Citizen perspectives on the role of the African Parliament’s monitoring of AU legal instruments

I attended the August 2013 session of the Pan African Parliament. My first impression was of an institution that was open to the public and not a ‘closed’ space (or at least not as closed as most AU organs). My experiences at the AUC, for instance, have been peppered with requirements of some kind of accreditation, heavy security presence, having to appear on visitors lists, among other official requirements.

This was not so at the Pan African Parliament. The security clearance was gracious and the personnel very happy to welcome us to the institution. It was easy to get access to documents and get meetings with Members of the Parliament. Where we had activities even those outside of the Parliament, the MPs were happy to engage and to participate. It was easy for us to navigate the Parliament and make our petitions with the Secretariat providing translation, IT providing us with support services and the Bureau giving us appointments to share the research that we had developed.

When my colleagues and I were introduced to the chair of the Committee of Human Rights and Access to Justice, we received a warm welcome and he expressed gratitude at our presence, assuring us that it was not a favour he was doing us because after all the Parliament belong to all Africans and all their sessions were open to the public. The Committee on Agriculture and Rural Development was equally as welcoming to our team and the presentations we sought to make.

CONTEXT WITHIN WHICH THE PAN AFRICAN PARLIAMENT OPERATES

i. The strain between the Pan African Parliament and National Parliaments

Like most other transnational parliamentary assemblies, the Pan African Parliament operates within a context of institutional, often competitive, relations with the parliaments of member states, where the former face a major political hurdle – the issue of national sovereignty – which not only underpins the authority of member state parliaments, but also the thinking and concerns of heads of states in public debates about giving greater legislative powers to the Pan African Parliament. It has been widely documented in numerous discussions and publications that the member states of the AU are not yet prepared to delegate greater legislative powers to the PAP. Understandably, such powers currently reside in the Executive Council and heads of states and governments. One of the key reasons for this reluctance is that the majority of AU member states do not want to lose or undermine their own political and territorial sovereignty, particularly because the legal and political implications of such legislative powers to an institution whose political and legal status is not yet fully determined, might be far-reaching. In many cases there are sovereignty issues even for national parliaments. Some national parliaments do not see how a parliament above them can make laws and have powers.

ii. Varying Legal and Political Systems across the Continent
Many PAP member states operate in varying internal political, constitutional and governance systems, making co-ordination and alignment of these systems and practices potentially difficult – if not impossible – for a new institution such as the PAP

iii. Expected Standards of Performance vis a vis Actual Performance

PAP’s functions and responsibilities are clearly enumerated in a number of protocols – many of these functions are consultative and overseeing in nature. Yet the PAP’s performance has generally been viewed as poor. As noted above a combination of institutional, political, functional and resource constraints were responsible for this poor performance. So in order for the PAP to improve its performance as an overseeing, deliberative and consultative institution, it would have to deal with and overcome many of these constraints, particularly the internal organisational and resource issues. The PAP will need to enhance its own internal corporate governance and administrative efficiency, particularly the management of resources, as well as corporate accountability and transparency in its internal affairs. Dealing effectively with these constraints will be crucial if the PAP is to build its profile and stake its institutional integrity on the role of oversight and promoting good governance, accountability and transparency among other AU organs as well as member states. Some of the issues of concern include the importance of enhancing the PAP’s performance through improved performance on the ground. Once PAP is ‘felt’ by African citizens at the national level, then it will have legitimacy.

WHY DOES THE STATE OF THE UNION (SOTU) COALITION ENGAGE THE PAN AFRICAN PARLIAMENT?

Our interest in the Pan African Parliament stems from the fact that it is actually the only AU Organ whose members have been elected by their citizens by virtue of the fact that most are elected by their nationals and then seconded to the Continental Parliament. They therefore are the voice of their citizens and do and or should continue to speak on their behalf. Even the MPs who are nominated and not elected, tend to be nominated on the basis of the public interest work that they have undertaken. PAP is also crucial because as a transnational or supranational legislative body it is a result of efforts by member states seeking to create economic, social and and political integration. All member states of the AU are represented at the Parliament which gives an opportunity for a holistic picture of the continent.

WHAT IS THE ROLE FOR THE PAN AFRICAN PARLIAMENT IN ACCELERATING THE IMPLEMENTATION OF AU DECISIONS?

A critical mandate of SOTU is pursuing the ratification, domestication and implementation of continental standards at the national level by all member states. It is our belief that it is only in this way that the citizens of Africa will get to enjoy the promises enshrined in all these instruments and policy frameworks. The answer to this question is in the PAP’s mandate, stated in articles 3 and 11 of the Protocol establishing the PAP. According to article 3 of the Protocol, PAP’s role is to promote the ‘effective implementation of the policies and objectives of the OAU/AEC and ultimately, of the African Union’ and basic principles of human rights, democracy, good governance, peace and prosperity among others among African peoples. Article 11 goes further to state the mandate as that of examination , discussion or expression of opinion ‘…pertaining to respect of human rights, the consolidation of democratic institutions and the culture of democracy, as well as the promotion of good governance and the rule of law’ and ‘work towards the harmonization or co-ordination of the laws of Member States.’

A Decision by the Assembly of Heads of State and Government at the Summit in Sirte, Libya in July 2009 provides an opportunity to transform this. The Assembly urged AU Member States ‘to prioritize and accelerate the signing and ratification and accession to OAU and AU Treaties and called on African Union Organs including the Pan African Parliament to “assist with advocacy and sensitization of Member States.’ They further called on all Governments to ratify and accede to all existing treaties by July 2010 and for future treaties, one year after they have been adopted. This decision reaffirms a mandate imperative for the Parliament to monitor and advocate for the ratification and domestication of treaties and the implementation of continental policy standards.

WHAT WILL IT TAKE FOR PAP TO UNDERTAKE THIS CRITICAL ROLE?

i. Universal Suffrage and Legitimacy of PAP
Institutional legitimacy will strengthen the case not only for enhancing and strengthening its position in AU decision making processes, but also for increasing its profile among parliaments and the general public. An outstanding issue concerns ongoing discussions is the issue of the election of the membership of the PAP as important for enhancing its institutional legitimacy. It is believed that direct elections of the PAP members would contribute considerably towards enhancing its popular/democratic legitimacy. Currently, the PAP members are nominated at the national level by their constituents and then are appointed to the Pan African Parliament. They do not run for direct election into the PAP. Some people have argued that his severely limits its democratic integrity as a representative institution, and therefore undermines its popular legitimacy. Resolving this problem has been facing a number of challenges. Key among these are serious political, financial and other factors that are likely to hamper any attempt to move from the current system of appointments to a system of direct elections. For instance, while the PAP is currently pushing for greater legislative powers, it has failed to focus political attention on the wider problems of democratisation in Africa in general, and the problems of universal adult suffrage in particular. Its revised Protocol retains national parliaments as the primary agencies in assigning members to the PAP, either by election or selection.

It needs to be acknowledged that the argument in favour of direct elections for PAP members poses unknown and potentially radical political consequences at member state level. For instance, while giving citizens at this level the right to elect PAP members directly would enhance the popular legitimacy of the PAP and the individual members, this might also lead to unwelcome popular/political pressures on member state governments, especially for undemocratic regimes, for greater democratisation and accountability. Also, this will obviously lessen the power of the national parliaments over the process of selecting and assigning members to the PAP. The political and practical implications and repercussions of this are as yet unknown and might serve as a disincentive for member states to adopt direct elections for PAP members – as well as the cost implications of this venture.

ii. Enhanced Legislative Powers for the PAP

As proponents of greater legislative powers for the PAP we believe that the delegation of greater legislative powers will be crucial in that it would enhance the political and institutional power and influence of the PAP in terms of increasing its political capacity to promote good governance in Africa. In theory, all parliamentary (national or transnational) institutions share broadly similar functional objectives, even if their ultimate goals vary – the key ones are making laws, engaging in public debates and deliberations of important policy issues, representing their constituents and ensuring the accountability of office bearers through a variety of oversight practices. However in practice there are major differences in the extent to which these key functions are carried out as functions of the institutions and the vigour with which they are applied. In the case of transnational parliamentary bodies such as the PAP, balancing the socio, economic and political interests of the regional collective against those of the individual member states makes the effective application of these traditional functions (where these exist) extremely difficult. In other words the ability of transnational parliamentary assemblies such as the PAP to assert their legislative and other functional authority over members is often undermined by the fact that individual member states are still protective of their sovereign legal, territorial and political rights, and continue to wield enormous political and other authority over the transnational parliamentary authority.

The PAP Bureau has identified 18 competency areas for consideration and adoption. These include democracy, good governance and human rights; free circulation of persons and goods at continental level; education; public health; voting of the budget of the AU, and ratification of AU treaties and agreements. The PAP had envisioned limited legislative competency over six of these areas by 2011. Greater legislative powers will be necessary to enhance the PAP’s ability to monitor newly established AU authority. At its summit in July 2009, the AU African heads of state decided to set up an AUA to serve as an institutional underpinning for the goal of a United States of Africa. The assumption is that, with clearly defined legislative powers, the PAP will be able to exercise full oversight over the AUA in terms of good governance and democratic principles

iii. Strengthening Oversight, Advisory and Consultative Functions

For the PAP to fulfil its key objective of facilitating the effective implementation of the policies and objectives of the AU, and for promoting dialogue and participatory decision making at continental decision-making levels, it will need to strengthen its capacity for oversight and put in place effective mechanisms to promote consultative and participatory practices in its activities. In terms of enhancing oversight, the PAP would need to ensure that it monitors the work and activities of the AU Executive and its administrative agencies, and holds it accountable on behalf of the parliaments of the member states and the people of the continent. If PAP considers oversight as part of its function, it can do a lot with even an advisory and consultative role which includes in my view oversight role. The AU itself can show reciprocity by making the consultative role of the PAP obligatory on certain policy matters, an objective currently being pursued by the PAP as part of its push for full legislative powers and greater oversight competency.

It is essential though that the PAP sees oversight and monitoring as integral components of its oversight role. Even its Rules of Procedure anticipate and make provision for the PAP to carry out oversight work. To strengthen itself procedurally and structurally, the PAP would have to set up or strengthen existing internal mechanisms such as sectoral or ad hoc committees in line with the policy sectors under the jurisdiction of the AU Executive in order to streamline and enhance the effectiveness and quality of its oversight work. The PAP’s own Rules of Procedure do spell out certain mechanisms and procedures for the PAP to carry out its oversight or control functions. Among these are question and answer sessions, reports to parliament, investigations and budgetary oversight. All these are traditional instruments used by many, including national parliaments and similar institutions. To strengthen the quality and seriousness of its oversight work, the PAP will need to review and clarify its powers to summon officials and ministers to appear before its committees to present information and/or account for their activities, and ensure it has the legal authority to issue and enforce such summonses.

iv. Enhanced Relations between PAP and National Parliaments in Member States

This will contribute greatly towards a shared policy and programme vision among AU institutions. Secondly, improving relations between the PAP as a continental parliament and the parliaments of the member states will be crucial. Transnational institutions such as the PAP can perform their functions effectively and fulfil their mandates only with the consent, co-operation and collaboration of the member state parliaments. It is important for the PAP to acknowledge and accept that the member state parliaments are its constituent entities in its quest for greater political legitimacy and ability to influence AU decision-making processes. The national parliaments are therefore potentially the PAP’s very important strategic allies, and the PAP needs to cultivate good relations with these parliaments by making itself more relevant to their needs. For instance, the member state parliaments will play a crucial role not only in crafting a transnational polity within which the PAP will function, but also in giving their political consent and authority to a new and more enhanced role for the PAP as a continental legislative institution with legislative powers binding on all member states.

Broadly speaking, national parliaments can contribute to bolstering the work of the PAP in a number of ways:

•National parliaments play a crucial part, such as leading national debates on key continental issues with a bearing on their own jurisdiction (ratification of treaties in order to give negotiating and voting mandates to their governments).

•They are important players in terms of monitoring and overseeing their national government’s implementation of transnational decisions and policies.

•They have an important influence on the Council of Ministers. Through specialised committees (e.g. the committee on regional relations or multilateral relations) national parliaments can exercise considerable influence and even control over their ministers in terms of decisions to be taken within key AU structures.

•Many national parliaments have set up relevant internal committees whose functions include monitoring regional and continental policy developments in key social and economic sectors.

It is clear therefore that the PAP needs to cultivate closer and collaborative relations with national parliaments as a way of enhancing its position within key AU structures where national parliaments are influential. This is particularly crucial considering that the long road to the EU Parliament acquisition of legislative powers would have been shortened had it managed to develop good relations with the parliaments of the member states right from the beginning. In the past there have been recommendations around creating PAP Parliamentary Liaison Offices in the parliaments of the member states. This assumes that member state parliaments are duly constituted and are able to participate in decision-making processes on behalf of their citizens at national level and at PAP level. It should be acknowledged, however, that there are many instances in Africa where national parliaments are either marginalised by undemocratic regimes or do not exist. Such cases do not provide an environment that is conducive to collaborative relations with the PAP. PAP needs to identify and collaborate with parliaments that subscribe to universally accepted democratic principles, in line with the goal of the PAP.

v. Support Implementation of AU Legal Instruments and Policy Frameworks at the National Level

The Pan African Parliament passed a set of resolutions at the conclusion of the Annual Conference of National Speakers from across Africa (August 2012) http://www.youtube.com/watch?v=TJyz4fwD9xk The resolutions state that "National Parliaments should “develop mechanisms to track the ratification, domestication and implementation of the AU Decisions”, and that the PAP should “undertake periodic monitoring missions to monitor compliance, identify best practices and urge action on ratification, domestication and implementation”. They further resolved that the PAP should “work with African civil society and media organizations to hold parliamentary briefings and public hearings”, and that the PAP should “coordinate the reporting mechanism that tracks and accelerate ratification, domestication and implementation”.

The resolutions also called on the PAP and the National Assemblies “to ensure that the ratification and implementation of AU instruments becomes an annual standing item on the Parliamentary agenda”. They further called on upon African Parliaments ‘to urge their respective Governments to provide resources to achieve accelerated popularization, ratification and implementation.’ [1]

PAP can only achieve the above commitments through the inter-institutional rapport between the PAP and the AU needs to be rebuilt and strengthened. Such a strengthening will be essential if the PAP is to wield political clout and influence within AU processes. It needs to create close, co-operative and collaborative working relationships with key AU organs and make itself relevant to their work. Some of these key institutions are the AU Executive Council, the AUC, and the Permanent Representatives Committee – the latter are politically and institutionally influential and enjoy discretionary powers from the Executive Council. It is also crucial for the PAP to position itself strategically in relation to the Assembly, to ensure that effective communication between the two takes place and to enhance the PAP’s ability to give input into the Assembly’s deliberations. It needs to be noted though that the AU itself might need to initiate some of the necessary institutional changes to underpin the process of bringing the PAP closer to important AU decision-making processes. One of these systemic changes would entail enhancing inter-institutional consultative processes around the AU’s policy co-ordination, and strengthening implementation capacity in a way that strengthens sectoral linkages involving all AU organs, including the PAP. Fast-tracking the institutionalisation of the AU Specialised Technical Committee (STC) can strengthen the links between the AU sectoral policies. STCs represent the central base for the initiation of sectoral projects and programmes of the AU and can play an important role in ensuring policy coherence between PAP and the AU.

vi. PAP Engagement with Africans and their Organisations

Thirdly, building strong and collaborative relations with civil society organisations will be crucial for the PAP. Moreover, the Protocol makes provision for civil society to participate in its activities. This was an important strategy, utilised to good effect by the EU Parliament during its formative years as it sought to build its own public profile and political clout among European publics as the process of European integration progressed. The EU

Parliament was eventually able to inspire confidence among voluntary organisations and other social groups across national boundaries, serving as a platform for organised social and advocacy groups seeking to influence EU decision-making processes. Africa has many highly organised interest groups, advocacy and lobbying organisations and social movements conducting valuable work in a variety of policy sectors (e.g. poverty, environment, education, regional security, food security, democracy and governance). While many of these groups are organised at national level, many are increasingly operating at regional and continental level. Also, many have developed expertise in a range of policy sectors and have accumulated a wealth of knowledge and information that might be of use to the PAP as it seeks to influence decision-making processes within the AU. These groups therefore present an untapped opportunity for the PAP to create collaborative working relations leading to an effective exchange of information and knowledge, as well as strengthening its own capacity for lobbying and advocacy on social policy, democracy and other continental challenges.

Also, the potential benefits accruing from such information and knowledge exchange between the PAP and civil society organisations would be enormous and strategic in strengthening the PAP’s oversight role. Collaboration with civil society organisations might also be useful as a learning tool in terms of development of skills, such as fund raising and dealing with institutional capacity weaknesses that have affected the PAP’s performance in the past. Some civil society organisations have already been involved in creating collaborative relations with the PAP.

vii. Enhancing Access to Information by the Public

Access to Information is very critical for national, regional and continental legislative assemblies to carry out their oversight functions. Some of the critical data that needs to be accessed in order to meaningfully engage with budgets and legislative decision making include the need for comprehensive, accurate, appropriate and timely information. The second is the Budget document which in many cases contains little narrative outlining policies underlying tax and spending proposals. This means that policy briefs in the form of explanatory notes need to accompany the main document with clear policy objectives that are sufficiently related to the proposed expenditures. Technical expertise in interpreting the budget document is very crucial. In many cases this can be found within the parliamentary budget offices which provide important sources of independent expertise. In addition access to information of best practices is crucial. Within the continent exist vast opportunities from cross national and regional peer learning on what has worked and what has failed in the various countries and diverse contexts which can be utilized.

viii. Development of Model Laws

To acquire greater legislative powers and competencies in relevant policy areas; this was unequivocally articulated by many speakers. To underline the importance of achieving this objective, a time frame of 2011 was set by the PAP Bureau. These demands for greater legislative powers have been made since the PAP was introduced in 2004 – they are usually premised on the perception and expectation, not only of the PAP members, but also some commentators and observers, that parliamentary institutions by their nature must have legislative powers and competencies. Yet there are well documented political, institutional and other obstacles that have prevented the realisation of this objective, leading to PAP’s legitimacy [2] being severely undermined. As a result, some critics consider it a ‘toothless’ body with no meaningful purpose in the lives of ordinary people on the continent. Thus there is an urgent need for policy and decision makers on the continent, including the PAP itself, to seriously rethink its role, functions and competencies and explore ways of strengthening it institutionally and politically in the absence of legislative powers and competencies

To enhance its legitimacy, the PAP has called for its own transformation into a respected continental body with legislative powers usually reserved for traditional legislative institutions. There is a strong belief that such legislative competency is a necessary prerequisite for the PAP to make a positive impact on the lives of ordinary people. However given the political and other obstacles militating against PAP’s acquiring greater legislative powers in the short to medium term, there is a need for the PAP to review its role, functions and responsibilities within the AU system. In particular, this might involve placing more emphasis on non-legislative[3] functions and responsibilities, such as oversight (i.e. monitoring and overseeing the work of the AU Executive) as well as serving as a deliberative body (i.e. a platform for stakeholders and organised interest groups and civil society) to participate in shaping continental policies, politics and governance.

CONCLUSION

Based on the foregoing, it is clear that although lots of progress has been made, the PAP has a way to go in terms of consolidating its position as a continental parliamentary institution, not only with the AU system, but also in the eyes of the member states of the AU and the general public across the continent. The challenge of transforming itself into a transnational legislative body is even more daunting, given not only the institutional and resource constraints facing the institution, but also the intractable political obstacles. Primary among these obstacles are the problems of political and territorial sovereignty, which the member states of the AU are still highly protective of.

It is also clear that the PAP’s goal of enhancing its political and institutional legitimacy through rapid assignment of greater legislative powers requires political, technical and institutional facilitation but also because seemingly the AU and the political leaders in the continent are extremely reluctant to assign such greater powers to the PAP. It is also because of two additional factors: firstly, it would appear that the PAP might not be fully ready, in terms of its institutional capacity and resources, to assume and exercise such enormous legislative power with as yet unknown implications and consequences on the member states and other AU organs. Secondly, the fact that the AU Court of Justice is not yet established means that no judicial institution exists to act as a legal arbiter on the exercise of such legislative powers over continental bodies.

Broadly though, there is a strong consensus that seeking to enhance the institutional legitimacy and influence of the PAP might be best achieved by enhancing its institutional capacity to perform its non-legislative (oversight, consultations, deliberations, etc.) functions rather than by calling for rapid assignment of greater legislative powers. This paper therefore discussed the various ways in which the PAP needs to focus attention on strengthening its non-legislative functions, at least in the short to medium term, in order to enhance its political and institutional profile and legitimacy, and thus strengthen its case for greater legislative powers in the long term. This might help the PAP become an influential AU institution with greater ability to influence decision-making processes inside the AU and across the continent.

ENDNOTES:
1. http://www.pan-africanparliament.org/News.aspx
2. Legitimacy denotes a state of general acceptability – when institutions, practices, norms and values are generally regarded as acceptable in a given society. This is crucial, especially where the authority of individuals, leaders and institutions to exercise over others is potentially subject to disputes or questions. Authority is legitimate power, and legitimacy entails the authority to exercise power over others who in turn consent willingly to the exercise of that power in given social and political contexts.
3. Non-legislative powers and functions are powers and functions that do not entail the process and activities of law making, including representation, public participation, consultation, advocacy, deliberation and executive oversight.

* Kijala Shako is part of the Democratic Governance lead-Panafrica Programme-OXFAM-GB

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