How the OLC’s Admission on PAP Rules Amendments Undermines Their Legitimacy

The OLC’s admission that some PAP Rules proposals came from the Secretariat undermines credibility, exposes overreach, and reinforces Protocol supremacy.

The July 2025 workshop of the Pan-African Parliament (PAP) Committee on Rules, Privileges, and Discipline revealed an admission by the African Union’s Office of the Legal Counsel (OLC) that may have far-reaching implications for the credibility of ongoing rules reform. The OLC conceded that several controversial proposals contained in the draft amendments to PAP’s Rules of Procedure did not emanate from its own legal review mandate, but instead originated from the PAP Secretariat.

This revelation was seismic. The disputed amendments included attempts to elevate the Secretariat to the status of an organ of Parliament, to introduce ranking among Vice Presidents despite the Protocol’s clear requirement of rotation, and to impose term limits for Bureau officers without amending the Protocol. All these proposals had either been previously rejected by plenary in 2022 or were plainly inconsistent with the Protocol and therefore raise serious questions about the weight to be accorded to the OLC’s draft amendments. It also validates the Committee’s persistent concerns that the amendment process had been burdened with inputs that lacked treaty grounding and plenary authorization.

One member captured the mood bluntly after the workshop: “It is not the role of the Secretariat to reinvent Parliament. The Protocol is our compass, and no administrative officer can override it.”

The OLC’s Mandate is Limited and Technical

The authority of the OLC to review Rules of Procedure across the African Union system stems from Assembly/AU/Dec.757(XXXIII). That Decision mandated the OLC to examine AU legal instruments, identify inconsistencies or conflicts, and provide technical advice for their alignment.

In simple terms, the OLC was tasked with a technical and advisory role, not a political or legislative one. It was never empowered to validate Secretariat-driven ideas or to draft substantive reforms on its own initiative. To do so would amount to arrogating a quasi-legislative function, which rests exclusively with the AU Assembly under Article 9 of the Constitutive Act and the formal amendment procedures under AU treaties.

By admitting that proposals such as Secretariat elevation, VP ranking, and Bureau term limits came from the PAP Secretariat, the OLC underscored that these provisions lacked the binding authority of treaty law.

Secretariat Overreach: Proposals Without Treaty Backing

The most glaring examples of Secretariat overreach were the proposals to:

·       Elevate the Secretariat to the status of an organ — directly contradicting Article 12.5 of the PAP Protocol, which designates it only as a support structure.

·       Introduce ranking among Vice Presidents — in clear violation of Article 12.7, which requires that Vice Presidents act in rotation, ensuring equality among the five regions.

·       Impose fixed tenure limits for Bureau members — even though tenure is expressly provided for in the Protocol, which can only be amended through treaty revision.

Members were puzzled that these rejected or ultra vires proposals resurfaced, this time under the OLC’s cover. One participant asked pointedly: “Why are we debating again what the plenary already dismissed? Are we to legislate twice on the same mischief?”

Such overreach blurred the line between Secretariat support and legislative authority, eroding confidence in the amendment process.

Article 12.5 and 12.6: The Limits of Secretariat Authority

Article 12.5 of the PAP Protocol states that the officers, under the control and direction of the President and subject to directives of the Parliament, shall be responsible for the management and administration of the affairs and facilities of the PAP and its organs. In the discharge of their duties, the Officers are to be assisted by the Clerk and two Deputy Clerks. Article 12.6 further provides that “The Pan-African Parliament shall appoint a Clerk, two Deputy Clerks and such other staff and functionaries as it may deem necessary for the proper discharge of its functions and may by regulations provide for their terms and conditions of office…”

These provisions make it abundantly clear that staff, including the Clerk and Deputies, are appointed to assist the elected officers of Parliament in executing their mandate. It is therefore absurd that, notwithstanding the express provisions of Articles 11(8) and 12.1, staff appointed under Article 12.6 could presume to draft Rules of Procedure, purport to prescribe codes of conduct for their employer, or even attempt to dictate the number of meetings to be held by the officers of Parliament. Such actions invert the hierarchy of authority envisioned by the Protocol, subordinating elected representatives to their support staff — an outcome wholly inconsistent with treaty provisions.

Executive Council’s Directive: PAP, Not OLC, Holds the Pen

The credibility of the OLC draft amendments was further undermined by the Executive Council’s February 2024 decision EX.CL/Dec.1242(XLIV). In that decision, the Council explicitly directed the PAP Plenary—not the OLC—to reconsider the amended Rules of Procedure, taking into account the inconsistencies identified in OLC Opinion BC/OLC/23.18/13795.23 of October 2023.

The Council’s language was deliberate: the plenary, not the OLC, is the sovereign authority to amend PAP’s Rules. The OLC’s function is to flag inconsistencies, not to insert new proposals from the Secretariat or to validate departures from the Protocol.

In the words of another committee member: “The Executive Council asked us to correct inconsistencies, not to entertain new experiments. The OLC cannot substitute its opinion for the will of the plenary.”

Treaty Supremacy and the Principle of Discipline

At the heart of this debate lies the principle of treaty supremacy. The PAP Protocol is not a guideline but a binding legal instrument. It governs representation, tenure, functions, and institutional hierarchy within Parliament. Any amendment to these provisions must follow formal treaty amendment procedures, not be smuggled into the Rules of Procedure through Secretariat drafts.

The Committee’s insistence on rejecting Secretariat proposals was therefore not simply procedural housekeeping. It was a defense of the African Union’s legal order. Accepting such proposals would set a dangerous precedent, opening the door to administrative circumvention of binding treaties.

Implications for PAP Reform

The OLC’s admission carries important lessons:

1.     Legitimacy Questioned: Proposals lacking treaty foundation cannot stand, even if carried in OLC documents.

2.     Mandate Clarified: The OLC remains an advisor, not a legislator.

3.     Process Strengthened: The Committee’s vigilance reinforces the primacy of plenary authority.

4.     Credibility Affected: The inclusion of Secretariat-driven proposals weakens the credibility of the OLC’s draft amendments.

Conclusion: A Lesson in Integrity and Guardrails

The July 2025 workshop will be remembered as a turning point. By exposing the Secretariat’s hand in controversial proposals, and by clarifying the OLC’s limited advisory mandate, members drew a clear red line: the Protocol cannot be bypassed.

As one delegate concluded, “We must guard the Parliament’s rules jealously. If we allow administrative shortcuts today, tomorrow we may wake up to find the Protocol rewritten without a single ratification.”

For the Pan-African Parliament, this episode is a timely reminder that its legitimacy rests on treaty discipline, institutional integrity, and respect for plenary authority. Anything less risks eroding not only the credibility of the Rules of Procedure, but also the very foundation of the Union’s legal order.

Key Takeaways

·       OLC admission: Some draft rules originated from the Secretariat, not the OLC’s legal review.

·       Secretariat overreach: Proposals contradicted Articles 12.5, 12.6, and 12.7 of the Protocol.

·       Credibility weakened: Draft amendments lost legitimacy by including rejected and ultra vires proposals.

·       Executive Council directive: Reaffirmed that only the PAP Plenary has authority to amend Rules.

·       Treaty supremacy: Protocol provisions remain binding; Secretariat staff cannot legislate for their elected employer.