Why Scope of Mandate Is Central to Assessing Institutional
Bad Faith
By Olu Ibekwe
In institutional law, good faith is inseparable from
fidelity to mandate. An advisory organ acts in good faith only where it adheres
strictly to the scope defined by the policy organ that conferred authority.
When an organ knowingly exceeds a narrow and explicit mandate, bad faith may be
inferred objectively, without proof of motive. It is against this standard that
the conduct of the Office of the Legal Counsel (OLC) following Executive
Council Decision EX.CL/Dec.1242(XLIV)
must be assessed.
The Limited and Corrective Nature of EX.CL/Dec.1242(XLIV)
Executive Council
Decision EX.CL/Dec.1242(XLIV)
directed that the suspended Rules of Procedure of the Pan-African Parliament
“should be reconsidered by the PAP Plenary, taking into consideration the
inconsistencies outlined in the Legal Opinion issued by the Office of the Legal
Counsel.” The mandate was explicit, corrective, and narrowly framed. It did not
authorize a wholesale review of the Rules, reliance on extraneous materials, or
any unilateral redefinition of scope by the OLC. The Executive Council neither
mandated nor implied a comprehensive redrafting exercise.
Election Timing and the Limits of Advisory
Authority
It must be emphasized
that the determination of when elections to the Bureau of the Pan-African
Parliament shall be held does not fall within the mandate of the OLC. The PAP
Protocol provides a complete and self-contained legal framework governing
Bureau tenure, rotation, vacancies, and the conduct of elections. Article 12(3) ties the tenure of the
President and Vice-Presidents to the duration of their mandate in their
respective national parliaments; Article
12(4) recognizes the rotation of the offices among the five regions of
Africa; Article 12(8) stipulates
the conditions under which the offices of the President and Vice-Presidents
become vacant; and Article 12(10)
expressly requires that any vacancy “shall be filled at the sitting of the
Parliament immediately following the occurrence of the vacancy.” Read together,
these provisions vest the Pan-African Parliament with the authority and
corresponding responsibility to manage its own electoral processes in
accordance with the Protocol.
In June 2022 and March 2024, the Executive
Council directed the Office of the Legal Counsel to issue modalities solely for the conduct of those specific elections,
and only because no Bureau was in place
at the time to manage the electoral process. That instruction
was exceptional,
situational, and time-bound; it did not confer a standing or
general mandate on the OLC to determine election calendars, prescribe the
timing of elections, or dictate the modalities through which future elections
are to be conducted once a Bureau has been duly constituted. The PAP Protocol
establishes a complete and self-contained framework in this regard. Article 12(3) ties the tenure
of Bureau officers to the mandate of their respective national parliaments; Article 12(4) provides
for the rotation of offices among the Regions; Article 12(8) governs the
circumstances under which the offices of the President or Vice-Presidents become
vacant; and Article 12(10)
expressly provides that “any vacancy shall be
filled at the sitting of the Parliament immediately following the occurrence of
the vacancy.” Read together with Article
12(5), which vests responsibility for the management and administration
of the Parliament and its organs in the officers under the control and
direction of the President, these provisions confirm that the authority to
declare vacancies and to schedule and conduct elections rests with the Plenary of the Pan-African Parliament,
acting in accordance with the Protocol, and not with any administrative or
advisory organ.
Accordingly, attempt by the OLC to assert continuing
authority over the scheduling, timing, or mode of PAP Bureau elections outside
the narrow circumstances expressly authorized by the Executive Council constitutes
a clear overreach of its advisory mandate and an encroachment upon the
institutional autonomy of a treaty-established organ of the Union.
Reliance on Extraneous Materials
Instead of confining the
process to the specific inconsistencies it had identified, the OLC asserted
that a so-called “Technical Team” agreed to conduct a comprehensive review of
all provisions of the suspended Rules and to rely on a prior internal
gap-analysis report prepared during an earlier revision exercise. This reliance
is probative of institutional bad faith. The Executive Council did not
authorize recourse to internal documents previously considered and rejected by
the PAP Plenary, nor did it empower the OLC to revive rejected positions
through administrative means. By expanding the scope of review beyond the
inconsistencies identified in its own Legal Opinion, the OLC effectively
rewrote the Executive Council’s mandate, a power it does not possess.
Post-Compliance Insistence: The Most Damaging Factor
Even after PAP complied
with the Executive Council’s directive through its November 2024 Plenary
resolution addressing all inconsistencies identified in the October 2023 Legal
Opinion, and after that compliance was acknowledged by the PRC and taken note
of by the Executive Council, the OLC continued to insist that PAP’s compliance
was inadequate because it did not adopt the full range of amendments proposed
by the OLC. At this point, the issue ceased to be interpretive. Persisting
after compliance has been formally acknowledged by the competent policy organs
is one of the clearest indicators of institutional bad faith or abuse of
advisory function.
An Institutional Posture That Is Condescending in Effect
This pattern of conduct
also reveals an institutional posture that is condescending in effect toward
the Pan-African Parliament. PAP is the third highest organ of the African
Union, established by treaty, with its own constitutional mandate and
deliberative authority. Yet the OLC’s approach of treating PAP’s Plenary
decisions as provisional, subordinating them to continuing administrative
discretion, and insisting on outcomes beyond those required by the Executive
Council, implicitly positions PAP as administratively subordinate rather than
constitutionally autonomous within its mandate. In institutional terms, such a
posture diminishes the dignity and authority of a co-equal organ of the Union
and is incompatible with a good-faith advisory relationship.
Why This Goes Beyond Procedural Error
Taken cumulatively, the
conduct reflects disregard for the express limits of a policy-organ mandate,
unilateral expansion of scope, reliance on extraneous and previously rejected
materials, substitution of advisory preference for policy-organ instruction,
and refusal to accept institutional closure even after acknowledged compliance.
This combination goes beyond procedural error or interpretive zeal. It
satisfies the objective threshold for institutional bad faith and undermines
the balance of authority established by the Union’s legal framework.
The Constitutional Lens: Articles 3(g) and 4(m) of
the Constitutive Act
Article 3(g) of the Constitutive Act
of the African Union commits the
Union to the promotion of democratic principles and institutions, popular
participation, and good governance. These objectives presuppose that the
Union’s organs, particularly its parliamentary organ operate within a framework
of legality, predictability, and mutual institutional respect. Democratic
institutions cannot function effectively where leadership tenure, electoral
rules, and internal governance arrangements are repeatedly unsettled through
administrative reinterpretation after policy organs have acted.
Article 4(m) further enshrines respect for democratic
principles, the rule of law, and good governance as foundational principles of
the Union. The rule of law, in this context, requires not only adherence to
treaty provisions, but also respect for institutional hierarchy, finality of
decisions, and the limits of mandate. Advisory organs are required to act
within the authority conferred upon them and to give effect to the decisions of
the Assembly and the Executive Council, not to dilute or re-litigate them
through practice.
Institutional Dignity
Read together, Articles
3(g) and 4(m) also speak to institutional
dignity as an implicit constitutional value. The Pan-African
Parliament is a treaty-established organ of the Union, not an administrative
appendage of the Commission. An approach that treats PAP’s Plenary decisions as
provisional, subjects them to continuing administrative validation, or insists
on outcomes beyond those mandated by the policy organs risks conveying a
condescending institutional posture in effect. Such a posture undermines the
dignity, autonomy, and democratic character of a co-equal organ of the Union.
Where advisory conduct
subordinates a parliamentary organ’s lawful decisions to ongoing administrative
discretion, it weakens popular participation, erodes confidence in continental
democratic institutions, and blurs the separation between advisory and
decision-making authority. This is incompatible with the good governance ethos
envisaged by the Constitutive Act.
Ultimately, fidelity to
Articles 3(g) and 4(m) requires more than formal compliance with legal texts.
It requires that each organ of the Union respect the constitutional space of
the others, that advisory authority remain advisory, and that once the
competent policy organs have acted, their decisions be implemented with
finality. Protecting the institutional dignity of PAP is therefore not a matter
of sentiment, but a constitutional necessity for sustaining democratic
governance and the rule of law within the African Union.
Conclusion
The issue presented is not whether fixed tenure is, in
the abstract, a desirable institutional reform. It is whether the African Union
governs itself through law, institutional hierarchy, and constitutional
discipline, or through administrative oscillation that unsettles settled
outcomes. By issuing a legal opinion that nullified a tenure regime, inducing
binding action by the Executive Council on that basis, and subsequently seeking
to revive the same regime without renewed authorization, the Office of the
Legal Counsel moved beyond advisory interpretation into conduct incompatible
with the good-faith exercise of institutional authority.
This conduct also
implicates institutional dignity
as a constitutional value of the Union. The Pan-African Parliament is a
treaty-established organ, vested with democratic legitimacy and deliberative
autonomy. Treating its Plenary decisions as provisional, subordinating them to
continuing administrative discretion, or insisting on outcomes beyond those
mandated by the policy organs diminishes the standing of a co-equal organ and
erodes the balance carefully constructed by the Union’s legal framework.
It must further be
underscored that the determination of the timing, calendar, or modalities of
PAP Bureau elections does not fall within the standing mandate of the Office of
the Legal Counsel. The PAP Protocol provides a complete legal framework
governing tenure, rotation, vacancies, and the filling of such vacancies, and
vests the Parliament itself with authority to manage its electoral processes in
accordance with Articles 12(3), 12(4), 12(8), and 12(10). While the Executive
Council exceptionally directed the OLC to issue modalities for the conduct of
elections in June 2022 and March 2024, this was solely because no
Bureau was in place at those moments to manage the process. Those instructions
were situational and time-bound and cannot be construed as conferring any
continuing or general authority on the OLC to determine future election timelines
or modalities once a Bureau has been duly constituted.
Respect for Articles 3(g) and 4(m) of the Constitutive Act
requires that democratic institutions be protected not only from overt
illegality, but also from practices that weaken their authority through mandate
overreach and condescension in effect. Good governance demands legality,
predictability, finality of decisions, and mutual respect among the organs of
the Union. Advisory authority must remain advisory; policy-organ decisions must
remain determinative; and parliamentary autonomy must be preserved as an
expression of popular participation at the continental level.
Ultimately, safeguarding
the institutional dignity of the Pan-African Parliament is inseparable from
safeguarding the rule of law within the African Union itself. Where advisory
conduct respects mandate, accepts institutional closure, and defers to the
supremacy of Assembly and Executive Council decisions, the Union’s
constitutional order is strengthened. Where it does not, democratic governance
is weakened. The choice between these paths will determine not only the
resolution of the present dispute, but the credibility of the Union’s
commitment to law-based governance going forward.
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