Unmasking the 2011 Amendments to the Pan-African Parliament’s Rules of Procedure

By Olu Ibekwe

The Executive Council, in its Decision EX.CL/Dec.1242(XLIV) of February 2024 on the situation in the Pan-African Parliament (PAP), directed the PAP Plenary to reconsider its suspended Rules of Procedure in light of the inconsistencies identified in the Legal Opinion issued by the Office of the Legal Counsel (OLC) in October 2023. Pursuant to this directive, the OLC, in November 2024, submitted to the Parliament a new set of proposed amendments to the Rules of Procedure.

In line with its statutory mandate, the Parliament’s Committee on Rules, Privileges, and Discipline undertook the task of scrutinizing these draft provisions. This responsibility, anchored in Articles 11(8) and 12.1 of the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (“PAP Protocol”), underscores the Parliament’s authority to adopt its own Rules and entrusts the Committee with a central role in ensuring their clarity, consistency, and conformity with the Protocol.

The Controversial Three-Year Tenure Clause

Among the most contentious provisions in the OLC’s November 2024 draft was the attempt to reinstate a fixed three-year tenure for the officers of the Parliament. This move stands in stark contrast to the OLC’s own October 2023 legal opinion, which had concluded that the three-year tenure was inconsistent with the PAP Protocol. That opinion had directly informed Executive Council Decision EX.CL/Dec.1242(XLIV), which suspended PAP’s amended Rules of Procedure pending reconsideration.

To justify its reversal, the OLC now cites Executive Council Decision EX.CL/Dec.460(XIV) of January 2009, arguing that the three-year term adopted by PAP in October 2011 already represented compliance with the 2009 directive.

Renewed Scrutiny of the 2011 Amendments

In light of these revelations, a growing wave of legal scrutiny has cast doubt on the legitimacy of the 2011 amendments. Central to this challenge is the imposition of the fixed three-year tenure for the Bureau, an amendment now widely regarded as both inconsistent with the PAP Protocol and tainted by procedural impropriety.

This ongoing debate is not merely academic. It strikes at the core of PAP’s institutional credibility, raising the question of whether the Parliament can maintain legitimacy while operating under Rules whose legal foundation is contested.

This article examines how the 2011 amendments were adopted in violation of Article 12.1 of the PAP Protocol, explores the institutional implications for the current Rules of Procedure, and suggests the corrective steps necessary to safeguard the Parliament’s legal and procedural integrity.

Legal Framework Governing Amendments to the Rules of Procedure

The powers and procedures for amending the Rules of Procedure are governed primarily by the PAP Protocol, which is a binding legal instrument ratified by AU Member States.

Article 12.1 of the PAP Protocol provides that:

“The Pan-African Parliament shall adopt its own Rules of Procedure on the basis of a two-thirds majority of all its members.”

This provision imposes two critical requirements:

1.     That the Parliament must be quorate i.e., a simple majority of Members must be present for business to be lawfully conducted; and

2.     That any adoption or amendment of the Rules must be approved by a two-thirds majority vote of Members and not by acclamation or consensus.

The Rules of Procedure adopted under this Protocol, particularly Rule 92(2), reinforce these requirements by outlining how amendments must be proposed, deliberated, and adopted, again emphasizing the importance of quorum and voting thresholds.

Events of 10 October 2011: Circumventing the Protocol

On 10 October 2011, the Pan-African Parliament sought to adopt a series of amendments to its Rules of Procedure. However, it was evident from the Hansard and official record that the minimum quorum required to conduct legal business was not met. Rather than postpone the matter or wait for a quorum, the Plenary was persuaded to adopt a motion moved by Hon. Lassané Sawadogo and seconded by Hon. Saleh Kebzabo.

The motion cited, among other justifications:

·       The urgency of aligning the Rules of Procedure with the legal instruments of the African Union;

·       The inability of the Parliament to amend its Rules due to the "restrictive" provisions of Rule 92;

·       Alleged “exceptional circumstances,” “force majeure,” and institutional paralysis;

·       The “authority of AU Decision EX.CL/459 (XIV) adopted in 2009 calling on PAP to harmonize its Rules with AU instruments.”

It then concluded with the following directive:

“The House decides:

1.     To suspend the provisions of Rule 92, paragraph 2;

2.     To adopt, by consensus, the proposed amendments to the Rules of Procedure, as submitted to the Plenary during the sitting of 10 October 2011.”

This motion effectively suspended the procedural safeguards enshrined in the Rules of Procedure and circumvented the legal framework of the Protocol by:

·       Waiving quorum requirements;

·       Reframing the required two-thirds vote into a voice vote by consensus; and

·       Treating an Executive Council decision as a sufficient basis to override Protocol requirements.

Analysis of the Motion and Its Implications

The lawfulness of this motion must be assessed against the hierarchy of norms within the African Union legal system.

1.     The Protocol Supersedes the Rules of Procedure

Under AU legal doctrine and international treaty law, the Protocol establishing the Pan-African Parliament is a binding treaty that supersedes any rules or internal practices adopted by the Parliament itself. Therefore, any attempt to suspend or override the provisions of the Protocol through internal motions or rules is ultra vires (beyond legal authority) and invalid.

“The Parliament cannot simply vote to bypass the Protocol. The Rules of Procedure are subordinate to the Protocol, which is a treaty instrument ratified by Member States. Any attempt to circumvent its provisions is legally void,” says a senior legal adviser to the AU.

2.     Article 12.1 is Mandatory and Non-derogable

The provisions of Article 12.1, which require quorum and a two-thirds vote, are mandatory procedural conditions. They are not subject to waiver by a simple motion regardless of urgency, consensus, or reference to "force majeure." There is no doctrine within AU law that permits the suspension of Protocol-mandated voting thresholds by internal decisions of the PAP.

3.     The Role of EX.CL/Dec.459(XIV)

The Executive Council Decision EX.CL/459 (XIV) of 2009, which called on the Pan-African Parliament (PAP) to harmonize its Rules of Procedure with AU instruments, cannot serve as a legal basis for adopting a three-year tenure for officers in violation of Article 12.3 of the PAP Protocol. Under AU law and the Vienna Convention on the Law of Treaties, treaty provisions such as those in the PAP Protocol take precedence over secondary instruments like Council decisions. Thus, while the Council can direct harmonization, it cannot override or amend a binding treaty text.

The scope of EX.CL/459 (XIV) was limited to ensuring consistency between PAP’s internal Rules and superior AU instruments, not to introduce provisions contrary to the Protocol. Indeed, when the AU sought to introduce fixed terms for the Bureau, it pursued this through a formal amendment process, resulting in the Malabo Protocol of 2014, underscoring that tenure is a matter reserved for treaty amendment, not secondary decision-making.

It therefore follows that any contention that the PAP or the OLC relied on EX.CL/459 (XIV) to justify a three-year tenure would be ultra vires, inconsistent with Article 12(3) of the PAP Protocol, and ultimately detrimental to the integrity of the African Union’s legal order. The only lawful avenue for introducing such a reform remains through the formal amendment and ratification of the Protocol itself.

A Violation of the PAP Protocol

Legal experts and institutional observers argue that the motion and the entire process it enabled were ultra vires, meaning it was beyond the legal authority of the Parliament. Article 12.1 of the PAP Protocol, which is binding on the Parliament, clearly stipulates that any amendment to the Rules must be adopted by a two-thirds majority of all its members and in a sitting where quorum is established.

Neither of these requirements was met on 10 October 2011.

The use of a voice vote in place of a roll-call two-thirds vote combined with the absence of quorum, renders the process by which the amendments were adopted legally deficient. Moreover, the Rules of Procedure themselves cannot override or derogate from the provisions of the Protocol. As such, any internal decision to suspend procedural safeguards set out in the Protocol lacks legal standing.

Why This Matters Now

While some may argue that more than a decade has passed since the 2011 amendments, the issue of legal validity does not expire. Parliamentary actions that were taken in violation of mandatory procedures are always subject to challenge, particularly when they introduce rules that conflict with the founding treaty of the institution.

“The passage of time does not cure a foundational illegality,” noted one former AU legal counsel. “If the process was flawed and the outcome contradicts the Protocol, then the legitimacy of those rules remains in doubt.”

Moreover, the implications of the 2011 amendments continue to ripple through PAP’s governance. The contested three-year tenure rule has already been at the center of leadership disputes, factional disagreements, and legal uncertainty, thereby undermining the Parliament’s authority and weakening its ability to project unity and legitimacy.

Need to Reaffirm Resolution PAP.6/PLN/PLN/RES/07/NOV.24

In view of the foregoing, the Pan-African Parliament (PAP) has both the legal authority and institutional responsibility to reaffirm its Resolution PAP.6/PLN/PLN/RES/07/NOV.24, which aligned its Rules of Procedure with the binding provisions of the PAP Protocol and the directive of the Executive Council in EX.CL/Dec.1242(XLIV). Reaffirmation would underscore PAP’s commitment to treaty supremacy within the AU legal order while providing much-needed clarity and continuity in the face of attempts to reintroduce provisions, such as a fixed three-year tenure that directly contradicts Article 12.3 of the Protocol.

By restating and standing by its November 2024 resolution, PAP would strengthen institutional credibility, ensure legal certainty, and reinforce its Plenary as the only organ with the competence to adopt and amend its Rules of Procedure. This action would also serve as a stabilizing measure, affirming that once the Rules have been aligned in conformity with higher legal instruments, they cannot be casually reopened or undermined by advisory interpretations or political expediency.

Most importantly, reaffirmation would signal to the policy organs of the AU, and the wider African public that PAP is committed to the principles of legality, accountability, and institutional integrity. It would show that the Parliament is not swayed by inconsistent advice or shifting practice, but remains anchored in its Protocol mandate, thereby consolidating its role as the legislative voice of the peoples of Africa.

Conclusion

The events of 10 October 2011 mark a procedural misstep that continues to cast a long shadow over the legislative legitimacy of the Pan-African Parliament (PAP). As Africa’s foremost continental legislative body, PAP is duty-bound to uphold the highest standards of treaty compliance, procedural integrity, and institutional transparency. Rectifying the irregularities surrounding the 2011 amendments is not merely a legal obligation, it is an institutional imperative.

Now is the time for PAP to confront this chapter of its history, correct the course, and reaffirm its unwavering commitment to legality and treaty discipline. Failure to do so risks entrenching institutional instability and eroding the very foundations upon which the African Union’s legislative arm is built.

As the Parliament’s Committee on Rules, Privileges, and Discipline continues the process of reviewing the OLC draft submissions, this moment presents a critical opportunity to reinforce legal discipline, restore confidence in its governance structures, and ensure that all institutional reforms are firmly grounded in the rule of law and the foundational instruments of the African Union.

PAP reaffirming Resolution PAP.6/PLN/PLN/RES/07/NOV.24 is not only an available option but also the most legally prudent course for the Parliament having been taken note of by the Executive Council in EX.CL/Dec.1288(XLVI).

That resolution, adopted on 12 November 2024, brought PAP’s Rules of Procedure into conformity with Article 12 of the PAP Protocol and with the explicit directive of the Executive Council in EX.CL/Dec.1242(XLIV) (Feb. 2024) that the suspended Rules be reconsidered in light of the Office of Legal Counsel’s opinion. By reaffirming the resolution, PAP would be demonstrating both institutional consistency and compliance with higher legal authority, namely the Protocol and binding Executive Council directives.

Such reaffirmation would also restore legal certainty, counter attempts to reintroduce provisions (like fixed three-year tenure) that contradict the Protocol, and signal PAP’s commitment to treaty supremacy within the AU legal order. It would thus consolidate its institutional credibility while preserving the integrity of the alignment process already completed by its Plenary.

Additionally, given that Executive Council Decision EX.CL/Dec.1288(XLVI) of February 2025 mandated the PRC Sub-Committee on Rules, Standards, and Verification of Credentials and Procedures, working in collaboration with the Commission and the Pan-African Parliament to finalize the alignment of the Rules with the Protocol, particularly regarding Bureau mandate and the principle of rotation, this moment also presents a critical opportunity to reinforce legal discipline, restore confidence in PAP’s governance structures, and ensure that all institutional reforms are firmly anchored in the rule of law and the foundational instruments of the African Union.