How AU Legal Opinions Are Triggering Institutional Crises: Lessons from PAP and AUDA-NEPAD

By Olu IBEKWE

In a complex political organization such as the African Union (AU), legal advice is never merely technical. A formal opinion issued by the Office of the Legal Counsel (OLC) does not remain confined to legal analysis or internal correspondence; it operates as a governance instrument with immediate institutional consequences. Once issued, such opinions shape the sequencing of decisions, recalibrate institutional authority, determine leadership continuity, and influence how policy organs interpret the boundaries of their discretion. In a system where law, policy, and political judgment are deeply intertwined, the framing of legal advice is therefore as consequential as its substantive content. When legal opinions are expressed too narrowly or too rigidly, particularly in areas marked by ambiguity or competing institutional mandates, they risk hardening interpretive uncertainty into procedural confrontation, transforming legal guidance from a stabilizing reference point into a catalyst for institutional friction.

Two recent governance crises now firmly establish this concern: the Pan-African Parliament (PAP) tenure and rules dispute, triggered by the OLC’s October 2023 opinion, and the AUDA-NEPAD CEO renewal controversy following the OLC’s November 2025 opinion. With the subsequent January 2025 OLC opinion on PAP now on record, it is no longer credible to treat these episodes as isolated blunders. Read together, they reveal a patterned deficiency in OLC advisory approach: one rooted in binary legalism applied within a polycentric political system.

Why the OLC Should Not Have Confined Itself to Binary Answers

At the heart of both controversies lies the same methodological choice: the reduction of legally ambiguous, politically sensitive questions into forced binary outcomes.

In the AUDA-NEPAD case, the OLC framed the issue of CEO renewal as a stark choice: either the end of the first mandate constituted a vacancy requiring re-advertisement and competition, or any renewal without competition would violate the Statute. No intermediate implementation pathway was articulated.

In the PAP case, the October 2023 OLC opinion framed amendments to the Rules of Procedure as either fully compliant with the Protocol or null and void—leading directly to declarations of vacancies within the Bureau and to operational paralysis.

Binary framing may be attractive in adjudicative settings, where courts are required to resolve disputes by choosing definitively between opposing legal positions. The African Union, however, is not a court. It is a polycentric governance system, in which law, policy, and institutional practice must be aligned rather than opposed. In such systems, legal advice should define minimum legal thresholds, while also identifying lawful pathways that allow political organs to comply without triggering institutional rupture points.

Crucially, once a mandate is described as “renewable,” the central legal question is no longer whether renewal is possible, but what process: competitive, evaluative, or political, the governing instrument requires or permits for that renewal to lawfully occur. By collapsing this procedural inquiry into a binary outcome, legal analysis bypasses the very mechanism through which legality and institutional continuity are ordinarily reconciled in public governance systems.

The Structural Error: Binary Legalism in a Polycentric System

The AU’s legal order is layered. Constitutive instruments coexist with Assembly and Executive Council decisions, long-standing institutional practice, and evolving governance principles such as geographical rotation. Legal coherence in such a system is maintained not by absolutism, but by managed alignment.

The January 2025 OLC opinion itself acknowledges that the October 2023 opinion was necessarily limited, drafted under urgency and confined to identifying “the most glaring and apparent inconsistencies” between PAP’s Rules and the Protocol. Yet, despite this acknowledged limitation, the October 2023 opinion was treated as dispositive, triggering suspension of the Rules, declaration of vacancies, and the effective immobilization of PAP’s Bureau.

Here, the structural error is laid bare: partial legal analysis presented as requiring total institutional reconfiguration. Binary legalism collapses the distinction between identifying a legal problem and prescribing its most disruptive solution, converting interpretive uncertainty into institutional rupture points rather than manageable compliance pathways.

A process-centred approach: identifying permissible renewal or transition mechanisms and their respective risk profiles, would have preserved legality while avoiding institutional paralysis.

Direct Parallel with the October 2023 PAP Opinion: Pattern Evidence

The PAP episode offers the clearest demonstration of this pattern.

The October 2023 OLC opinion identified genuine inconsistencies in the PAP Rules, particularly the imposition of a fixed, non-renewable three-year term for Bureau members. However, it went further by declaring existing Bureau positions vacant and concluding that the Bureau lacked quorum and decision-making authority.

The institutional consequences were immediate and severe: leadership paralysis, operational uncertainty, and months of constrained decision-making across the Parliament’s committees and Secretariat.

In the January 2025 OLC opinion, the OLC effectively re-engineered its own position. While maintaining that the October 2023 opinion was correct within its limited scope, the January 2025 opinion advanced a fundamentally different conclusion on tenure: that fixed three-year terms must be retained, even if they sit uneasily with Article 12(3) of the Protocol, because they are necessary to operationalize geographical rotation and to give effect to binding Policy Organ decisions.

This reversal exposes a central institutional fault line. Binary advice proved unsustainable in practice and had to be recalibrated after generating governance stress, precisely because the original analysis focused on outcome rather than process.

Why the Same Error Was Repeated in AUDA-NEPAD

The AUDA-NEPAD controversy follows the same trajectory.

The OLC acknowledged that the AUDA-NEPAD Statute is silent on renewal procedure, requiring contextual interpretation. Yet it again converged on a single rigid outcome: expiry equals vacancy; vacancy requires re-advertisement. No fast-tracked competition, no performance-weighted renewal mechanism, and no transitional option were presented.

Rather than identifying the range of lawful renewal processes available under the Statute and assessing their relative institutional risk, the analysis effectively treated the absence of automatic renewal as proof that only one procedural path was legally permissible. Predictably, institutional resistance followed. The AUDA-NEPAD Steering Committee rejected the framing, asserted renewal discretion based on performance, and called for the recruitment process to be halted.

With the PAP experience now documented across two OLC opinions, this repetition cannot plausibly be dismissed as oversight. It reflects a methodological habit: where ambiguity exists, legal analysis privileges rigid outcomes over procedurally legitimate options, leaving political organs to absorb the resulting institutional rupture points.

Why This Matters Institutionally

This pattern carries serious implications for AU governance, particularly for institutions required to maintain continuity of programmes, staff morale, and external partnerships while legal interpretations are contested.

First, it undermines legal certainty. When legal opinions trigger institutional disruption and are later re-engineered, stakeholders learn that today’s legal absolutism may become tomorrow’s “outdated” position.

Second, it weakens institutional trust. Political organs begin to view legal advice not as an enabling framework, but as a constraint to be resisted or negotiated along emerging institutional fault lines.

Third, it escalates routine governance questions into political standoffs, increasing reputational risk for the Union and diverting attention from substantive mandates.

Most critically, it blurs the boundary between legal interpretation and institutional command, drawing the OLC into operational decision-making rather than principled advisory guidance.

The Correct Standard Going Forward

The January 2025 opinion inadvertently points toward the solution it does not fully embrace.

A sound advisory standard in a polycentric system requires the OLC to:

1.     Define the legal floor: what is mandatory and non-negotiable.

2.     Acknowledge interpretive margins: where the law admits more than one coherent reading.

3.     Present lawful implementation options, ranked by legal and institutional risk.

4.     Present implementation options, ranked by legal and institutional risk.

5.     Emphasize that the ultimate authority to choose among lawful options lies with policy organs, not the OLC.

Had such an approach been adopted, interpretive ambiguity would not have been converted into institutional rupture points, but managed through graduated, lawful transitions.

Bottom Line

Read together, the October 2023, January 2025, and November 2025 OLC opinions lead to an unavoidable conclusion:

The AUDA-NEPAD and PAP controversies are not isolated episodes. They are manifestations of a patterned deficiency in the OLC’s advisory methodology, one that repeatedly collapses legal ambiguity into rigid binaries, overlooks the centrality of lawful process, transforms uncertainty into institutional rupture points, and later requires correction when those consequences prove unsustainable.

The challenge for the African Union is not to weaken legal oversight, but to modernize it, so that legal advice stabilizes governance rather than constraining it through avoidable institutional fault lines.

Key Takeaways

1.      Binary legal advice in a polycentric system is destabilizing.
Reducing ambiguous governance questions to “either/or” outcomes creates institutional rupture points rather than compliance pathways.

2.      The PAP and AUDA-NEPAD cases reveal a pattern, not an anomaly.
Successive OLC opinions show recurring rigidity followed by later recalibration.

3.      Legal certainty is weakened when opinions trigger disruption and are later re-engineered.
This erodes trust in legal advice and invites institutional resistance.

4.      The OLC’s role should be enabling, not directive.
Legal advice should define the legal floor and present lawful options, not prescribe disruptive outcomes.

5.      Modernizing advisory standards is essential for AU governance stability.
The solution lies in option-based, risk-graded legal guidance, not in weakening the rule of law.