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WORKING GROUP ON THE AFRICAN UNION (National Assembly)
26 August 2003
These minutes were produced kind courtesy of the Mr M Xaso of the Table Staff.
Chair: Dr F Ginwala
Davies, R H
Matthee, P A
Mbuyazi, L R
Mtsweni, N S
Van Wyk, A
Vilakazi, J N (NCOP)
Apologies: Seremane, J; Sithole, D J
Staff in attendance: Meyer, L (Assistant Secretary); Jenkins, F and Lenzie, D (Parliamentary Law Advice Office); Mansura, K, Xaso, M and Adonis, J (NA Table); Gabriel, L (Information Services Unit).
1. Adoption of Agenda
The agenda was adopted.
2. Letter on meetings of the Working Group
The Speaker asked that a letter be written to all members of the Working Group indicating that the Working Group would be holding meetings every Tuesday, from 08:00 to 10:00 until the end of the current session.
3. Consideration of minutes of 22 August 26, 2003
The minutes were noted and the Speaker asked members to indicate corrections, if any, to the Secretariat.
4. Work Programme
The Speaker asked members to consider the work programme as circulated, adding that some of the dates might need to be changed.
The Working Group would need to table one or two reports with options in the National Assembly. The reports would not require a decision of the House as such. However, these reports would be used by party caucuses as a basis for discussion. The Working Group would need to discuss on an ongoing basis the election of delegates as well as the issue of mandates and accountability. She indicated that it would be pre-emptive to explicitly discuss preparations for the inaugural session as an agenda item at the present moment. In this regard, the Working Group needed to await the outcome of the ratification process. However, staff should in the meantime continue with preparations for the establishment of the PAP. She suggested that the item on "popularization of the PAP", which in terms of the work programme was scheduled for 23 September, be brought forward.
- In its report to the House, Working Group to present options on the election of delegates.
- Report of the Working Group to be circulated among the members of the Working Group before tabling.
- The Work Programme as prepared by staff to be used as basis for discussions in meetings.
- Report to incorporate the Work programme.
5. AU Working Group of the NCOP
The Speaker reported that she had spoken to the Chairperson of the National Council Of Provinces regarding the participation of the NCOP Working Group in preparations for the establishment of the PAP. In their discussion, the NCOP Chairperson had indicated that the National Assembly Working Group could proceed so long because the NCOP Working Group had been experiencing difficulty with scheduling meetings. The Speaker mentioned that the Presiding Officers would begin structured discussions on the role of the two Houses in AU processes and report on a process because both Houses needed to agree on the process. She clarified that the Working Group would in its deliberations only discuss the process of electing candidates but not the actual candidates. Mrs Mbuyazi suggested that the matter of electing delegates to the PAP be referred to party caucuses for discussion with a view to formulating positions.
- Presiding Officers to begin structured discussions on the role of the two Houses in AU processes and report on a process.
- Working Group to explore the options re election of delegates before referring it to caucuses.
6. Election options
Among the election options submitted by the staff to the Working Group, option 4 (c) suggested that three out of the five delegates to the PAP could serve the full five- year term and that the other two serve rotating terms of one year each. The Speaker expressed reservations about the compatibility of this option with the PAP Protocol. She said that the matter, if permitted, could be a private arrangement among parties within Parliament. The 2004 general elections could also change the current composition of parties in the House.
Ms Mtsweni asked whether a delegate who had served a full five-year term could be re-elected for a second term. The Speaker replied that whereas the Protocol did not contain a specific provision on the issue, there was nothing preventing a delegate from continuing if elected by Parliament. It would be up to individual Parliaments to decide on the matter. She added that once the sufficient number of ratifications had been attained, the Chairperson of the AU would determine the starting point of the PAP and that session/term would last for five years. The term of each delegate would be linked to the term of the Parliament that elected him or her and this would be one of the instances that lead to termination of membership. Article 5 of the Protocol also provided other reasons leading to the termination of membership of a delegate. Again, if for some reason a State ceased to be a member of the African Union, the membership of a delegate to the PAP would be terminated. Mr Abrahams asked whether the election/designation of a member to serve in the PAP would lead to a vacancy in the relevant House.
The Speaker explained that delegates to the PAP would remain members of their respective Parliaments. The PAP would in the initial stages meet for only two months in a year. It would be only in the second, third or fourth term that it could consider having sessions running for more than two months in a year. The PAP could review the situation around membership after the first five years. In response to a question by Ms Rajbally on whether the election of candidates would only take place after the 2004 elections, the Speaker stated that Parliament would, as soon as the sufficient number of ratifications had been attained, proceed with electing delegates. After next year's elections, there would be re-election of candidates.
The Deputy Speaker suggested that it was necessary to begin consultations with the NCOP on the number of delegates to come from each House. She said that a Joint Sitting of the two Houses would be an appropriate forum to elect the delegates. The election could be preceded by consultative processes among parties in each House. Holding a Joint Sitting for this purpose would help to popularize the idea of the PAP among the South African public. The Speaker indicated that while the Joint Rules did not provide for decisions to be taken at a Joint Sitting, it was still within the authority of members to propose an amendment to the Rules. Parliament could decide to include in the Rules a provision to the effect that "delegations to the PAP would be elected at a Joint Sitting". The very process of amending the Rules would generate interest, publicity and emphasis on the importance that Parliament gave to the PAP. A Joint Sitting would also clearly indicate that the mandate to the five delegates was a Parliamentary mandate, as opposed to a mandate coming from each House.
- Legal advisers to consider the compatibility of Option 4(c) with the PAP Protocol.
- Joint Rule 13(2) to be amended, if necessary, to enable election of members at a Joint Sitting.
- Staff to draft a rule providing for the election of delegates to the PAP at a Joint Sitting and to consider the constitutionality thereof.
- The issue of a Rule amendment to form part of the report to the House.
- Parties to be asked to discuss the proposed amendment.
- Report of the Working Group to include the relevant provisions of Protocol to familiarize members with the Protocol.
7. Members of the Executive vis-à-vis membership of PAP
The Speaker explained that Members of the Executive would be excluded from the PAP delegation. She indicated that article 7 of the Protocol provided that membership of the Pan African Parliament shall not be compatible with the exercise of executive or judicial functions in a Member State. In the South African context, Ministers generally do not participate in parliamentary delegations.
- Article 7 to be included in the report under elections and membership.
8. Role of Presiding Officers in Parliamentary delegations
The Deputy Speaker mentioned that there was a need to consider the status and role of a Presiding Officer who could be part of the delegation to the PAP. In considering the issue, the role of the leader of the delegation vis-à-vis that of the Presiding Officer should also be considered. The Speaker agreed, adding that the matter had previously been discussed and there had been understanding that Presiding Officers represented the institution (Parliament) rather than a party.
- Parties to revisit/discuss the role of Presiding Officers in delegations.
- Speaker to also write to Chief Whips requesting that parties consider the number of PAP delegates that should come from each party.
9. African Peer Review Mechanism
The Speaker indicated that the Department of Foreign Affairs still needed to provide information on the Peer Review Process. Among others, the report should provide information on the type of mechanism South Africa had put in place to deal with the Peer Review Process, including the role to be played by Parliament in this regard.
- The Speaker to write to the Department of Foreign Affairs highlighting issues that the Department must provide information on (taking into account the deliberations of the Working Group on 22 August 2003).
10. Election Rules
The Speaker asked that the Rules be explored with a view to clarifying the steps that should be undertaken prior to a Joint Sitting. Mr Mansura pointed out that the NCOP process of voting (provincial mandates) could pose challenges if the delegates were to be elected at a Joint Sitting. The Speaker indicated that whereas election of candidates by a Joint Sitting was desirable, however, Parliament should be careful not to breach the Constitution.
- Provision to be made in the Rules for a procedure to elect delegates.
- Rules provision to also indicate whether the election would be conducted by secret ballot.
- Rules to spell out the nomination process e.g does each House nominate prior to the Joint Sitting? or Are nominations done in the Joint Sitting?
- Speaker to request the NCOP to also consider the issue of election of delegates.
11. Oath of Office
Ms Hajaig suggested that if delegates had to take a separate Oath other than the one taken at the PAP, that oath should be the same as the one taken when a person became a Member of Parliament.
- Current Oath to be relooked at with a view to possibly adding the aspect of "affirmation of loyalty to the PAP". This to be done in view of the new Parliament in 2004.
12. Filling of vacancies
The Speaker indicated that it was necessary to get clarity on how Parliament would fill a vacancy within the PAP.
- Law advisers to consider the issue re filling of vacancies and present a document for consideration.
13. Debate in the National Assembly on PAP
The Speaker suggested that a debate be scheduled before the end of the current session on the vision of the PAP. Another debate on the PAP in general would be scheduled in the third or fourth week of November 2003.
- Report of the Meeting of African Parliaments and the document on the vision of PAP to be circulated.
- A debate to be held in the last week of September 2003.
- Deputy Speaker to raise the matter of the debate at Programme Committee on Thursday, 28 August.
14. Basis for recall
The Speaker asked members to consider whether the issue of recall of delegates should be included in the Rules and also the basis for recall. Mrs Mbuyazi suggested that behavioural problems would be one reason for recall. Ms Mtsweni added that moving outside of an assigned mandate could be the other reason. Dr Davies sought clarity on who would recall a delegate. He asked whether this would fall within the powers of the national Parliament or the party. He also asked whether the PAP would have powers to effect disciplinary measures on a delegate. He suggested that failure by a delegate to carry out assigned functions should also lead to recall. Mrs Van Wyk suggested that misconduct should be a reasonable basis for recall. Ms Hajaig raised the need for clarity on what would constitute misconduct. The Speaker agreed, adding that a conduct that brought Parliament into disrepute should lead to recall. In responding to Dr Davies's question, she said that in the context of the PAP, recall would be the decision of Parliament. Adv Jenkins cautioned against including in the Rules instances that would constitute misconduct. He indicated that such an approach could lead to a situation whereby a recalled candidate could take Parliament to court on the basis of administrative justice.
- A provision on a procedure for "recall" to be incorporated into Rules.
15. Voting and Mandates
Mr Matthee sought clarity on the kind of voting that would be used at the PAP. The Speaker responded that there was no mechanism for voting in place yet.
She asked members to consider whether a structure for the processing of AU issues should be created within Parliament. The other issues that needed consideration were a regional mechanism for regional caucuses and accountability mechanisms for the Executive. Members should consider whether Parliament would need mechanisms similar to the ones obtaining in some European countries, such as Finland and Sweden, whereby Ministers table agendas in respect of multilateral forum meetings in a parliamentary committee before attending those meetings. It was important to develop some principles on holding the Executive accountable for the types of decisions that were usually taken at multilateral forums. Dr Davies suggested that the Working Group should be solidified as a committee on African Union to process African Union related issues.
- Working Group to propose that it should become a committee on the African Union.
- This matter (structure) to be clarified before the PAP comes into operation.
- Research by Mr P Lilienfeld on mandates in respect of the PAP to be circulated.
- Staff to provide comparative information on how other national Parliaments provide/deal with their delegates to regional and continental Parliamentary bodies. Rules of Ecowas, East Africa Legislative Assembly and EU Parliament to be considered (a document with different options to be compiled).
Adjourned at 09:50
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