Law Above Custom: African Court Jurisprudence and the Future of PAP

By Olu. Ibekwe

In the life of every institution, there comes a defining moment when fidelity to law is tested against the weight of entrenched custom or practice. For the Pan-African Parliament (PAP), that moment has arrived. At the centre of the ongoing debates over Bureau tenure, rotation, and internal rules lies a simple but profound question: Can institutional practice override the binding provisions of the PAP Protocol?

The answer, firmly grounded in African Union (AU) treaty law and jurisprudence, is no. The Protocol establishing the Pan-African Parliament is a ratified treaty, and by the very logic of international law, it reigns supreme over informal customs or practices that may have crept into the institution’s daily operations.

Lessons from the African Court

The African Court on Human and Peoples’ Rights has already spoken, on multiple occasions, to this precise tension between law and practice.

In APDH v. Côte d’Ivoire (2016), the Court was confronted with an electoral system that was consistent with domestic practice but inconsistent with continental treaties such as the African Charter on Democracy, Elections and Governance (ACDEG). The Court ruled unequivocally that Côte d’Ivoire had violated its obligations:

“The Court rules that the Respondent State has violated its obligation to establish an independent and impartial electoral body as provided under Article 17 of the ACDEG and Article 3 of the ECOWAS Democracy Protocol … and orders the Respondent State to amend Law No. 2014-335 … to make it conform to the above-mentioned instruments within twelve (12) months.”

Practice, however entrenched, was not a defence.

The point was reinforced in Suy Bi Gohoré Emile & Others v. Côte d’Ivoire (2020), when the Court found that Côte d’Ivoire’s subsequent legislative amendments still fell short of treaty standards:

“The Court finds that the Respondent State has not fully complied with its obligations under Article 17 of the ACDEG and Article 3 of the ECOWAS Democracy Protocol … and orders the Respondent State, before any election, to take the necessary measures to bring Law No. 2019-708 into full conformity with the above instruments.”

Once again, the Court held that States cannot partially comply or rely on entrenched arrangements; the only valid measure is full alignment with AU instruments.

Even more striking is Lohé Issa Konaté v. Burkina Faso (2014). Here, the Court struck down criminal defamation laws that were perfectly legal under Burkina Faso’s domestic regime but incompatible with the African Charter and the ICCPR. In doing so, it affirmed the supremacy of ratified treaties over national law and practice.

Supremacy of Treaty Over Practice: A Settled Principle

The jurisprudence of the African Court makes it abundantly clear that the supremacy of ratified treaties and protocols over customs or practice is now a settled principle in the African Union legal order.

In APDH v. Côte d’Ivoire, the Court dismissed reliance on domestic practice and ordered the State to amend its laws to conform with ACDEG and the ECOWAS Protocol. In Suy Bi Gohoré Emile, it reaffirmed that even partial reforms or entrenched legislative arrangements are insufficient unless they meet treaty standards. And in Lohé Issa Konaté, it held that domestic criminal law must yield to the African Charter and ICCPR.

Taken together, these cases establish a jurisprudence constante: once an AU Member State has ratified a legal instrument, its provisions take precedence over conflicting national laws, administrative arrangements, or customs. This principle, having been clarified repeatedly by the AU’s own judicial organ, is no longer contestable within the AU system.

For PAP, the consequence is direct: Articles 12.3 and 12.4 of the PAP Protocol cannot be diluted, suspended, or reinterpreted through custom or practice. The Protocol stands supreme, and institutional alignment is both a legal duty and a political necessity.

A Parliament Anchored in Law

The struggle between law and practice is not unique to PAP; it is the perennial challenge of governance across the continent. But in PAP’s case, the stakes are higher. As the legislative organ of the African Union, PAP cannot afford to compromise on the principle of treaty supremacy. To do so would erode its own legitimacy and weaken its authority in calling Member States to compliance.

The African Court has provided a clear roadmap: treaties prevail, practice yields.

For PAP, the way forward is therefore anchored not in nostalgia for past customs but in strict fidelity to the Protocol. This is how the Parliament will not only resolve its current institutional debates but also assert itself as a credible guardian of continental legality.

Conclusion

The supremacy of the PAP Protocol over practice is not an abstract principle. It is a lived judicial reality across Africa, affirmed repeatedly by the African Court. The Parliament now has the opportunity—and indeed the obligation—to align itself with this jurisprudence.

In doing so, it will demonstrate to Member States, to African citizens, and to the wider world that at PAP, law, not custom, defines legitimacy.

And let there be no ambiguity: opinions of the Office of the Legal Counsel (OLC) are advisory in nature. They may guide interpretation, but they cannot override or dilute the binding force of a ratified treaty. The PAP Protocol is treaty law. Its provisions are binding, not optional; supreme, not negotiable. Any attempt to subject its clear rules to “practice” or to reinterpret them through advisory opinions would be a profound departure from the rule of law within the AU system.

The message is therefore unequivocal: OLC may advise, but the Protocol commands. Its supremacy cannot be negotiated away.

🔑 Key Takeaways: Supremacy of Treaty over Practice

African Court Jurisprudence is Clear

v APDH v. Côte d’Ivoire (2016): Practice or national law cannot justify deviation from AU treaties. Côte d’Ivoire was ordered to amend its electoral law to align with ACDEG and the ECOWAS Protocol.

v Suy Bi Gohoré Emile & Others v. Côte d’Ivoire (2020): Partial reforms still fell short; Court reaffirmed that only full conformity with AU instruments is acceptable.

v Lohé Issa Konaté v. Burkina Faso (2014): National defamation laws struck down as incompatible with the African Charter and ICCPR — treaties prevail over entrenched domestic laws.

A Settled AU Principle

v The supremacy of AU treaties and protocols over custom, practice, or domestic legislation is now a jurisprudence constante of the African Court.

v Once ratified, AU legal instruments must be given effect, regardless of contrary institutional practices.

Implications for PAP

v Articles 12.3 and 12.4 of the PAP Protocol on Bureau tenure and rotation cannot be re-interpreted or diluted by a “three-year practice” or any other custom.

v The new supremacy clause in PAP’s Rules is fully consistent with African Court jurisprudence.

v PAP’s credibility depends on applying the same principle of treaty supremacy it demands of AU Member States.