Sub-Committee on Rules must act decisively to clarify roles, enforce treaty hierarchy, and insulate advisory functions from executive overreach. The following steps can help institutionalize those safeguards.

1. Codify the Advisory Nature of OLC Opinions in a Council Decision

The first and most urgent step is to formally define the legal status of OLC opinions. As it stands, there is no clear AU-wide norm distinguishing between advisory memos and enforceable directives. This legal ambiguity allowed the OLC’s October 2023 opinion to be treated as a trigger for suspending PAP’s Rules and declaring offices vacant—actions with enormous institutional consequences. The Executive Council should adopt a binding decision reaffirming that:

·       The Office of the Legal Counsel provides non-binding legal advice to AU organs;

·       No OLC opinion may be implemented as a directive unless specifically endorsed by the Executive Council or Assembly;

·       Organs affected by an OLC opinion retain the right to respond, seek clarification, or request independent review.

This will restore proper separation between legal counsel and political authority and ensure that advisory input does not turn into executive fiat.

2. Establish a Mandatory Peer Review Process for High-Impact Legal Opinions

Before any legal opinion with far-reaching implications (such as suspending an organ’s rules or declaring leadership positions vacant) is acted upon, there should be a requirement for a Legal due diligence procedure. This could involve:

·       A panel of independent legal experts (e.g. from the African Union Commission on International Law, the African Court, Attorneys General of member states, or retired jurists);

·       Cross-referencing with previous OLC opinions to avoid contradictions;

·       A legal conformity check to ensure alignment with the Constitutive Act, Protocols, and Executive Council decisions.

This peer review would act as a quality control mechanism, preventing inconsistent or politically vulnerable interpretations from being acted upon without wider scrutiny.

3. Introduce a Graduated Enforcement Framework Instead of Drastic Measures

The 2023 suspension of PAP’s Rules was an all-or-nothing action with enormous consequences. To avoid such institutional overkill in the future, the PRC should endorse a graduated enforcement mechanism that includes:

·       Early warnings to organs drifting from treaty obligations;

·       Technical compliance missions to clarify legal concerns before escalation;

·       Mediation windows facilitated by the PRC or a neutral panel;

·       Time-bound compliance directives with specific benchmarks;

·       Referral to the Executive Council only as a last resort.

This approach ensures that legal compliance is enforced proportionately and with respect for institutional autonomy, avoiding overreach that destabilizes AU organs.

4. Fast-Track the Operationalization of the African Court of Justice and Human Rights

One of the reasons legal ambiguity persists within the AU is the absence of a functioning judicial forum with clear jurisdiction over institutional disputes between organs. While the African Court on Human and Peoples’ Rights is active, it is limited in scope and cannot rule on intra-organ legal questions.

The PRC should accelerate:

·       Ratification of the Malabo Protocol, which expands the jurisdiction of the African Court to cover general legal and institutional disputes;

·       Provisional measures, such as appointing an interim arbitral panel or advisory chamber to resolve questions pending full court operationalization;

·       Clarifying procedures through which organs can seek binding interpretations, rather than relying on internal Commission opinions alone.

Once operational, the African Court of Justice and Human Rights would provide neutral, authoritative dispute resolution, bringing clarity to treaty interpretation and legal hierarchy.

5. Create a Decision-Tracking and Treaty-Compliance Mechanism Across All Organs

The failure to implement the Executive Council’s 2017 and 2018 directives on PAP leadership rotation went unnoticed until the 2021 crisis exploded. This institutional oversight could have been avoided with a formal decision-tracking matrix within the Commission, but overseen by the PRC, that would:

·       Monitor each AU organ’s compliance with Council and Assembly decisions;

·       Flag inconsistencies between an organ’s internal rules and binding treaties;

·       Trigger follow-up dialogues or corrective guidance before disputes escalate;

·       Provide the PRC with regular compliance reports to inform its oversight function.

Such a system would serve as a preventive tool, catching drift before it becomes paralysis.

In Summary

These reforms are not about clipping the wings of the Commission or diminishing the advisory role of the OLC. They are about restoring balance between advice and authority, clarifying institutional roles, and building the procedural muscle needed for a credible, rule-based African Union. If adopted, these safeguards would help the PRC draw a clear, enforceable red line between legal guidance and executive overreach—ensuring that never again can a single legal memo disable a continental institution in the dead of night.

Conclusion – Credibility Is Built in the Boundaries

Constitutions live or die in the footnotes, and the AU’s legitimacy hangs on whether it practices the very procedural discipline it preaches to member states. By drawing a Brussels-style red line between counsel and commander, the PRC will not merely settle an internal turf dispute; it will broadcast to Africa—and to the world—that the Union polices itself before anyone else has to. Ignore the lesson, and every future advisory opinion risks becoming another overnight edict, another credibility dent, another question mark in a donor’s margin.

Fix the fence, lock the gate, and keep the house standing. The politics behind procedure may be invisible to the untrained eye, but they are the load-bearing walls of the African Union project.