Pan-African Protocol: deliberations

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Meeting report

WORKING GROUP ON THE AFRICAN UNION
13 June 2002
PAN-AFRICAN PROTOCOL: DELIBERATIONS

Chairperson: Dr F Ginwala (ANC)

Documents handed out:

Draft Report of the Commission on Legal/Judicial Implications of the Protocol, 11 June 2002 (see Appendix 1)
Draft Report of the Commission on Political Implications (Appendix 2)
Draft Report of the Commission on Socio-Economic Implications (Appendix 3)
Draft minutes of the meeting of the Working Group, 6 June 2002
Protocol to the Treaty establishing the African Economic Community Relating to the Pan-African Parliament

Official AU website:
http://www.AU2002.gov.za

Present:
Speaker (Chairperson)
Deputy Speaker
Bhengu, G B
Cassim, M F
De Lange, J H
Eglin, C
Geldenhuys, B L
Hajaig, F
Madasa, Z L
Makanda, W G
Motubatse, D
Seremane, J
Sithole, J
Turok, B

Apologies: Dr Z P Jordan, Dr R Davies

Staff in attendance: Jenkins, F (Parliamentary Law Advice office); Gabriel, L (Information Services Section); Xaso, M (NA Table); Mohlomi, N (NA Table).

Adv A Meyer was also in attendance.

1. Minutes of 5 June 2002

On page 2, under recommendation 1, the reference to "Sahil" was changed to "Saharawi" Republic. On page 6, under issues agreed in point 2 after "highlight", the word "issues" was inserted. On the motion of Mr Eglin, the minutes were adopted.

2. Matters Arising from the Minutes of 5 June 2002
Prof Turok reported that he had considered the terms of reference on economic integration. He also reported that he had been invited to the meeting of continental experts scheduled for 17 to 19 June 2002 in Pretoria where, inter alia, issues of economic integration would be discussed. He added that he was in possession of relevant material including a list of institutions and individuals across the continent who were knowledgeable on economic integration. He suggested that the draft terms of reference should be reformulated. In that regard, previous work on the matter should be taken into account and existing institutions should also be related to. Research on economic integration should be looked into in some depth and resources were necessary for that to happen. The research team should also be in a position to produce on a regular basis papers which were policy and problem solving oriented. The area of the African economic integration was wide open and if the Working Group wished to be proactive, the scope was available to do just that.

2.1 Progress report on decisions of the Working Group, Page 4

The Secretary of the Working Group reported as follows:
Point 1: The Working Group would be meeting on a weekly basis.
Point 2: The Department of Foreign Affairs had been informed of the meeting of the Working Group and would also be informed of future meetings.
Point 3: The draft rules of procedure had been circulated to the members of the Working Group.
Point 4: The Working group had still to decide on making inputs into the draft rules of procedure of the 4 priority organs.
Point 5: Nepad documentation was being compiled and would be circulated to the Working Group shortly.
Point 6: A report on peer review mechanisms was awaited from Prof Haysom.
Point 7: As soon as the rules on economic governance were received, the Working Group should decide on referral.

Mr Eglin asked whether progress had been made on the suggestion that members of Parliament should be part of the government delegation at the summit. The Deputy Speaker indicated that the Speaker would give feedback on the matter.

2.2 Progress report on decisions of the Working Group, Page 6

The Secretary of the Working Group reported as follows:
Point 1: Speaker was still considering the commissioning of research on multilateral parliaments.
Point 2: The Working Group would compile 2 reports when it finalized the Protocol.
Point 3: The Speaker had been in contact with the Chairperson of the PC on Foreign Affairs, inter alia, regarding the processing of the Protocol.
Point 4: Speaker would follow up on the matter of making an input on the draft rules of procedure with the Executive.
Point 5: The commissions of the Working Group met on 10 May 2002.
Point 6: The commissions had discussed the matter of South Africa being the host to the Pan-African Parliament.
Point 7: Ms Hajaig reported that members of the PC on Foreign Affairs felt aggrieved that they had been left out of the AU process. Mr Sithole also reported that subsequent to the meeting of 5 June 2002, the Portfolio Committee agreed that it would formally communicate with the Speaker to indicate its desire to be incorporated into the Working Group. The Deputy Speaker sought clarity on the manner of incorporation into the Working Group which the members of the Portfolio Committee had in mind, adding that the membership of the Working Group was open to all interested members. Mr Sithole replied that his understanding was that the full complement of the Portfolio Committee would be incorporated into the Working Group and become part of its AU processes. Dr Geldenhuys pointed out that there were eight members of the Portfolio Committee on Foreign Affairs who were part of the Working Group. Mr Makanda expressed the view that the problem centred around defining the relationship between the Working Group and the Portfolio Committee in its capacity as a body that had oversight on foreign relations. There was as sense, in his view, that there was a duplication of roles between the Working Group and the Portfolio Committee. Ms Hajaig agreed with the Deputy Speaker that an invitation was sent to all parties to identify people who wanted to be part of the Working Group. Mr Eglin pointed out that the issue was that the Working Group had decided in the last meeting to ask the PC on Foreign Affairs to join the commissions. However, the Portfolio Committee was also concerned about the manner in which the Conference on Sustainable Development was being organized. A lot of work on the conference had already been done and the PC on Foreign Affairs was just being told that the work had been done and the committee may or may not be included in it. He added that the Portfolio Committee was simply expressing a general view that it would have liked more clarity on its functions in relation to the other parliamentary structures also involved in the field of foreign relations.

The Speaker reminded members that the House had established the Working Group and any change in that would have to be considered by the House. She reported that when she met with Dr Jordan, he did not indicate that he had a problem with the current processes. In her letter to Dr Jordan, she had made the point that the Working Group had asked political parties to appoint additional members and that it would be valuable if some members of the Portfolio Committee were appointed. The Speaker expressed the view that if the Portfolio Committee wanted to do the work being done by the Working Group, it should have indicated so long ago. She explained that unlike most countries, the practise in South Africa was that ratifications were not necessarily only deposited by the Foreign Ministry but line function ministers were known to deposit instruments of ratification. Ministers, other than the Minster of Foreign Affairs, table international conventions that were relevant to their ministries. She gave the example that the Kyoto Convention was tabled by the Minster of Environmental Affairs and the National Assembly acted on the recommendation of the Portfolio Committee on Environmental Affairs and Tourism. In 2000, for instance, Parliament established an ad hoc committee to consider both the African Union Treaty and the Protocol on the Pan-African Parliament. The ad hoc committee and not the Portfolio Committee worked on the matter. The Speaker explained that the Working Group was specifically established to expedite decisions relating to the AU.

Mr Eglin suggested that the Portfolio Committee should be advised that the meeting decided to extend the Working Group into three commissions and that if it wanted to join the commissions it was allowed to do so. The Speaker explained that the commissions/subcommittees of the Working Group were not separate entities and had to report back to the Working Group. The Deputy Speaker added that no limitation was put on any member of the Portfolio Committee to participate in the work of the Working Group. She said that the appeal still stood, namely, that members who had an interest in the Working Group should participate in its processes. She suggested that the Working Group should await a formal communication from Dr Jordan on the participation of the Portfolio Committee in AU activities.

Point 8: Speaker consulted whips at the programme committee regarding the meeting of 6 June 2002.
Point 9: Prof Haysom and Adv Meyer had compiled a memorandum which had been circulated to members.

3. Reports of Commissions

3.1 Report of Commission on Political Implications of the Protocol by Ms D Motubatse

Ms Motubatse reported as follows:

On article 1, no political implications were identified. On article 2, there is a need to consider the relationship between the Pan-African Parliament and the Executive structure (Assembly) of the AU. A concern was raised that the Assembly may not heed the recommendations and decisions of the PAP.

Recommendation: The powers and functions of the PAP in that context need clarification.

International agreements have an effect on a country's sovereignty. When the Parliament becomes a legislative body, a considerable amount of sovereignty would be ceded; however, this cannot happen without amending both the Protocol and the SA Constitution.

There is a need to ensure that the PAP, though consultative and advisory, fits in or locks in with the rest of the AU organs. Concern was raised that the Constitutive Act is silent on how the PAP will relate to organs of the AU other than the Assembly of the Heads of State.

Recommendation: The rules of procedure should possibly address the matter.

The Protocol does not contain clear transitional provisions dealing with the transition from the OAU to AU. The Protocol only refers to OAU/AEC.

Recommendation: The references need to be brought in line with the Constitutive Act of the AU.

Between the PAP and the Assembly, who would be the ultimate decision maker? Concern was raised about the possibility of the PAP not being able to exercise oversight over the AU. On article 3, no political implications were identified. On article 4, the precise meaning of Article 4(3) (deliberative organ) is unclear, and guidelines on its implementation may be necessary. Unlike a conventional Parliament, a deliberative organ may not necessarily be representative of diverse political opinion.

Recommendation: The rules of procedure should elaborate on how the member states will reflect the diversity of political opinion in their respective national Parliaments or deliberative organs. The situation of a deliberative organ without legislative powers should be clarified.

On article 5, it was suggested that regarding representation, the same basis should be used for the SA delegation to PAP as that used in the SADC Parliamentary Forum. The Working Group should consider the details. Regarding tenure, a deliberative organ may have an indefinite term. The implications of this possibility should be considered.

On article 6, the implications of a member voting in his or her personal and independent capacity may need consideration, especially when the vote is likely to contradict the constitutional principles of his or her country.

On article 7, the commission agreed that it was clear in the article, members of the Executive cannot be part of the delegation to the PAP.

On article 8, the commission identified no political implications.

On article 9, a member of the PAP may not be subject to civil or criminal proceedings arising from comment(s) made by him or her in the Parliament. It should be established whether this provision of the Protocol is "self-executing" within the meaning of section 231(4) of the South African Constitution.

Recommendation: The provisions of this article may also need to be incorporated into the domestic laws of member states including South Africa.

On article 10, the commission identified no political implications.

On article 11, the provision that the legislative powers of the PAP are to be defined by the Assembly is questionable. Why should it be the Assembly of the Heads of State that decides what legislative powers the Parliament should have? The fact that the Parliament will not have a final say on its budget is also cause for concern.

On article 12, consideration should be given to the meaning of the phrase "all its members" in article 12(1). Does "all its members" refer to member states or individual members of the PAP. What happens where a member state has ratified the Protocol, but has not designated its Pan-African Parliamentarians or the full complement.

On article 13, 14 and 15, the commission identified no political implications.

On article 16, the commission recommended that South Africa should host the Pan-African Parliament.


On article 17, the commission identified no political implications.

On article 18, the nature of the proposed relationships would need to be politically managed.

On article 19, 20, 21, 22 and 23 the commission identified no political implications.

On article 24, the commission noted that the fact that it is the Assembly, and not the Parliament, which decides on the amendment or revision of the Protocol needs consideration.

On article 25, the commission identified no political implications.

The Speaker pointed out that the Working Group needed to agree on particular points in the reports and suggested that the other chairpersons of commissions should make brief inputs on their reports and thereafter the Protocol should be considered, article by article. Again, the Working Group would need to identify areas that needed follow up and those areas should form part of the second report, if necessary, or should form part of a report to be kept for the actual implementation period. She stated that some of the other aspects that were related to implementation could be debated further, once the ratification process had been completed.

3.2 Report of the Commission on socio-economic implications by Ms Hajaig

Ms Hajaig reported as follows:

Four members attended the meeting. The following questions emerged:
What is the oversight function of PAP with regard to socio-economic issues?
What functions and powers should it have?
What is the nature of this oversight function?

Currently, in terms of the oversight function the protocol does not contain many articles relating to socio-economic issues. Thus, the need to focus on the role of PAP and its structures and then the functions of these structures. Articles of the Protocol that deal with socio-economic issues include Article 3(6), (7), (9); Article 11(2), (7); Article 15 and Article 18.

The Pan-African Parliament does not have powers of subpoena in order to gather information from any of the organs. Article 11 (2) of the Protocol does give the PAP some advisory and consultative role regarding the budget. This role needs to be more clearly defined. The same goes for meaningful oversight powers. In the rules of procedure, the PAP would have to consider this matter.

In terms of gender representation a point was made that there was need to revisit at the relevant provision in the Protocol and see how the minimal level of a delegation could be reconsidered.

In terms of linkages, there was need to define the relationship and interaction between Parliaments and regional economic communities. Other research that should be done in this regard entails the relationship and interaction between the five regional blocks, if any. The result of the research should be incorporated into the working of the Working Group. The structures of the PA which relate to socio-economic considerations and how they interlink with the relevant structures like ECOSSOC and the specialized technical Committees and also generally, how to consider the development in the AU in relation to NEPAD. There needs to be a common understanding of terminology in the protocol e.g. meaning of deliberative organ and what constitutes representative government.

3.4 Report of the Commission on Legal implications of the Protocol by Adv Madasa

Adv Madasa mentioned that the commission had produced two reports and that there were no contradictions between the two reports. He added that the meeting of the commission was well attended. The commission noted that there was a need to unify the definitions between the Constitutive Act and the Protocol. There seemed to be an intention in the Protocol to give the PAP at some time in the future full legislative powers. However, the timing for the devolution of the legislative powers by the Assembly was unclear in the Protocol. Again, the ultimate intention seemed to elect the members of the PAP through adult suffrage. The meaning of the "first term" of the Assembly also needed clarity.

4. Consideration of the Pan African Protocol

The Speaker explained that the Protocol provided for revision after five years and thereafter every ten years. The implication was that the "first term" would be five years. The Protocol had been agreed by 46 Parliaments. In the process of agreeing the Protocol, there had been some compromises and negotiations. The initial intention was that the AEC Treaty would be implemented in 35 years time. In that regard the Parliament would have come into being after 2010. However, it was suddenly decided within a year that the process of implementing the Treaty would go ahead. The first draft of the Protocol intended to establish a legislative body, however, the union was not in place, its powers had not be defined and questions of sovereignty had not even been discussed. She stated that the Protocol in its current form was a compromise between all the different views. The reason that South Africa strongly opposed a Parliament with legislative powers, was that there could not be legislative powers until such time that there was agreement on what would be legislated.

She advised the meeting that the Protocol had not yet been tabled. The latest indication was that it would be tabled on Thursday, 14 June 2002. She also asked staff to integrate the reports of the commissions.

Article 1 - Definitions
The Speaker suggested that in the rules of the PAP, the Working Group should make a proposal regarding what a deliberative organ should be. Some of the questions that should be raised are: Are deliberative organs law making bodies? Or Are they advisory bodies?
Dr Geldenhuys asked whether it would be possible to create a provision in the rules which could not get into the Protocol. The Speaker stated that the rules would shape and interpret some of the articles of the Protocol. She added that one of the research projects would investigate the rules of multilateral parliaments.

Mr Eglin clarified the fact that the Working Group would produce a report recommending ratification and the other report would, inter alia, highlight certain matters which might be dealt with in the rules including those matters which created legal difficulties for South Africa because of its constitution. He expressed concern that there was also no legal body that had been established to deal with the interpretation of the Protocol.

Adv Madasa suggested that in considering a deliberative organ, article 7 (dealing with incompatibility) should be taken into account. He mentioned that, in his understanding, a deliberative organ could not be an organ of the Executive.

The Speaker suggested that the point raised by Adv Madasa, and other points that needed a detailed discussion should be noted. When dealing with the rules, the Working Group would have to revisit them.

Mr Eglin pointed out that there was inconsistency in the references between the Constitutive Act and the Protocol. The Protocol consistently made references to the OAU/AEC. The Speaker said that the AU would take a decision that would incorporate everything of the AEC structures into the AU.

Article 2 - Establishment of the PAP
Adv Madasa noted that the language used in the Article made it unclear whether it was the aim of the parties to the Protocol or that of the PAP, to evolve into full legislative powers. The Speaker replied that there was no way that a Parliament could give itself legislative authority. The authority should come either from a constitution or by delegation. In the case of the AU, the Assembly would be the executive authority charged with giving such powers. Mr Eglin asked if the article meant that the Assembly would be precluded from delegating any legislative power until the member states had given it authority to do so. Adv Meyer replied that the PAP could not be given legislative powers unless the Protocol was amended and the amendment procedure


required two-thirds majority of member states to agree to the amendment. The Speaker added that the Assembly could simply determine that the matter be proceeded with.

The Speaker pointed out that amendments to the Protocol would take place after five years and thereafter but the PAP could convene a review meeting after the first five years. She asked whether the amendments would have to go back to the Assembly or directly to the member states. Adv Meyer replied that the Protocol could be amended by the Assembly and must also be ratified by two-thirds of member states.

Article 3 - Objectives
Ms Hajaig mentioned that article 3(6), (7), (9) were very general. Adv Meyer suggested that the matter could be better addressed in the rules. Article 3(2) and (3) also constituted two important aspects for the NEPAD processes. The Speaker asked if it was the sense of the meeting that the rules of the PAP should be designed to ensure the implementation of the objectives of the Protocol (The meeting agreed).

Prof Turok noted that the objectives of the PAP were important and the report of the Working Group should highlight that fact. These objectives were fundamental and had a long background and Parliament should be aware of that. Adv De Lange suggested that there was a need to study closely the executive structures of the AU. The PAP should consider how it should relate to the executive structures and then decide what committees it needed to have. The Deputy Speaker reminded the meeting that the President had asked Parliament to assist in conceptualizing what form the various organs of the AU should take. Adv Madasa suggested that the PAP should take guidance from the matters to which the Assembly would have agreed on. Prof Turok mentioned that the whole exercise as captured in the objectives was the unification and integration of Africa and therefore the objectives were fundamental in the process. He said that two parallels were emerging - the one were the legal and constitutional aspects of the Assembly and on the other hand NEPAD was also part of the picture and the two parallels were working together. The Speaker reminded the meeting that only 4 organs of the AU would be in place at the Summit and the Working Group should also consider the rules of these 4 organs with a view to advising the Executive.

Article 4 - Composition
Ms Motubatse mentioned that there was a need to define the nature of a deliberative organ and that the rules should deal with the matter. The Speaker suggested the PAP should try and shape the deliberative organ to the extent possible within the rules. Ms Hajaig said that the issue of gender representation should also be dealt with in the rules.

Article 5 - Election, Tenure and Vacancies
The Speaker suggested that there was a need for a mechanism within the rules of procedure (Parliament-RSA) to ensure accountability to Parliament by members of Parliament. There had been instances where SA representatives on the SADC-PF Executive did not attend meetings for over a year.

Adv Madasa added that there was a need to define "misconduct" and that the rules should also deal with this matter.

Article 6 - Vote
The detail of the article to be dealt with at the next meeting.

Article 7 - Incompatibility
The detail of the article to be dealt with in the rules.

Article 8 - Privileges and Immunities of PAP
The detail of the article to be dealt with at the next meeting.
Article 9 - Parliamentary Immunities
Adv Meyer indicated that in order for the immunity to have internal working in South Africa, there would have to be legislation to that effect or it would have to be a "self-executing" provision.

Article 10 - Allowance
The Speaker explained that the view was that there should be no additional salary for being a member of the PAP but only an allowance.

5. Conclusion

Prof Turok suggested that a brief memorandum should precede the Protocol when it is presented to Parliament. The Speaker asked that Prof Turok should help draft the memorandum.

The meeting adjourned at 16:10.

Appendix 1:
Draft Report of the Commission on Legal/Judicial Implications of the Protocol*
11 June 2002

Methodology

The Commission considered the Protocol article-by-article, commented on any concerns that arose and made recommendations where appropriate. For the purpose of reporting, those discussions and recommendations are organised according to themes.

Summary of recommendations

The Commission recommends that:

The definitions are brought into line with the institutions of the AU by amending the Protocol in due course.
The Assembly amends the Protocol so as to provide for its legislative powers to evolve simultaneously with decisions taken by the Assembly on those decided issues.
The permanent composition of the PAP by members of deliberative organs of Member States should be reviewed to ensure that membership to the PAP founded hereon is limited to an initial period while ensuring that gender representation and diversity of political opinion remains.
Discussions around the Rules of Procedure of PAP should start as soon as possible, possibly at the meeting of Parliamentarians in Durban in July 2002. The rules should also provide for procedures that the PAP should follow in performing its consultative and advisory functions, as well as to provide for the manner in which Rules of Procedure are adopted and the quorum requirement.
National legislation be drafted to extend to South African delegates the immunities and privileges they enjoy under the Protocol.
The implementation of allowances of PAP members is monitored so as to ensure that the PAP can function according to the Protocol.
The Protocol should be amended to reflect that the President and Vice-Presidents should be accountable for the management and administration the affairs and facilities of the PAP. The Clerks and Deputy Clerks should be responsible for management and administration the affairs and facilities of the PAP.
The Addendum to the Protocol that set out the Oath of Office is drafted as soon as reasonably possible. The meeting of Parliamentarians in Durban in July 2002 should consider commencing work on this Addendum.
It is recommended that South Africa offers to host the PAP.
Possibilities are explored to emphasise African Languages in as working languages of the PAP.

Discussion on issues relating to legal interpretation

The definitions in article 1 refer to terminology found in the Treaty establishing the African Economic Community. Although article 33(2) of the Constitutive Act of the African Union (AU) provides a mechanism to resolve apparent ambiguities in the legal interpretation of the Protocol, the terminology creates confusion as the Protocol stands at present.

Recommendation: It was recommended that the definitions be brought into line with the institutions of the AU by amending the Protocol in terms of article 24 in due course.

Discussion on the legislative powers of the PAP

The stated "ultimate aim" of the Pan-African Parliament (PAP) in article 2 is to evolve into a body with full legislative powers. Article 2(3), as read in the context of article 17(2) of the AU Treaty, makes it clear that such evolution must take place with amendments to the Protocol. Article 24 provides for amendments to the Protocol.

Here is a concern that there is no indication in the Protocol of a time frame for the evolution to take place. As a two-thirds majority of the Assembly of Heads of State is necessary to effect an amendment to the Protocol, evolving to a legislative body is out of the hands of the PAP and instead depends on the Assembly.

Similar concerns were raised around the concepts "interim period" and "first term" found in article 4(1) and 5(2) respectively. These terms are not defined and do not seem to bind the Assembly to act within a timeframe regarding the evolution of the PAP into a body with full legislative powers.

The provision that membership to the PAP depends on membership to a Member State's National Parliament or any other deliberate organ appears to demarcate a period for the PAP on the one hand (article 5(3) & (4)). On the other hand, an elected or designated member of a "deliberative organ" could remain member of the PAP for life and thus article 5 provides no indication of a period either.

Recommendation: It is recommended that the Assembly amends the Protocol so as to provide for its legislative powers to evolve simultaneously with decisions taken by the Assembly on those decided issues.

Discussion on composition of PAP

The composition of the PAP by members of any deliberative organ of Member States is a pressing concern (article 4(3) and 5(3)). However, it was pointed out that article 7 entrenches the doctrine of separation of powers by providing that membership to the PAP is not compatible with the exercise of executive or judicial functions in a Member State.

It was pointed out that article 4 is one sentence and thus the qualifier in the first phrase - "interim period" - could apply to the entire article. From this perspective, quotas to ensure gender and pluralist representation, as well as composition based on membership to a deliberative organ, will be limited to the undefined initial period until the members of the PAP are elected by universal adult suffrage in terms of article 2(3).

Recommendation: If the term "initial period" does not apply to the entire article, the permanent composition of the PAP by members of deliberative organs of Member States should be reviewed in terms of article 25 to ensure that membership to the PAP according to article 4 is limited to an initial period. Article 4 should be amended to reflect this, while ensuring that gender representation and diversity of political opinion remains.

Discussion of the Rules of Procedure and the privileges and immunities of the PAP

Article 5(4) refers to grounds that terminate membership to the PAP. The implementation of these grounds (eg. misconduct) depends on Rules of Procedure of the PAP as well as the privileges and immunities of members of PAP.

Article 12 provides that the PAP shall adopt its own Rules of Procedure on a basis of a two-thirds majority of all its members. Similarly, article 12(11) provides that a simple majority constitutes a quorum. There are concerns whether "all its members" refer to Member States, States who has signed but not ratified the Protocol or individual members of the PAP. Similar concerns relate to the meaning of "simple majority".

Article 8 of the Protocol provides for the powers and immunities of members of PAP. Article 9 extends these immunities to the jurisdictions of respective Member States. Thus, members of the PAP may not be subject to civil or criminal proceedings arising from comments made by him or her in the PAP in their home countries. Concern was raised whether these provisions are self-executing in terms of section 231(4) of the Constitution. Concern was also raised whether the implementation of this provision could conflict with the Bill of Rights.

Recommendation: Discussions around the Rules of Procedure of PAP should start as soon as possible, possibly at the meeting of Parliamentarians in Durban in July 2002. The rules should also provide for procedures that the PAP should follow in performing its consultative and advisory functions, as well as to provide for the manner in which Rules of Procedure are adopted and the quorum requirement.

Recommendation: If articles 8 and 9 are not self-executing, it is recommended that national legislation be drafted for it to become law in South Africa.

Discussion on parliamentary allowances

Article 10 seems to provide only for the reimbursement of expenses of members to the PAP. The concern here is that members of the PAP from countries that pay their parliamentarians or members of deliberative organs well will enjoy an advantage over others. This could have a chilling effect on the quality of participation by members from Member States paying less well. It could also be prohibitive.

Recommendation: Although the provision limiting allowances to expenses was deliberately inserted, the effect thereof must be monitored so as to ensure that the PAP can function according to the Protocol.

Discussion of the officer-bearers and the Bureau of the PAP

The definition of "Bureau" in article 1 refers to article 12(6) of the Protocol. It was pointed out that that article refers to Clerks, Deputy-Clerks and other staff to the PAP. However, article 14(4) gives the Bureau the power to close sittings of the PAP, which is otherwise open. It was further pointed out that this mistake has been corrected in the latest version of the Protocol to refer to article 12(5) that provides for a President and four Vice-Presidents elected from members of the PAP.

There are concerns over the roles of the President and Vice-Presidents. The duration of their offices, as with normal members, are dependent on their terms of offices in their respective Member States. As with normal members, the possibility exists that these officers could occupy those positions of the PAP for a disproportionate long time.

A further concern was raised as to the function of the President and Vice-Presidents. Whereas article 12(5) states that they are responsible for the management and administration the affairs and facilities of the PAP, article 14(2) provides that ordinarily the PAP shall meet at least twice a year for sessions of a period of up to one month. There are thus concerns on how these office bearers will manage their roles as well as their roles back in their home countries.

Recommendation: The Protocol should be amended to reflect that the President and Vice-Presidents should be accountable for the management and administration the affairs and facilities of the PAP. The Clerks and Deputy Clerks should be responsible for management and administration the affairs and facilities of the PAP.

Discussions around the Oath of Office

Recommendation: Article 13 provides for the Oath of Office. However, as the Oath must be taken prior to taking office, it is important to the Addendum to the Protocol that should set it out, be drafted as soon as reasonably possible. The meeting of Parliamentarians in Durban in July 2002 should consider commencing work on this Addendum.

Discussions around the seat of the PAP

Recommendation: It is recommended that South Africa offers to host the PAP.

Discussions around the working languages of the PAP

Recommendation: As there were concerns that too little emphasis is placed on African Languages as working languages of the PAP, it was recommended that possibilities are explored to emphasise African Languages in this regard.

Discussions around the entry into force and amendments of the Protocol

Note: There was a call to determine just how many States have ratified the Protocol.

Note: By ratifying the Protocol, South Africa agrees to be bound by any amendment in terms of article 24 whether or not South Africa agrees with the amendment.


Appendix 2:

Draft Report of the Commission on Political Implications

PAN-AFRICAN PARLIAMENT PROTOCOL

Chairperson: Dr Z P Jordan

In attendance:

Ms D Motubatse
Ms F Hajaig
Dr B L Geldenhuys
Ms M A Seeco
Dr Z P Jordan

Advocate A Meyer briefed the commission.

Methodology

The Commission considered the Protocol article-by-article. The report is therefore organized according to articles. For the purposes of reporting, articles on which no political implications were identified have been indicated as such.

POLITICAL IMPLICATIONS

Article 1 - Definitions

No political implications.

Article 2 - Establishment of the Pan African Parliament

Relationship between the Pan-African Parliament and the Executive structure (Assembly) of the AU needs to be defined. Concern was raised that the Assembly may not heed the recommendations and decisions of the PAP.

Recommendation: The powers and functions of the PAP in that context need clarification.

International agreements have an effect on a country's sovereignty. When the Parliament becomes a legislative body, a considerable amount of sovereignty would be ceded; however, this cannot happen without amending both the Protocol and the SA constitution.

There is a need to ensure that the PAP, though consultative and advisory, fits in or locks in with the rest of the AU organs. Concern was raised that the Constitutive Act is silent on how the PAP will relate to organs of the AU other the Assembly of the Heads of State.

Recommendation: The rules of procedure should possibly address the matter.

The Protocol does not contain clear transitional provisions dealing with transition from the OAU to AU. The Protocol only refers to OAU/AEC.

Recommendation: The references need to be brought in line with the Constitutive Act of the AU.

Between the PAP and the Assembly, who would be the ultimate decision maker? Concern was raised about the possibility of the PAP not being able to exercise oversight over the AU.

Article 3 - Objectives

No political implications.

Article 4 - Composition

The precise meaning of Article 4(3) (deliberative organ) is unclear, and guidelines on its implementation may be necessary. Unlike a conventional Parliament, a deliberative organ may not necessarily be representative of diverse political opinion.

Recommendation: The rules of procedure should elaborate on how the member states will reflect the diversity of political opinion in their respective national Parliaments or deliberative organs. The situation of a deliberative organ without legislative powers should be clarified.

Article 5 - Election, Tenure and Vacancies

Representation - It was suggested the same basis should be used for SA delegation to PAP as that used in the SADC Parliamentary Forum. Working Group should consider the details.
Term - A deliberative organ may have an indefinite term. Implications of this possibility should be considered.

Article 6 - Vote

The implications of a member voting in his or her personal and independent capacity may need consideration, especially when the vote is likely to contradict the constitutional principles of his or her country.

Article 7 - Incompatibility

Members of the Executive cannot be part of the delegation to the PAP.

Article 8 - Privileges and Immunities of Pan-African Parliamentarians

No political implications.

Article 9 - Parliamentary Immunities

A member of the PAP may not be subject to civil or criminal proceedings arising from comment(s) made by him or her in the Parliament. It should be established whether this provision of the Protocol is "self-executing" within the meaning of section 231(4) of the South African Constitution.

Recommendation: The provisions of this article may also need to be incorporated into the domestic laws of member states including South Africa.

Article 10 - Allowance

No political implications.

Article 11 - Functions and Powers

The provision that the legislative powers of the PAP are to be defined by the Assembly is questionable. Why should it be the Assembly of the Heads of State that decides what legislative powers the Parliament should have? The fact that the Parliament will not have a final say on its budget is also cause for concern.

Article 12 - Rules of Procedure and Organisation of the Pan-African Parliament

Consideration should be given to the meaning of the phrase "all its members" in article 12(1). Does "all its members" refer to member states or individual members of the PAP. What happens where a member state has ratified the Protocol, but has not designated its Pan-African Parliamentarians or the full complement.

Article 13 - Oath of office

No political implications.


Article 14 - Sessions

No political implications.

Article 15 - Budget

No political implications.

Article 16 - Seat of the Pan-African Parliament

Recommendation - South Africa should host the Pan-African Parliament.

Article 17 - Working Languages

No political implications.

Article 18 - Relationship between the PAP and the Parliaments of Regional
Economic Communities and National Parliaments or Other
Deliberative Organs.

The nature of the proposed relationships would need to be politically managed.

Article 19 - Withdrawal

No political implications.

Article 20 - Interpretation

No political implications.

Article 21 - Signature and Ratification

No political implications.

Article 22 - Entry into Force

No political implications.

Article 23 - Accession

No political implications.

Article 24 - Amendment or Revision of the Protocol

The fact that it is the Assembly, and not the Parliament, which decides on the amendment or revision of the Protocol needs consideration.

Article 25 - Review of the Protocol

No political implications.



Appendix 3:
PROTOCOL ESTABLISHING
THE PAN AFRICAN PARLIAMENT (PAP)

COMMISSION ON SOCIO ECONOMIC IMPLICATIONS
10 JUNE 2002

Convener: Hon Ms F Hajaig

Hon Deputy Speaker. Ms B Mbete
Hon Mr. J Seremane
Hon Dr R Davies

Main Points of Discussions

Socio-economic considerations are dependent on the functions and powers given to the Pan African Parliament (PAP) and associated structures. The following questions emerge:

What is the oversight function of PAP with regard to socio-economic issues?
What functions and powers should it have?
What is the nature of this oversight function?

Oversight Function

Currently the protocol does not contain many articles relating to socio-economic issues and hence the need to focus on the role of PAP and its structures and then the functions of these structures. Articles of the Protocol that deal with socio-economic issues include Article 3(6), (7), (9); Article 11(2), (7); Article 15 and Article 18.

There is a need to define the powers and privileges of PAP as an oversight body and hence identify structures for it to be effective e.g. there is no provision that entitles PAP to subpoena persons in order to gather information.

Article 11 (2) of the Protocol deals with the budget of the PAP and the AU. PAP has an advisory and consultative role in this regard. This role needs to be more clearly defined.

The rules of procedure allow PAP to define and establish its powers and therefore there is a room for PAP to establish meaningful oversight powers.

Gender Representation

Notwithstanding Article 4 (2) of the Protocol, which states that each member State shall be represented in the PAP by at least one of whom must be a woman, it was recommended that PAP might include rules on gender representation by Parliaments of Africa.

Linkages

There is currently a link between PAP and the Assembly. However, more consideration must be given to the relationship between PAP and the other organs.
There is also a need to establish linkages with other strategic socio-economic institutions, NGO's and civil society organs in Africa.



The strengthening of regional economic communities or blocs was identified as a priority.

There is a need for research to be conducted on the relationship and interaction between the Parliaments and regional economic communities. Results of the research commissioned, will be incorporated into the input of the working group and commission.

Structures of PAP that relate to socio-economic considerations need to be established and these must interact with relevant structures.

Need to consider the developments in the AU in relation to New Economic Partnership for African Development (NEPAD).

Definition of Terms

There needs to be a common understanding of terminology in the protocol e.g. meaning of deliberative organ and what constitutes representative government.

The objective of this is to avoid ambiguity and contribute towards a collective vision.

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