The Supremacy Clause: Safeguarding the Legal Integrity of the Pan-African Parliament

By Olu IBEKWE

When the rules, customs, and practices of an institution drift away from its founding treaty, legitimacy does not simply waver: it begins to erode from within. The integrity of any intergovernmental body rests on its fidelity to the legal instrument that created it. For the Pan-African Parliament (PAP), whose authority derives directly from the Protocol to the Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (PAP Protocol), alignment with that Protocol is not optional: it is existential.

In this light, the reported inclusion by PAP’s Committee on Rules, Privileges and Discipline (Rules Committee) of a supremacy clause in the draft revised Rules of Procedure is far more than a technical amendment: it is a constitutional reaffirmation of PAP’s legal identity within the African Union (AU) system. By inserting such a clear statement that the Protocol stands above all internal rules, customs, or interpretations, the Committee has re-anchored the Parliament to its treaty foundation and drawn a decisive boundary against creeping administrative or political improvisations that risk undermining its credibility and autonomy.

The Power of a Simple Clause

That seemingly simple supremacy clause performs profound constitutional work. It affirms that the PAP Protocol, ratified by Member States, occupies the highest step in the Parliament’s internal legal hierarchy, a position that no internal tradition, ad hoc rule, administrative convenience, or even advisory opinion can supersede.

In adopting it, the Rules Committee has done more than tidy up legal language; it has restored coherence to PAP’s governance framework by explicitly aligning the Parliament’s internal order with the broader legal architecture of the African Union and the jurisprudence of its policy and judicial organs.

Mandate from AU Policy Organs to Ensure Consistency

The inclusion of the supremacy clause is not an isolated initiative of the Rules Committee: it is a direct response to the expressed will of the African Union’s policy organs. Over the past decade, both the Assembly of Heads of State and Government and the Executive Council have repeatedly emphasized the need for institutional coherence and the harmonization of the internal rules of AU organs with the Union’s governing legal instruments.

In February 2020, the Assembly of the African Union directed the Office of the Legal Counsel (OLC) to review the legal instruments and rules of all AU organs, including the Pan-African Parliament, for inconsistencies with the Constitutive Act and other Union instruments, and to report back. This directive was reaffirmed by the Executive Council in an October 2021 Decision underlining the urgency of ensuring that AU organs operate within a unified legal framework.

In January 2009, the Executive Council requested the PAP to amend its Rules of Procedure to conform with the legal instruments of the African Union. This was followed by a decision in June 2017 calling on PAP to apply the values, rules, and regulations of the African Union in the management of all aspects of its activities, with specific reference to the rotation of the Bureau and the Presidency. Subsequently, in June 2018, the Executive Council adopted another decision requesting PAP to comply with the principle of geographical rotation among the five regions of Africa in all future elections of the Bureau as mandated by the Protocol.

Taken together, these decisions establish a clear chain of authority: the Assembly and the Executive Council have mandated that PAP’s internal rules must conform to the Protocol and other AU legal instruments. By embedding the supremacy clause, the Rules Committee has not only complied with this institutional mandate but also fortified PAP’s legal discipline, ensuring that its future operations rest on the unambiguous supremacy of treaty law over institutional habit or political convenience.

Jurisprudential Affirmation by the African Court on Human and Peoples’ Rights

The inclusion of the supremacy clause also finds strong support in the jurisprudence of the African Court on Human and Peoples’ Rights, which has consistently upheld the primacy of African Union treaties and protocols over conflicting domestic laws, practices, or institutional customs. In Actions pour la Protection des Droits de l’Homme (APDH) v. Côte d’Ivoire (2016), the Court held that the composition and operation of Côte d’Ivoire’s electoral body violated both the African Charter on Democracy, Elections and Governance and the African Charter on Human and Peoples’ Rights, affirming that national practice cannot stand against the obligations imposed by AU instruments.

Similarly, in Suy Bi Gohoré Emile and Others v. Côte d’Ivoire (2020), the Court reaffirmed that States are under a binding obligation to bring their laws and institutional practices into conformity with AU treaties, emphasizing that subsequent domestic legislation cannot sanitize or perpetuate violations already declared inconsistent with Union law. The Court’s reasoning underscores a core principle: once a Member State has ratified an AU instrument, its provisions acquire binding and superior status, and non-compliance cannot be justified by reference to domestic or institutional tradition.

This line of reasoning extends beyond state action to the conduct of AU organs themselves. The Court’s approach establishes that internal rules, customs, and administrative practices within AU institutions must remain subordinate to treaty law, and that deviation from such legal norms undermines both the integrity and legitimacy of the institution concerned. This jurisprudence validates the Rules Committee’s decision to anchor its internal order in the supremacy of the Protocol, ensuring that PAP remains a model of treaty compliance within the African Union system.

Clarifying and Restricting the Reach of the Office of Legal Counsel

One of the most recent sources of institutional tension within the Pan-African Parliament has been the scope and influence of the Office of the Legal Counsel (OLC). As the advisory legal organ of the African Union, the legal counsel plays an important role in guiding interpretation and promoting uniformity across the AU system. However, in the case of PAP, advisory guidance has too often been treated as binding authority, blurring the line between interpretation and substitution of the law.

The inclusion of the supremacy clause therefore serves as a constitutional corrective. It reaffirms that while OLC opinions may assist in clarifying legal ambiguities, they cannot override, reinterpret, or displace the express provisions of the PAP Protocol, which is a treaty-level instrument ratified by AU Member States.

In recent years, OLC’s conflicting interpretations, particularly on matters relating to the tenure of Bureau members and the principle of rotation, have sometimes ventured beyond the plain text of Articles 12.3 and 12.4 of the Protocol. This has resulted in a widening gap between the binding obligations of the Protocol and the policy preferences reflected in OLC opinions. The Rules Committee’s decision to insert a supremacy clause is therefore a deliberate act of institutional self-preservation: it ensures that PAP’s legal foundation remains anchored in the Protocol rather than in fluctuating interpretations.

The new clause sends a clear institutional message:

·       Advisory opinions are interpretive, not constitutive. They may illuminate the meaning of the law, but they cannot make or unmake it.

·       Customs and precedents must remain subordinate. Where the Protocol speaks clearly, there is no room for practice to transform into an alternative rule.

·       Institutional autonomy is safeguarded by legal fidelity. The Parliament must exercise its powers within the four corners of the Protocol, not at the pleasure of external administrative interpretation.

By restoring the Protocol’s primacy, the Rules Committee has strengthened PAP’s institutional sovereignty within the African Union. It has also reaffirmed a vital constitutional principle: that advisory opinions, however well intentioned, cannot enjoy supremacy over a ratified treaty. In this sense, the supremacy clause acts as both a shield against interpretive overreach and a compass guiding the Parliament back to its lawful path.