Executive Council Opens Door for PAP Input into Draft AU Legal Instruments

Executive Council decision EX.CL/Dec.1362(XLIX) gives the Pan-African Parliament an opportunity to scrutinize selected draft legal instruments before adoption.

The Pan-African Parliament has been presented with a significant opportunity to strengthen its place in the African Union's law-making architecture following a decision of the Executive Council calling for structured advisory input into selected draft AU legal instruments before their adoption.

In Decision EX.CL/Dec.1362(XLIX), adopted during its 49th Ordinary Session in Addis Ababa on 28 and 29 July 2026, the Executive Council requested the African Union Commission to engage the Pan-African Parliament (PAP), the Economic, Social and Cultural Council (ECOSOCC) and the African Union Commission on International Law (AUCIL) on possible modalities for providing such input.

The engagement is to take place before selected draft instruments are submitted to the competent policy organs for adoption and must follow established AU procedures. The decision also makes clear that the proposed advisory mechanism will not prejudice the respective competencies of the Assembly, Executive Council, relevant Specialized Technical Committees, the Specialized Technical Committee on Justice and Legal Affairs, the Commission or Member States.

These qualifications are important. The decision does not confer legislative power on PAP, make it a co-legislator or give it a veto over proposed AU instruments. Nor does it bring the 2014 Malabo Protocol into force by another route. What it does is formally recognize that PAP can make a useful contribution before the content of an AU legal instrument has become settled.

That is a meaningful institutional development. It creates the possibility of moving PAP from the margins of treaty development to an identifiable point within the preparatory process, where its views may influence the form and substance of a proposed instrument.

Introducing a parliamentary perspective

The development of AU treaties, conventions, protocols, model laws and other legal instruments has traditionally been dominated by Member State experts, specialized technical committees, AU Commission departments, ministers, diplomats and other AU organs and agencies. These institutions provide indispensable governmental, technical and legal expertise, and the new decision preserves their established responsibilities.

However, an instrument intended to operate across 55 Member States cannot be judged solely by the quality of its legal drafting or the consensus it commands among government representatives. It must also be examined from the perspective of the national institutions that may eventually be asked to ratify, domesticate, fund, oversee and implement it.

PAP is well placed to contribute that parliamentary perspective. Its members come from national parliaments and operate at the intersection of continental commitments and domestic political realities. They can ask questions that may not receive sufficient attention during a predominantly intergovernmental negotiation: Will national parliaments accept the obligations being proposed? Will implementation require constitutional amendments or new legislation? Are the financial obligations realistic? Do the enforcement and reporting mechanisms respect national legal systems? How will the instrument affect citizens, political institutions and public accountability?

By raising such questions before adoption, PAP can help ensure that AU legal instruments are not merely technically sound but also politically credible, legislatively workable and capable of implementation.

Strengthening political legitimacy

PAP was established to provide a common platform through which African peoples and their grassroots organizations could become more involved in deliberations and decision-making on the continent's challenges. Its participation in the preparation of AU legal instruments would therefore add a representative dimension to a process that has largely remained executive-driven.

This should not be overstated. PAP members are currently elected or designated by national parliaments rather than directly elected by African citizens. Nevertheless, they represent different countries, political traditions and, under the PAP Protocol, the diversity of political opinions within their national parliaments. Their scrutiny can expose proposed instruments to a broader political conversation than one confined to government officials and technical experts.

That wider consideration can strengthen political legitimacy in at least three ways.

First, PAP can examine whether a draft responds to the actual concerns of African citizens rather than only to institutional or diplomatic priorities. Secondly, its debates can make the development of continental law more visible and understandable to the public. Thirdly, PAP members can take information about emerging instruments back to their national parliaments and constituencies, building awareness and ownership before an instrument reaches the ratification stage.

The participation of ECOSOCC and AUCIL complements this function. ECOSOCC can channel civil-society experience and public perspectives, while AUCIL can provide specialized expertise in international law, codification and the progressive development of African Union law. Together, PAP, ECOSOCC and AUCIL could introduce political representation, civic participation and independent legal expertise into the preparatory process.

Improving parliamentary acceptability

One of the persistent challenges confronting the African Union is the gap between the adoption of legal instruments at the continental level and their ratification by Member States. Some instruments wait years to obtain the number of ratifications required for entry into force. Others enter into force internationally but are not adequately domesticated or implemented at national level.

National parliaments are central to resolving this problem. In many Member States, parliamentary approval is required for ratification or domestication. Even where the executive possesses extensive treaty-making authority, implementation may still require legislation, budgetary appropriations and parliamentary oversight.

PAP's early participation could help identify provisions likely to encounter parliamentary resistance. Members could test the political acceptability of obligations, draw attention to conflicts with existing national laws and recommend transitional arrangements where immediate compliance would be difficult.

Such scrutiny should not be treated as an attempt to dilute continental standards. On the contrary, a treaty that is ambitious but incapable of attracting ratification or implementation may achieve less than one whose obligations are clearly drafted, properly sequenced and supported by realistic institutional arrangements.

Early parliamentary involvement can also create informed advocates for an instrument. PAP members who participated in examining a draft would be better equipped to explain its purpose and provisions to their national legislatures. This could establish a valuable link between continental law-making and domestic ratification, replacing the present tendency for national parliaments to encounter some AU instruments only after adoption.

Making legislative implementation more realistic

The real test of an AU legal instrument is not its adoption ceremony but whether its provisions produce changes in laws, institutions and public conduct across Member States.

PAP can contribute practical knowledge about legislative implementation. It can identify which provisions would require new national laws, amendments to existing statutes, creation of regulatory bodies, additional public expenditure or new reporting and oversight arrangements. It can also assess whether proposed deadlines are realistic and whether national parliaments have been assigned a meaningful role in monitoring compliance.

This is particularly relevant to instruments affecting human rights, democratic governance, elections, trade, environmental protection, public health, peace and security, movement of persons and the establishment of continental institutions. Obligations in these areas often require extensive domestic legislation and sustained parliamentary oversight.

PAP's five regional caucuses and permanent committees could also compare legal and institutional experiences across the continent. Such comparative scrutiny would help expose provisions that may work easily in one legal system but create difficulties in another. The objective should be to strengthen common continental standards while ensuring that the route to national implementation is properly understood.

An opportunity grounded in PAP's existing mandate

The decision is consistent with Article 11 of the Protocol establishing PAP. That provision authorizes the Parliament to examine, discuss or express an opinion on matters on its own initiative or at the request of the Assembly or other policy organs. It also mandates PAP to work towards the harmonization or coordination of the laws of Member States and to make recommendations concerning African integration.

Accordingly, structured examination of draft AU instruments would not manufacture a new competence outside the Protocol. It would provide an operational pathway through which PAP could exercise its existing consultative and advisory powers more effectively.

This distinction is important in the continuing debate about PAP's legislative evolution. The Malabo Protocol envisages a stronger legislative role for the Parliament but has not secured the ratifications required to enter into force. EX.CL/Dec.1362(XLIX) cannot substitute for that ratification process. It can, however, enable PAP to develop the expertise, procedures and institutional record required of a Parliament seeking a more consequential role in continental governance.

It represents an opportunity for functional development within the existing legal framework: PAP can become more influential in shaping continental law without claiming powers that it does not presently possess.

PAP must develop a workable internal procedure

The significance of the Executive Council’s decision will depend not only on the modalities developed by the African Union Commission, but also on PAP’s institutional readiness to provide timely, rigorous and representative advice. PAP should therefore develop and formally propose its own internal implementation procedure rather than wait for the Commission to determine the entire process.

The procedure should provide for early notification and formal referral of selected draft instruments, accompanied by explanatory memoranda and other relevant documents. Parliamentary scrutiny must take place while amendments remain possible; referring drafts after the essential legal and political issues have been settled would reduce PAP’s participation to a procedural formality.

Clear and objective criteria should also determine which instruments are referred to PAP. Priority should be given to drafts affecting citizens’ rights, requiring national legislation, imposing substantial financial obligations, creating new institutions or having major constitutional, governance, economic or social implications. PAP should also be permitted to request the referral of an instrument where it considers parliamentary scrutiny necessary.

Each draft should be assigned to the appropriate permanent committee, supported by a coordinating legal scrutiny mechanism where necessary. The responsible committee should be empowered to consult national parliaments, regional parliamentary bodies, experts, civil-society organizations and groups likely to be affected by the proposed instrument. This would allow PAP to draw upon national legislative experience while keeping consultations focused and time-bound.

The procedure must establish realistic deadlines and an accelerated process for urgent or technical instruments, especially when Parliament is not in session. PAP’s contribution should take the form of a concise and reasoned opinion identifying the provisions examined, proposed amendments, implementation requirements and the justification for each recommendation. This would make its input easier for the Commission, relevant STCs, STC-JLA and Member States to assess.

Finally, the procedure should require institutional feedback. The Commission should indicate which PAP recommendations were accepted, modified or rejected and, where appropriate, explain why. PAP’s opinions and the responses received should be preserved as part of the instrument’s legislative history. Adequate legal research, drafting, translation and committee support will also be essential if PAP is to transform this opportunity into a credible and enduring role in the development of African Union law.

Important limitations remain

The wording of the decision is deliberately cautious. It refers to "possible modalities," "selected" instruments and "advisory" input. It preserves the authority of the institutions already responsible for initiating, negotiating, legally clearing and adopting AU instruments.

PAP's recommendations will therefore not bind the Commission, Member States or policy organs. The Parliament will not acquire the power to approve or block a draft. Its influence will depend on the quality of its opinions, the stage at which it is consulted and whether other institutions engage seriously with its recommendations.

Those limitations should not obscure the opportunity. Advisory authority can carry considerable political weight when it is exercised consistently, supported by evidence and linked to national parliamentary processes. PAP can build institutional influence by demonstrating that its intervention improves legal quality, strengthens public legitimacy and anticipates implementation problems.

From formal opening to institutional practice

Paragraph 8 of EX.CL/Dec.1362(XLIX) requests the Ministerial Committee to report on implementation at the next Ordinary Session of the Executive Council. That follow-up requirement indicates that the call for engagement was intended to produce action rather than remain a ceremonial acknowledgement of PAP, ECOSOCC and AUCIL.

For PAP, the immediate priority should be to prepare a formal institutional position on the modalities, approve an internal draft-instrument scrutiny procedure and designate the bodies responsible for engaging the Commission. It should also seek a regular channel of communication with STC-JLA, AUCIL and ECOSOCC.

If implemented well, the decision could begin to close the distance between continental treaty-making and national parliamentary implementation. It could expose draft AU instruments to representative political scrutiny before adoption, improve their prospects of ratification and ensure that implementation requirements are considered from the beginning.

If the mechanism is reduced to occasional invitations to comment on instruments whose content has already been settled, however, its impact will be negligible.

The Executive Council has opened an institutional door. PAP must now demonstrate that it is ready to walk through it with a disciplined procedure, strong legal and policy analysis, and a clear understanding of the parliamentary perspective it alone can bring to the development of African Union law.