FEATURE: How the OLC Manipulated Its Way into the Pan-African Parliament’s Rule-Making Authority

By Olu. Ibekwe

This feature uncovers how the Office of the Legal Counsel misinterpreted Executive Council decisions to extend its control over the Pan-African Parliament’s internal Rules of Procedure, an act that undermines Article 11(8) of the PAP Protocol and the principle of treaty supremacy within the African Union.

An Institutional Overreach Cloaked in Legalese

In the intricate architecture of the African Union, every organ is guided by a clearly defined legal mandate. For the Pan-African Parliament (PAP), this mandate is firmly grounded in Article 11(8) of its Protocol, which expressly provides that “The Pan-African Parliament shall adopt its Rules of Procedure.” This provision enshrines PAP’s internal autonomy as a treaty-based legislative institution, distinct from other administrative organs of the Union.

Yet, in recent years, a creeping and largely self-engineered expansion of authority by the Office of the Legal Counsel (OLC) has begun to erode that autonomy. Through a subtle manipulation of Executive Council decisions, the OLC has maneuvered itself into a position of de facto control over PAP’s rule-making process — a function that the Protocol never intended to delegate.

The Background: From Consensus Adoption to Contested Review

On November 4, 2022, the Pan-African Parliament adopted amendments to its Rules of Procedure through a consensus-driven process that involved all regional caucuses. The adoption marked a milestone in the Parliament’s effort to ensure inclusivity and procedural harmony after years of institutional contention.

However, on August 21, 2023, a complaint was filed by some Members of the Parliament alleging that the amended Rules violated Articles 5 and 12 of the PAP Protocol. This complaint triggered a formal review by the OLC, effectively reopening an internal parliamentary process that had already been settled by the Plenary.

In response, the OLC issued a legal opinion referenced BC/OLC/23.18/13795.23 of 4 October 2023, which in paragraph I.4 stated:

“The aforementioned request follows the standing directive of the Policy Organs vide decisions Assembly/AU/Dec.757(XXXIII) and EX.CL/Dec.1128(XXXIX) of February 2020 and October 2021, respectively, instructing the OLC to review and examine the rules of procedure of the PAP towards identifying areas of incoherence, inconsistencies, contradictions, or conflicts with other governing AU legal instruments, and proffer advise on necessary amendments and alignments, as appropriate.”

However, Assembly Decision 757(XXXVI) only authorized the OLC to identify areas of inconsistency or incoherence and report back — not to review, revise, or proffer advice on amendments. The OLC unilaterally expanded the scope of the directive by adding “and proffer advice on necessary amendments and alignments, as appropriate.”

This subtle expansion of language became the gateway through which the OLC transformed a technical advisory assignment into a continuing administrative oversight of PAP’s internal rule-making authority.

Furthermore, the Executive Council’s statement in paragraph 6 of EX.CL/Dec.1242(XLIV) — which the OLC has since asserted as its authority for the current review and drafting of PAP’s Rules — was itself based on this initial erroneous reliance on a non-existent mandate in Assembly Decision 757(XXXVI). In effect, the OLC built its continuing role upon a procedural misrepresentation, creating a chain of administrative actions unsupported by any legitimate Executive Council directive.

From Advisory Role to Administrative Command

The starting point of this institutional distortion can be traced to Assembly Decision 757(XXXVI) of February 2020. That decision merely requested the OLC to identify areas of incoherence or conflict between PAP’s Rules of Procedure and other AU legal instruments. It did not confer on the OLC any authority to review, approve, or rewrite the Rules.

However, following subsequent discussions in the Executive Council, particularly EX.CL/Dec.1128(XXXIX) of October 2021, the OLC began to assert that it had been specifically mandated to “review” the Rules for consistency with AU law. This interpretation was both erroneous and opportunistic. The decision in question amend its limited scope.

By importing a mandate that did not exist, the OLC effectively elevated its advisory role into an administrative veto power — one that allowed it to insert itself into the Parliament’s internal processes, even to the point of blocking or revising Rules adopted by the plenary.

A Classic Case of Bureaucratic Capture

This evolution represents a textbook case of what scholars of institutional law call bureaucratic capture: the quiet accumulation of authority by a technical office through interpretative elasticity and procedural control.

The OLC’s position as legal adviser to all AU organs gave it a privileged interpretative space, but that space was never meant to displace the rule-making sovereignty of treaty organs like PAP. Article 11(8) of the PAP Protocol, read together with Article 12(5) which vests the Bureau with management authority, leaves no ambiguity: only PAP itself can make its internal rules.

By positioning itself as a gatekeeper of legal consistency, the OLC has transformed what should be a cooperative legal review into a hierarchical approval regime, reducing the Parliament to a client of its own legal adviser.

The Consequences: Institutional Paralysis and Erosion of Trust

The immediate effect of this overreach has been to paralyze the rule-making process and sow distrust between the Parliament and the Commission. On several occasions, the OLC’s “legal review” became a tool to reopen settled issues, delay transmission of approved rules, and reinterpret treaty provisions in ways that undermined both the supremacy of the PAP Protocol and the authority of the Plenary.

By encroaching upon the legislative autonomy of PAP, the OLC not only violated the letter of the Protocol but also compromised the balance of powers among AU organs. The Commission’s Legal Counsel, meant to serve as a neutral arbiter, instead became an actor in the political contestations within PAP, lending institutional legitimacy to factions opposed to protocol compliance.

Treaty Supremacy Versus Administrative Opportunism

The larger constitutional issue at stake is not merely bureaucratic but jurisprudential. The PAP Protocol, being a ratified treaty, ranks above administrative decisions of the Executive Council or internal directives of the Commission. Therefore, no internal AU office, (including the OLC) may act in ways that contradict or displace the authority conferred by the Protocol.

The doctrine of treaty supremacy demands that where there is a conflict between a treaty and an administrative practice, the treaty prevails. By ignoring this principle, the OLC’s conduct risks not only institutional illegitimacy but potential judicial censure should the matter be brought before the African Court on Human and Peoples’ Rights or the AU Administrative Tribunal.

Restoring Legality and Institutional Balance

The remedy lies in a clear reaffirmation by both the Executive Council and the Assembly of the boundaries of OLC’s role. The Legal Counsel must return to its proper advisory function, offering opinions without encroaching on the internal competences of treaty organs.

For PAP, this moment calls for vigilance and assertion of its rights under Article 11(8). To permit any administrative office to supervise or override its Rules is to surrender a hard-won principle of parliamentary independence that is central to its mission as the continental legislature.

Conclusion: A Subtle Coup Against a Treaty Organ

What began as a technical exercise in “harmonization” has become a silent coup against the institutional autonomy of the Pan-African Parliament. The OLC’s manipulation of Executive Council decisions reflects a deeper tension within the African Union system, between the administrative organs that seek to control and the treaty organs that seek to function independently.

Restoring the integrity of PAP’s rule-making process is therefore not merely a procedural correction. It is a defense of treaty law over administrative opportunism, and of continental democracy over bureaucratic dominance.