09 Oct 2006: ISS Today: The Pan-African Parliament With Legislative Powers: What Will Happen?

09 October 2006: The Pan-African Parliament With Legislative Powers: What Will Happen?

 

When the Pan-African Parliament was launched back in 2004, much was said about the role it would play in the continental scheme of things. Indeed, Article 3 of the Protocol to the Treaty Establishing the African Economic Community Relating to Pan-African Parliament details the objectives for which the PAP was established. Key among these include the responsibility for the continental parliament to “promote the principles of human rights in Africa” as well as “promote peace, security and stability”.

 

As it would be recalled, the thinking has been that the PAP would operate in an advisory capacity in its first five years (from 2004 to 2009) and possibly graduate to a legislative status beyond its first term. Importantly, it is not stated anywhere that the graduation was a given and that it would be automatic. To a large extent, such a graduation will depend on the demonstration by the PAP itself, in its first five years that it would make a unique contribution if legislative powers were to be granted. Indeed, this needs to be clearly reflected when the PAP Protocol comes under review. Now that the PAP has already held five Ordinary Sessions, it is necessary to ask: What role has the PAP played that perhaps should inform its second term and beyond?

 

The first, and perhaps the obvious, is that the PAP has for the first time in the history of Africa brought together parliamentarians from all over the continent who would otherwise not meet to discuss the affairs of the continent in the form that the PAP has taken.

 

More substantively, there is a pattern emerging from the past Sessions of the PAP and it goes like this: 1) the PAP identifies a problem (conflict) in a given country, 2) it dispatches a fact-finding mission that later tables a report to the parliament for discussion, and 3) it makes recommendations or statements to organs of the AU or parties to the conflict. In addition to making recommendations or statements, the PAP also formulates and advocates positions regarding conflicts or governance situations in African countries. The examples of this pattern are the PAP missions already dispatched to Darfur (in 2005) and Chad (in 2006).  This week (on 13th October 2006) a PAP mission is leaving for the Ivory Coast to assess the peace process in that country.

 

The difficult question the PAP always has to answer is: What do you do when AU organs or actors in a conflict situation do not accept or implement your recommendations? In the first five years of the PAP’s life, the honest answer is: “nothing”. Examples in this regard abound. All the PAP recommendations on the budgets it has hitherto developed have not been approved in their original form by the AU Summit. Furthermore, there is no evidence suggesting that the PAP recommendations on Darfur have been implemented. Among others, it is this sad reality that should goad the PAP into thinking through what it would do exactly if it were to be conferred with legislative powers.

 

Two weeks ago, the PAP hosted a seminar in Arusha, Tanzania, on the harmonisation of Regional Economic Communities and Regional Parliamentary Assemblies. At the seminar, delegates proposed that the review of the PAP Protocol should take into consideration the possibility of the PAP, proposing model laws to AU Member States. The question of what would happen in the event that Member States reject such laws is a conundrum yet to be unravelled.

 

Speaking at the same seminar, Professor Shadarak Gutto, Head of the African Renaissance Centre at the University of South Africa, pointed out that the question of adding legislative powers to the PAP was a legally complicated one since it had direct implications for electoral regulatory frameworks of AU member states. He observed that while the ultimate aim of the Pan-African Parliament would be to evolve into an institution with full legislative powers, whose members are elected by universal adult suffrage, this was no easy matter since PAP members would need to be elected directly from member states. In this regard, he pointed out that this would not only call for the amendment of the PAP Protocol, but it would also require the amendment of legal instruments regulating elections within member states. He therefore suggested that Article 11 of the PAP Protocol, stating that “The Pan-African Parliament shall be vested with legislative powers to be defined by the Assembly”, would not be given practical legal expression without implications for the electoral laws of Member States.

 

From its Sixth Ordinary Session (13th to 24th November 2006), the PAP is likely to set a process in motion to contribute to the review of its Protocol. Judging from the above reflections, it is clear that there are no easy answers to the issues that the review will deal with, particularly the matter of legislative powers for the PAP. Against this background we can only ask: I yo zala nkomoni? (What will happen?)

 

Prince Mashele, Regional Projects, ISS Tshwane (Pretoria) Office