When Legal Advice Undermines The Rule of Law

Part 1: From Legal Opinion to Institutional Contradiction

By Olu Ibekwe

A legal opinion intended to restore compliance with the Pan-African Parliament Protocol triggered sweeping institutional action by the African Union’s policy organs. But when the same advisory authority later sought to revive the very rules it had declared unlawful, a deeper question emerged: where does legitimate legal interpretation end, and institutional inconsistency begin?

In any rules-based institution, legal advice plays a stabilizing role. It is meant to clarify obligations, reduce uncertainty, and guide political organs toward decisions that respect established norms. Within the African Union, this function is entrusted to the Office of the Legal Counsel (OLC), whose opinions are advisory but influential, often shaping decisions of the Executive Council and the Assembly.

However, when legal advice becomes internally inconsistent, self-contradictory, or detached from the consequences it has already triggered, it ceases to stabilize the system. Instead, it becomes a source of institutional instability. This article examines why the OLC’s conduct in relation to the Pan-African Parliament (PAP) Bureau tenure question goes beyond mere legal disagreement and amounts to a manifest inconsistency incompatible with the good-faith exercise of an advisory mandate.

The Institutional Record

The Pan-African Parliament (PAP) adopted amendments to its Rules of Procedure on 4 November 2022, which included Rule 16(14). Among other provisions, the amended rule introduced a fixed, non-renewable three-year term for the President and Vice-Presidents of PAP. This provision was subsequently challenged on the ground that it was inconsistent with Articles 5(3) and 12(3) of the PAP Protocol, which link the tenure of Members of the Pan-African Parliament and the term of office of Bureau members (President and Vice-Presidents) to the duration of their respective mandates in their national parliaments.

In October 2023, following a legal review conducted by the OLC, the Chairperson of the African Union Commission suspended the amended Rules of Procedure, citing inconsistencies with the PAP Protocol. That review was undertaken pursuant to Assembly/AU/Dec.757(XXXIII) (February 2020), by which the Assembly directed the OLC to review the legal instruments and rules of AU organs, including PAP, for inconsistencies with other AU governing instruments and to report back. This mandate was reiterated by the Executive Council in EX.CL/Dec.1128(XXXIX) (October 2021).

Acting on the OLC’s Legal Opinion BC/OLC/23.18/13795.23, the Executive Council, in Decision EX.CL/Dec.1242(XLIV) (February 2024), upheld the suspension of the amendments and directed the PAP Plenary to reconsider them, taking into consideration the inconsistencies outlined in the Legal Opinion issued by the OLC. The Executive Council also decided that “any decision made based on the suspended revised Rules of Procedure of the PAP dated 4 November 2022, should be considered null and void.”

 In that Opinion, the OLC stated that “the PAP Protocol is the overarching normative framework guiding both the legal and operational mandate of PAP and thus, any contradicting rule should, on the basis of general principles of law, be deemed null and void.” The OLC further observed that “the imposition of fixed, non-renewable terms for Bureau membership in the Amended Rules not only deviates from the Protocol’s explicit guidelines but also exceeds the conventional jurisdiction of procedural rules. Procedural rules should operationalize the Protocol, not amend it.”

The OLC further made it clear in the same Opinion that Rule 16(10) of the 2011 amendment was inconsistent with Article 12(3) of the PAP Protocol, noting that the Protocol mandates that the tenure of the Bureau be tied to the term of the member’s national parliament rather than to a fixed term imposed by the Rules of Procedure. On the basis of that advice, the Executive Council nullified the three-year fixed-term tenure regime, precipitating a series of institutional actions, including the suspension of the amended Rules, declaration of vacancies and the conduct of elections in March 2024.

Despite this clear institutional record, the OLC has since sought to return to the same fixed three-year tenure model that the Executive Council nullified on the basis of the OLC’s own advisory opinion. It is this reversal, undertaken without any fresh mandate from the Executive Council or the Assembly that frames the inquiry into whether the OLC’s conduct amounts to a manifest inconsistency incompatible with the good-faith exercise of an advisory mandate.

Beyond Legal Disagreement: When Advice Turns Against Its Own Consequences

Disagreement in legal interpretation is neither unusual nor improper within the African Union. Divergent readings of treaty provisions are routinely resolved through policy-organ deliberation. What distinguishes the present case is not disagreement between institutions, but contradiction within the same advisory authority across a continuous institutional process.

The OLC did not merely revise its thinking. It issued a legal opinion, induced binding action by the Executive Council on the basis of that opinion, and then proceeded without renewed authority to reintroduce the very legal position that had been declared inconsistent with the governing Protocol. This is not reinterpretation; it is a repudiation of the legal consequences of the OLC’s own advice.

The Objectively Verifiable Institutional Sequence

The institutional sequence is uncontested:

1.     October 2023 – OLC issues Legal Opinion BC/OLC/23.18/13795.23, finding the three-year fixed tenure inconsistent with the PAP Protocol.

2.     February 2024 – Executive Council adopts EX.CL/Dec.1242(XLIV), nullifying the tenure regime and directing PAP to realign its Rules.

3.     March 2024 – Elections are conducted pursuant to that Decision.

4.     Post-election – OLC reintroduces the nullified tenure through election modalities and draft Rules of Procedure.

No subsequent Assembly or Executive Council decision reversed the legal effect of EX.CL/Dec.1242(XLIV).