Pan-African Parliament Confronts Legal and Institutional Anomalies Over Members’ Allowances and Treaty Supremacy

A defining debate on the supremacy of the PAP Protocol and the rights of elected Members

The opening day of the Sixth Ordinary Session of the Sixth Legislature of the Pan-African Parliament (PAP) was dominated by a defining institutional debate over Members’ allowances, legal recognition, and the supremacy of the PAP Protocol within the African Union (AU) system.

The discussion, introduced by H.E. Chief Fortune Charumbira, President of the Pan-African Parliament, exposed widespread frustration with the AU Commission’s persistent refusal to restore allowances for Members, an impasse he described as “not merely administrative, but constitutional and existential.”

A Legal and Institutional Paradox

Since 2019, Members of the Pan-African Parliament have not received sitting allowances, despite the express provision in Article 10 of the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament, which provides that:

“The Pan-African Parliamentarians shall be paid an allowance to meet expenses in the discharge of their duties.”

The President recalled that this practice had been consistently implemented from PAP’s inauguration in 2004 until it was abruptly suspended under the AU Commission’s 2019 “harmonization of remuneration” exercise. While other organs of the Union retained their statutory benefits, PAP Members who are designated by their respective national parliaments were inexplicably excluded from the harmonized framework.

“We have reached a point where the principle of treaty supremacy must be asserted. The PAP Protocol, adopted and ratified by Member States, is a binding legal instrument. No internal administrative rule can override or suspend it,” President Charumbira affirmed.

OLC’s Objections and the Legal Tension

The Office of the Legal Counsel (OLC), in collaboration with the AU’s Department of Human Resources, advised against implementing the Executive Council’s February 2025 decision which directed the Commission to restore Members’ allowances.

The OLC argued that:

1. PAP Members are not expressly covered under the AU Staff Rules and Regulations (SRR);
2. They are “not elected officials of the Union” in the administrative sense; and
3. The AU Commission could not act in the absence of formal “terms of reference” for parliamentarians.

Members denounced the reasoning as both procedurally untenable and legally inconsistent with the AU’s founding instruments. “Asking for terms of reference for elected parliamentarians is an absurdity,” remarked Hon. Lucia Dos Passos (Cabo Verde). “Parliamentarians are governed by the Protocol, the supreme legal basis of this institution. We are not project consultants.”

Hon. Dr. Fatimetou Habib (Mauritania) warned that the OLC’s position “blurs the separation of powers within the African Union” and, if left unchallenged, “would reduce the Parliament to a secretariat-dependent bureau rather than an autonomous organ established by treaty.”

Members’ Reactions: Reasserting the Supremacy of the PAP Protocol

Across the regions, Members spoke with conviction that the OLC’s opinion contradicted the hierarchy of AU legal instruments and undermined the binding effect of Executive Council Decisions.

Hon. Djidda Mamar Mahamat (Chad) stressed that:

“The AU’s legal order is hierarchical. The Constitutive Act and ratified Protocols stand above Staff Rules and internal circulars. When an organ of the Union exercises powers conferred by a treaty, no administrative office can dilute those rights.”

From East Africa, the Kenyan delegation added legal and moral weight to the argument. Kenya, which has consistently funded its delegation despite AU budget constraints, reaffirmed its traditional stance on the supremacy of treaty law and institutional integrity.

“If internal administrative rules can suspend a ratified Protocol, then the very foundation of the Union’s legal order collapses,” the Kenyan representative asserted. “The Staff Rules are subsidiary to treaties and Executive Council decisions. The Parliament’s mandate and Members’ entitlements are already clearly established in Article 10 of the Protocol, they are not subject to reinterpretation.”

The intervention drew applause from the Chamber, with Members noting that Kenya’s position reflects a long-standing principle of continental constitutionalism: that the Pan-African Parliament must function as a treaty-based legislative organ, not as a subsidiary department of the AU Commission.

“We cannot build a people’s Parliament while remaining administratively subordinate. The Commission must respect the separation of powers envisaged in the Constitutive Act and the PAP Protocol,” the Kenyan delegate added.

Reconciling the OLC’s Position with Rule 78.1 of the AU Staff Rules and Regulations

Several Members invoked Rule 78.1 of the AU Staff Rules and Regulations, which provides that:

“These Rules shall be read together with relevant Executive Council and Assembly Decisions, Treaties, Conventions, Protocols, Statutes, Regulations and Rules including the following: (a) Financial Regulations and Rules; (b) OAU General Convention on Privileges & Immunities; (c) Salary scales for the various categories of staff; (d) Statutes and Rules of Procedure of the Union’s Administrative Tribunal; (e) Statutes of the Commission.”

Members emphasized that Rule 78.1 itself subordinates the Staff Rules to higher-order legal instruments, mandating that they be read together with Treaties, Protocols, and Executive Council Decisions.

Another member noted:

“Rule 78.1 acknowledges the supremacy of treaties and Executive Council decisions. If the Council has already directed the payment of allowances, there is no lawful basis for the OLC to suspend compliance.”

By this interpretation, the PAP Protocol and Executive Council Decision stand as superior legal sources, to which the Staff Rules must conform, not the reverse.

Executive Council’s February 2025 Decision

President Charumbira reminded Members that the Executive Council, at its February 2025 session, had explicitly directed the AU Commission to implement the payment of allowances to PAP Members “in accordance with Article 10 of the PAP Protocol.”

That directive, adopted by the Executive Council under Article 13(3) of the Constitutive Act and Article 10 of the PAP Protocol, is binding on all AU organs.

“The Executive Council’s decision cannot be treated as a recommendation. It is a directive issued under the authority of the Constitutive Act. We expect the Commission to implement it, not reinterpret it,” Charumbira declared.

Members Warn of Possible Legal Action

In one of the most decisive moments of the debate, several Members warned that if the AU Commission continues to disregard a binding Protocol and Executive Council decision, the Parliamentarians may be compelled to seek redress before an appropriate AU judicial body, potentially the the African Court on Human and Peoples’ Rights.

“If the Commission persists in defying a binding Protocol, we may have no option but to approach the relevant AU Court for an authoritative interpretation and enforcement,” one Member cautioned. “Such an action would include a claim for arrears and back pay from 2019, when the allowances were unlawfully suspended.”

This collective position reflected Members’ growing resolve to defend the Parliament’s treaty-based rights through judicial recourse if administrative remedies fail.

Broader Implications: Institutional Autonomy and Treaty Hierarchy

The debate evolved into a broader discourse on institutional autonomy, constitutional hierarchy, and respect for the rule of law within the African Union.

Members cited landmark African Court on Human and Peoples’ Rights jurisprudence — including Actions pour la Protection des Droits de l’Homme (APDH) v. Côte d’Ivoire and Suy Bi Gohoré Emile v. Côte d’Ivoire,  which affirmed that once a State ratifies an AU treaty, its provisions acquire binding and superior status over conflicting national or administrative measures.

A parliamentarian from the Western Region underscored that “the African Court’s jurisprudence leaves no doubt: treaty obligations cannot be undermined by administrative discretion. The PAP Protocol is not an internal guideline; it is Union law.”

The Way Forward

At the close of deliberations, the Bureau resolved to:

1. Finalize and transmit a comprehensive position paper to the AU Commission reaffirming PAP’s entitlement under Article 10 of the Protocol;
2. Cite Rule 78.1 of the SRR as legal evidence that Staff Rules cannot override Treaties or Executive Council Decisions;
3. Request the Permanent Representatives Committee (PRC) and Executive Council to reaffirm compliance oversight at their next session; and
4. Reserve the right to seek judicial intervention should the Commission fail to comply within a reasonable timeframe.

The Clerk of Parliament was instructed to record attendance and note the consistency of delegations such as Kenya, Chad, Rwanda, and Zimbabwe, whose commitment exemplified Member States’ political will to sustain the Parliament’s work.

A Constitutional Moment for the Continental Legislature

The allowances debate transcended financial grievance to become a constitutional assertion of the Parliament’s independence and dignity as a treaty-based organ of the African Union.

Hon. Lucia Dos Passos encapsulated the spirit of the moment:

“This is about more than allowances. It is about the dignity of this institution and the sanctity of the legal order that created it. If we cannot assert the supremacy of the PAP Protocol, then we deny the very foundation of the African Union.”

Conclusion

By invoking Rule 78.1 of the AU Staff Rules and Regulations, the Parliament decisively reconciled the OLC’s objections within the Union’s legal hierarchy. The rule’s own language affirms that Staff Rules must be interpreted in harmony with Treaties, Protocols, and Executive Council Decisions.

The opening day’s debate therefore reaffirmed not only Members’ entitlement to allowances under Article 10 of the PAP Protocol but also the primacy of treaty law and judicial accountability within the AU system.

If tested before a competent AU tribunal, Members vowed, the Parliament will pursue both affirmation of its institutional autonomy and retroactive payment of allowances from 2019, a legal milestone that could reshape inter-organ relations within the African Union.