OPINION | Ratifying Pan-African Parliament Malabo Protocol





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By Michael Jegede

The coming into force of the envisaged new Pan-African Parliament (PAP), one of the institutions of the African Union (AU), envisioned by its founding statute, drawing inspiration particularly from the model of the European Union (EU), hinges on a document called the Malabo Protocol.

PAP was provided for in Article 7 of the Treaty establishing the African Economic Community (AEC) signed in Abuja, Nigeria, on June 2, 1991 and Article 5 of the Constitutive Act of AU adopted in Lome, Togo, on July 11, 2000, by the Assembly of Heads of State and Government in Africa.

As also contained in Article 14 of the AEC Abuja Treaty, Article 17 of the AU’s Constitutive Act, states that “(1) In order to ensure the full participation of African peoples in the development and economic integration of the continent, a Pan-African Parliament shall be established. (2) The composition, powers, functions and organization of the Pan-African Parliament shall be defined in a protocol providing thereof.”

Consequently, the Protocol to the Treaty establishing AEC relating to PAP was adopted on the 2nd of March 2001 and entered into force on the 14th of December, 2003, after the deposit of the instruments of ratification by a simple majority of the Member States. The inaugural session of the African Parliament was held on March 18, 2004, in Addis Ababa, Ethiopia. Its seat was later moved to Midrand in South Africa.

PAP was meant to be the legislative wing of AU in the mold of the European Parliament with the mandate to promote economic and social integration of the African people through lawmaking. About 16 years after inauguration, it has continued to operate as a mere consultative and advisory body without the passage of a single law. This is in accordance with Article 2 of the Protocol to the Treaty Establishing the AEC relating to PAP which stipulates that “The ultimate aim of the Pan-African Parliament shall be to evolve into an institution with full legislative powers, whose members are elected by universal adult suffrage. However, until such time as the Member States decide otherwise by an amendment to this Protocol: i) The Pan-African Parliament shall have consultative and advisory powers only; and ii) The Members of the Pan-African Parliament shall be appointed as provided for in Article 4 of this Protocol.”

By virtue of the above stated provision of the original protocol that brought the African Parliament into existence, members have been unable to make laws to ensure the actualization of the specific goals for which the parliamentary body was established. Even though the Pan African parliamentarians may have been doing their utmost to live up to expectation, in the exercise of their advisory and consultative powers, whatever they come up with from their deliberations have no binding effect.

This situation where PAP is only authorized by the protocol establishing it to engage in consultation, and play advisory and oversight role, had been a great source of worry to the parliamentarians and most Africans. It is believed that the 2001 protocol had continued to render the African Parliament impotent, despite the conscious efforts made by members to deepen African integration at a faster speed. Many had contended that it was of no use keeping PAP, if the initial protocol was not reviewed to grant full legislative authority to the African parliamentary congress.

However, after much push and clamour by the parliamentarians and concerned African citizens, the AU Assembly, in Malabo, Equitorial Guinea, on June 27, 2014, adopted the Protocol to the Constitutive Act of African Union Relating to the Pan-African Parliament, as a replacement of the old Protocol to the Treaty Establishing the AEC relating to PAP. Article 8 (1) of the 2014 Protocol provides that “The Pan African Parliament shall be the legislative organ of the African Union”.

Obviously, the issue of granting legislative powers to the African Parliament has been addressed by the adoption of the Malabo Protocol since 2014. Nevertheless, ratification by member states has been the stumbling block preventing the new Protocol from taking effect. The process of ratification has three stages: the signing, ratification and depositing of instruments of ratification at the AU Commission.

Article 23 of the revised PAP Protocol declares that “This Protocol shall enter into force thirty (30) days after the deposit of the instruments of ratification with the Chairperson of the Commission by a simple majority of the Member States.” With this provision, PAP can only begin to exercise the power to legislate as already granted by the Malabo Protocol, 30 days after a minimum of 28 member countries (based on a simple majority of 55 AU member states) have completed the three steps in the ratification procedure.

Almost six years after the adoption of the new PAP Protocol, only 12 countries have successfully completed the process of ratification. The twelve Member Nations that have ratified the document are: Benin, Cameroun, Chad, Ghana, Madagascar, Mali, Sahrawi Arab Democratic Republic, Sierra Leone, Togo, Equitorial Guinea, Gambia and Somalia. Countries that have signed and yet to ratify include: Algeria, Central African Republic, Comoros, Congo, Djibouti, Guinea-Bissau, Guinea, Mauritania, Sao Tome & Precipe, Sudan, Zimbabwe and South Africa, the host country of PAP.

Nigeria, Angola, Botwana, Egypt, Ethopia, Mozambique, Rwanda, Namibia, Kenya, Libya, Liberia, Eswatini, Zambia, Niger, Morocco and Malawi are among the 31 member states that have done nothing at all to bestow legislative powers on PAP. Others include: Cape Verde, Burkina Faso, Gabon, Senegal, Uganda, Tanzania, Seychelles, Mauritius, Democratic Republic of Congo, Lesotho, Eritrea, Cote d’Ivoire, Burundi, South Sudan and Tunisia.

With the full endorsement by 12 member nations, 16 more are needed to ratify the Malabo Protocol for it to become effective. Efforts have been intensified by the African parliamentarians at sensitizing member countries on the need to ratify the new document. In November 2019, a four-day consultative meeting of the East African Regional Caucus of PAP held in Nairobi, Kenya, was aimed at building regional consensus on AU legal instruments and promoting the ratification of the Malabo Protocol.

Delivering a goodwill message at the consultative meeting, Vice President of the African Parliament, Hon. Chief Fortune Charumbira, said the ratification of the Malabo Protocol was long-overdue. Charumbira noted that the coming into effect of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) on May 30, 2019, has further made it imperative for AU member countries to quickly see to the ratification of the new PAP Protocol. The PAP VP, argued that the exercise of the power to make law by the African Parliament, is key to the attainment of success in the operation of the AfCFTA, as trading under the scheme is scheduled to commence on July 1, 2020.

In the words of Charumbira, “It is common knowledge that the Sun rises in the east. Therefore, I expect that you will bring light to the issue of the ratification of the PAP Protocol as this is long overdue and the integration of the continent is at stake. In fact, African Union member states have just overwhelmingly ratified the African Continental Free Trade Agreement (AfCFTA). This is very good news. However, how do we move from here without a continental Parliament that can legislate and harmonize laws to ensure that all our national systems are compatible with the requirements of this agreement? Our people cannot wait any longer. Institutions such as the PAP were established based on a rationale that is still valid today. We need it and we urge civil society to join us in putting pressure on our leaders for this issue to be expedited.”

Chief Administrative Secretary of the Ministry of Public Service for Youth and Gender Affairs of Kenya, Hon. Rachel Shebesh was equally at the PAP’s East African Regional Caucus consultative forum. An erstwhile member of the African Parliament, Sabesh, while addressing her former colleagues, enjoined them not to relent in their advocacy for a full-fledged legislative organ.

Noting that lack of political will on the part of the member countries was the major impediment to the ratification of the amended PAP Protocol, she said: “As a former member of this Parliament I understand the challenges as well as the potential of this institution. We fought so hard to obtain the revised Protocol from Heads of State and Government in Equatorial Guinea in 2014, so we cannot give up now. From a Kenyan perspective, we are committed to the PAP and we will ensure that the Parliament is given the place it deserves.”

In a pre-event release, PAP’s President, Rt. Hon. Roger Nkodo Dang, remarked: “This meeting constitutes a crucial step in rallying Eastern African countries behind the ideal of a powerful continental Parliament that can legislate for all. We held a similar gathering in the central African region in 2017 and it resulted in the ratification of the revised PAP Protocol by Cameroon, Chad and Equatorial Guinea as well as the signature by the Central African Republic. We hope to garner the same momentum from East Africa as we target 28 ratifications.”

Speaker of the Parliament of Uganda, Rt. Hon. Rebecca Kadaga, has been a strong voice in the call for the Malabo Protocol ratification by AU member nations. She has been particularly worried that her country was yet to ratify the new PAP Protocol, as she continues to mount pressure on the government of Uganda to do the needful. At a sitting of Uganda’s Parliament in August, 2019, Kadaga and her colleagues refused to accept the explanations offered by the government for the country’s delay in the ratification of the revised Protocol.

The Uganda’s Minister of State for Foreign Affairs, Hon. Henry OkelloOryem, put the blame of the delayed ratification on the Ministry of Justice when he said: “Ministry of Foreign Affairs is usually at the tail end of the ratification process. We have written to the Ministry of Justice reminding them to take the necessary consultation and present the matter to cabinet for approval,” adding that “once the Ministry of Justice plays its role, the Ministry of Foreign Affairs will prepare, sign and deposit instruments of ratification with the African Union.”

The Deputy Attorney General, Hon MwesigwaRukutana, however, replied that there was need to examine the implications of ratifying the protocol, hence the delay.

He said: “We have taken some time because we are cautious. We are looking at signing a protocol that empowers the PAP to make laws. The concern is on the weight of laws of PAP vis-a-vis the laws of Parliament of Uganda… This is not something that we should take lightly. Before we cede our sovereignty, we must be careful.” Insisting that the delay was necessary, he requested for more time to allow government carry out consultations.

Responding to the ministers, Speaker Kadaga fumed: “I am reluctant to accept your response to this issue. I think it is an insult that government comes and says that it is not me, it is the other one. As far as we are concerned, the Ministry of Foreign Affairs is in charge of ratifications.” While declaring that she was “flabbergasted by what the government people are saying”, Kadaga averred that “attributing the delay to the need to consult is not convincing because government was involved in formulation of the Treaty.”

President of the continental legislature, Dang, had always said there was nothing for member countries to fear in the ratification of the new PAP Protocol, as it would go a long way to quicken the realization of the AU blueprint and common vision of a united, integrated and strong Africa. “We won’t touch your sovereignty”, Dang was once quoted to have said, while appealing to governments of member nations to try to understand the need for the empowerment of African Parliament with the ratification of the amendments to the original PAP Protocol.

He had at different times clarify that the new protocol was not designed to tamper with the sovereignty of the AU member states and displace national and regional parliaments, adding that the Continent stood to benefit more with its ratification. Explaining further that there was truly no cause for fear, the PAP helmsman had observed that member states, through the AU Assembly of Heads of State and Government, are empowered by the Malabo Protocol to ensure the anticipated new African Parliament does not go beyond its jurisdiction, in the exercise of its legislative authority.

Besides seeking to move African Parliament from being just a consultative and advisory forum to an institution with full legislative responsibilities, the new Protocol also provides for election of PAP legislators outside the membership of national parliaments. This implies that the tenure of PAP members would no longer be tied to their respective national Parliaments when the revised Protocol comes into force. The amendments also include increase in representation of women from one out of five designated MPs per country to two.

*Jegede, a journalist and public affairs commentator writes from Abuja, Nigeria

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