Rules of Pan African Parliament: briefing

Meeting report

FOREIGN AFFAIRS COMMITTEE: AFRICAN UNION SUBCOMMITTEE
6 August 2004
RULES OF PAN AFRICAN PARLIAMENT: BRIEFING

Chairperson: Mr D Sithole (ANC)

Relevant document
Draft Rules of the Pan African Parliament: Working Document of Parliament's Information Services and Research Section (not available)

SUMMARY
Note: Due to an oversight, the first briefing of 4 August that covered Rules 1 to 12, was not minuted by PMG.

The Committee was briefed by Parliament's Information Services and Research Section on Rules 13-27 of the draft rules of the Pan African Parliament (PAP). Members questioned whether Rule 13 should establish an oversight function for the PAP over NEPAD and whether the PAP should be allowed to draft rules for other organs. Rule 14 dealt with the powers and functions of the PAP and Members proposed that it include the power to establish commissions to investigate matters before deciding on them. Rules 17 and 18 dealt with the election of members to the Bureau, and Members stated that the Bureau must be sufficiently gender representative. Rule 19 detailed the functions of the Bureau and Members asked whether the Bureau had the duty to inform the public of its proceedings and operations. Rule 20 dealt with the powers and functions of the PAP and Members stated that the powers and functions of the Vice-President should be specifically spelt out in the provision. One of the duties of the Vice-President should be to ensure a healthy relationship between the PAP and the Economic, Social and Cultural Council (ECOSOCC).

Rule 23 detailed the establishment of the committees of the PAP and marked the move from a regional representation structure to an individual representative model, and the Committee left the issue of whether rapporteurs would be required by committees as unresolved. Rule 25 dealt with the modalities of the operations of the committees. The Committee agreed to the proposed conflation of Rule 25 and Rule 24. The Committee agreed to the proposed conflation of Rule 25 and Rule 24. and noted that the South African position differed from the proposed position in the Rules in that it allowed non-members of PAP committees to attend meetings of other committees but denied those members the right to vote in such meetings. South Africa's position is that the public should generally have observer status at all PAP Committee meetings. This differed from the position in the draft Rules. South Africa also differed on whether PAP MP's could participate in Committees of which they were not Members.

MINUTES
Briefing on Rules of Pan African Parliament
Dr Leon Gabriel, Head of Parliament's Information Services and Research Section, briefed the Committee.

Rule 13
Professor B Turok (ANC) stated that 13(3) was a very important provision and should be drafted very similarly to the actual charter, because it related to the nature and democratic functions of the Parliament.

Dr Leon Gabriel from Parliament's Information Services and Research Section, agreed. He stated that Rule 13(4) attempted to represent quite specifically what the Protocol had stipulated. Rule 13(5) attempted to consolidate a host of provisions currently contained in the Protocol.

Prof Turok asked whether NEPAD was accommodated in this document and questioned whether it should be at all. He stated that he believed that the Pan African Parliament (PAP) would want to exercise oversight over the manner in which NEPAD was implemented across the continent.

Dr Gabriel replied that the rules referred to the programmes and activities both of the regional economic communities as well as of the African Union (AU) itself. The Protocol did not refer to NEPAD because it was drafted before NEPAD documents were drafted, but this did not preclude the addition of NEPAD to the programmes of the AU.

Prof Turok stated that it was important especially in view of the fact that the Protocol was drafted before NEPAD was established, that it be inserted. It was important that PAP come to recognise its major role in the legitimisation, support and subsequent funding of NEPAD.

Dr Gabriel responded that this matter was noted and could be revisited when the structure and functions of the PAP Committees were discussed. He stated that discussions ensured under Rule 13(7) as to whether the PAP should be looking into rules of procedure, because rules of procedure were by their nature for the internal functioning of the organs. The contention was that it would instead be more important to look at programmes, activities and functions of those organs.

An amendment was however not proposed to Rule 13(7) because there appeared to be general consensus in the Ad Hoc Rules Committee in Addis Ababa that the Committee was comfortable that the Parliament would look at the rules of the other organs.

Dr S Pheko (PAC) asked whether other African Parliaments were considering the same document as the one this Committee was currently discussing, and asked whether they were effecting the same amendments as well or whether this Committee was making these amendments in a vacuum.

Mr K Bapela (ANC) disagreed with the contention that the PAP would draft the rules of procedure for other organs. Those organs should compile those rules themselves and the PAP would then monitor the progress.

Dr Gabriel responded that by the time the Committee in Addis Ababa reached Rule 13 there was very little discussion on the actual provision, and his own assessment was that there insufficient insight was given into this issue as Members seemed to merely accept it in order for the meeting to move forward.

Ms F Hajaig (ANC) stated that, in any event, the PAP was not mandated to draft the rules of other organs.

The Chair stated that this issue should be flagged, and questioned whether it would be correct for the PAP to question the rules of procedure of all other organs.

Dr Gabriel stated that Rule 13(8) was a forward-looking provision which dealt with the legislative functions of the PAP. It stipulated the advisory and consultative functions of the PAP, however the drafters were looking beyond these functions because the intention was for the PAP to have full legislative functions in the future.

The Chair agreed.

Dr Gabriel stated that Rule 13(9) made provision for any other incidental functions.

Rule 14
Dr Gabriel stated that this dealt with Article 11 of the Protocol which dealt with powers and functions of the PAP. Some of the references to important social and democratic issues in the Protocol have been omitted from the rules in as specific a format, and Rule 14(3) stipulated that the PAP may make recommendations and take resolutions on all matters relating to the AU and its organs. Members should thus give some consideration as to whether the Rules should specify some of those concepts for the development of Africa.

Prof Turok agreed that they must be included. More importantly PAP should have the power to establish commissions or task teams so that when it passes an opinion or makes a finding, it is done on the basis of work done by a group of members. Otherwise it sounds like a purely debating chamber, whereas it should actually examine matters in depth and not simply debate.

Ms Hajaig stated that Rule 23 did provide for Committees, and this would then cover Prof Turok's concern.

Prof Turok stated that the Committees would usually be Standing Committees which were permanent, whereas a task team was established to examine a specific matter in great detail.

The Chair stated that the provision was framed broadly enough to include the task teams referred to by Prof Turok because it did not specify the kind of committee to be established.

Dr Gabriel stated that Rule 14(4) empowered the PAP to call people to give evidence or to represent any of the organs of the AU or the regional economic communities, and was aimed at facilitating the discussions and investigations as it were of the PAP. Rule 14(5) granted the PAP the power to address any other matters that could arise in the discharge of its functions.

Rule 15
Dr Gabriel stated that this dealt with the internal composition of the PAP, and made provision for the Bureau which was established via the Protocol. The Bureau was really the President and the four Vice-Presidents, and provided for the Committees of the PAP and the secretariat.

The Chair noted that no concerns were raised with this rule.

Rule 16
Dr Gabriel stated that this rule looked at the Bureau specifically.

The Chair noted that no concerns were raised with this clause.

Rule 17
Dr Gabriel stated that this Rule dealt with the election of members of the Bureau and referred specifically to Article 12 of the Protocol which gave quite clear direction on the election of members of the Bureau. Rule 17(2) was taken directly out of Article 12 of the Protocol.

He stated that Rule 17(5) made provision for a Dean and according to the definition in the current rules, the Dean was the oldest member of the assembly and was therefore conferred with special functions and powers. The rule made provision for the Dean to preside over the swearing in elections and the swearing in of the President of the PAP. It was felt that this may be inappropriate and a note was inserted which stated that, apart from the fact that the Dean would in all likelihood be an ordinary member of the PAP, it was unusual for an ordinary member to swear in the President of the PAP itself. This would also create additional complications should the Dean be a candidate for election to the Presidency or should the Dean win the Presidential election. It was thus suggested that the Chair of the AU preside over all the elections of the President during any stage of the PAP.

Prof Turok proposed that the phrase "or his nominee" be inserted.

The Chair agreed and stated that this matter must be flagged.

Dr Gabriel stated that Rule 17(7) dealt with a provision in the Protocol which relates to the mainstreaming of gender and equity. It was considered in the first session to ensure that at least one of the five members of the Bureau must be a woman. The rules do not currently refer to one being a woman but do instead stipulate that one must be from the opposite sex, and a very lengthy and extensive discussion ensued at the second rules committee meeting where a number of members felt that the situation could arise where men were in the minority and here it would have to be ensured that at least one man was a member of the Bureau. The decision was thus taken to leave it as "at least one from the opposite sex".

The Chair proposed that a phrase a bit more dignified than "opposite sex" be used.

Ms Hajaig stated that the AU has taken a decision that all decision-making bodies should comprise of at least 50%, and she was thus not sure where the one in five came in.

Dr Gabriel reminded Members that this formulation was a compromised position in the second rules committee. There was also a strong view that if the President were a woman then the first Vice-President must be a man, but this was of course not acceptable. The rules do however require that the Vice-President be ranked according to the number of votes they receive.

The Chair stated that the use of the term "gender" was also found to be problematic by the Addis Ababa Committee because it was not sexual orientation-specific. A balance must be found between the outcomes of the votes received and the fact that the Bureau must be representative. He requested Dr Gabriel to brief the Committee on all the delegates of the PAP on 16 August 2004, as well as on this gender issue.

Dr Gabriel stated that this point was noted. He stated that Dr Ginwala had structured a ballot paper process that ensured that this type of situation would not arise, and this would be reconsidered.

Rule 18
Dr Gabriel stated that this dealt with the nomination of candidates to the Bureau, and perhaps Rule 18(1) could state "both should not be from the same sex" in order to accommodate the concerns raised earlier by Members.

Prof Turok expressed his concern with the use of the term "opposite sex" because it created difficulties. Instead the legal term "mutatis mutandis" should be used which meant "the other way around", as this would phrase it positively.

Dr Gabriel stated that this was noted, but his term would look at a more accommodating formulation because it has been trying to keep away from Latin terms. Rule 19(2) and (3) dealt with technical matters relating to the election process.

Rule 19
Dr Gabriel stated that this rule dealt with the functions of the Bureau.

Prof Turok proposed that the phrase "the Bureau shall determine decisions" be replaced with "the Bureau shall make recommendations or decide", as the current wording was not elegant.

Mr M Ramgobin (ANC) proposed that it instead stipulate "shall lay down and regulate" so that it created a positive obligation on the Bureau to follow up.

Dr Pheko proposed that the provision stipulate that the Bureau must determine regulations and procedures, because it could not determine decisions.

Dr Gabriel stated that these sentiments were being captured and would be considered for incorporation. Rule 19(2) marks the deletion of "agenda" because it was felt that the PAP would rather have a programme which would be determined by the Bureau.

Prof Turok asked whether there was any provision which obliged the PAP to inform the public of its activities and proceedings.

The Chair stated that the Protocol stipulated that the public would be allowed to observe

Ms Hajaig stated that the last clause of the Preamble obliged the PAP to do this, but was not sure where exactly with should be placed in the Rules.

Dr Gabriel stated that this would be considered, but it would probably be placed under Article 14 of the rules which dealt with the rules and functions of the PAP generally. He stated that Rule 19(7) really dealt with the Bureau's responsibility in terms of the management of the staff.

Rule 20
Dr Gabriel stated that this dealt specifically with the powers and functions of the President of the PAP.

Prof Turok agreed with the formulation.

Dr Gabriel stated that the phrase "any other functions that may be given to the Vice-President" was inserted as a catch-all provision, and the powers were not specifically stated. He asked whether Members felt that they should be spelt out.

The Chair stated that this would be important to ensure the Vice-President has functions to execute, rather than simply waiting for matters to be delegated to him.

Ms Hajaig proposed that one of those functions include "monitor the specific organs of the AU".

Prof Turok stated that the former Speaker always emphasises that the Economic, Social and Cultural Council (ECOSOCC), was the institution of civil society and Parliament was the link between the Assembly and the population. He questioned whether, if this was the case, this relationship should be incorporated into the Rules.

The Chair agreed that a link must be created.

Ms Hajaig suggested that either a single PAP committee or a cluster of committees could have ECOSOCC as the focus of their committee work.

The Chair agreed with Ms Hajaig that a mechanism must be devised that would incorporate ECOSOCC in order to bring those institutions closer to Parliament and closer to decision-making, rather than communicating simply via reports.

Ms Hajaig sought clarity of the nature of the relationship enjoyed by the PAP and the peer review mechanism, and suggested that there must be some kind of dialogue between the two.

Prof Turok stated that the peer review fell under NEPAD, and thus in so far as NEPAD reported to the PAP that was taken care of. The PAP's relationship with NEPAD and its relationship with civil society was totally different, and ECOSOCC would be used to keep civil society informed of the work done by the PAP.

Dr Gabriel stated that a compromise could be reached which included both notions in the Rules. There was a collective function amongst the four Vice-Presidents, and then specific targeted duties or functions would then be apportioned according to their individual ranking. Specific programmes or organs like ECOSOCC could then be given to one of the Vice-Presidents as a duty. It was important to note that the PAP has a role in civil society participation beyond ECOSOCC, and thus extended beyond organised civil society alone.

Rule 22
Dr Gabriel stated that this Rule dealt with the powers and functions of the presiding officer over the plenary or committee, and merely referred back to the powers elucidated in Rule 20. This rule would however have to be considered further to identify whether Rule 22 confers powers on chairpersons of committees which they should not have.

Rule 23
Dr Gabriel stated that this dealt with the establishment of committees. The Protocol speaks of a Parliament whereby Members were represented in their personal capacity, and the aim was to move away from regional representation in the PAP. Thus while there is an acknowledgement that Members came from different regions, the whole issue or regionalism should not constantly be harped on. Instead an institution that is continental should be developed.

Prof Turok stated that a compromise was needed here and a soft term was needed, perhaps "taking account of the need to be representative of the whole continent".

Dr Gabriel stated that a complication was caused by the size of the regions, as formulated by the AU. West Africa for example had 15 member states whereas North Africa had 6 member states, and thus the representation was skewed. The members were individual members of the PAP and the question was thus whether the region should designate them to a Committee or should an individual member be able to choose the committee s/he would want to serve on. It could be stipulated that each member must serve on no more than two committees, for example, and then develop a mechanism which allowed an individual member to identify his choices in order of preference.

Prof Turok asked whether it would be possible for committees to co-opt additional members to ensure representation across the continent.

The Chair suggested that the provision should take all these three elements into account: the regional concerns, the choice of the individual members as well as the fact that the Committee must have the power to co-opt members.

Dr Gabriel stated that the reference to the three rapporteurs in Rule 23(3) was deleted. They were considered unnecessary because the committee clerks should properly be developing the committee reports which would be submitted to the House. The presence of rapporteurs was a Francophone tradition and quite a high status was placed on being elected as a rapporteur for a particular committee, and the Ad Hoc Committee had a rapporteur who had quite a specific role to play in addition to the secretariat staff. It was however felt that in terms of the experiences of the AU the use of rapporteurs was not necessary, but this may well be challenged.

The Chair stated that rapporteurs served an important function because a secretariat that was not fully functional secretariat would not be able to provide all the needs of the committee. However a fully functional secretariat that takes comprehensive notes of the meetings would then negate the need for a rapporteur. These were the two possible scenarios.

Dr Gabriel stated that Rule 23 (6) referred to the two and a half year tenure for membership of a committee, and this was deleted because the membership period would change as the PAP changes. He stated that Rule 23(7) was deleted and relocated to the correct provision that dealt with voting.

Rule 24
Dr Gabriel stated that this rule addressed the procedure of committees. Rule 24(1) was retained even though its precise meaning was not clear.

Prof Turok explained that it derived from the British system and was not needed in the rules of the PAP, and should thus be deleted.

The Chair agreed that it be deleted.

Rule 25
Dr Gabriel stated that this rule dealt with the modalities of operations of committees whereas Rule 24 dealt with the procedures of committees, and the possible conflation of the two into a single rule was considered. It was however retained in the current formulation pending Members' input.

The Chair asked whether there was in fact a difference between modalities and the procedure of committees. He suggested that perhaps the two rules should be conflated.

Prof Turok expressed concern with Rule 25(3) and proposed that specific reference be made to the establishment of a task team or sub-committee, which was different from the actual Committee.

The Chair agreed. He stated that whatever the terminology used, the drafters must make it clear that the group constituted must be separate from the actual Committee. It must also be made clear that the group would then have a responsibility to report back to the actual committee.

Dr Gabriel stated that Rule 25(4) was inserted to guard against committees calling organs of the AU without the Assembly as a whole. Rule 25(5) was deleted because it was now incorporated into Rule 25(4). The new Rule 25(5) allowed for members who were not members of a particular Committee to attend such Committees, but were not allowed to vote. The discussions in Addis Ababa allowed them to attend as observers, and they would thus not be allowed to participate in discussions either. He stated that South Africa had a different view in that as long as those members were members of the PAP they would be able to participate in whatever discussion, but if they were not a member of the Committee they would not be able to vote.

The Chair stated that this concern was allied to the issue whether the proceedings of the Committee should be open to the public or not. Other Parliaments were of the view that the proceedings would be closed and only the end product would be made open to the public, but the South African Parliament is of the view that all proceedings must be open to the public. Committees such as the Intelligence Committees were not generally open to the public, but the South African approach was that all other Committees would generally be open to the public. The Committee would then have to apply to the President of the PAP for permission to have a certain Committee meeting declared a closed meeting. This matter has not been resolved yet.

Dr Gabriel stated that in summary then Rule 25(5) and (6) would then be amended to reflect the South African position as indicated by the Chair.

Rule 26
Dr Gabriel stated that this rule dealt with the decision-making process and procedure. This provision could be amended to require a two-thirds majority.

The Chair agreed. He suggested that the provision be amended to grant the Chairperson both an original and casting vote in the decision-making process.

Dr Gabriel agreed to effect the amendments.

Rule 27
Dr Gabriel stated that this dealt with the establishment of Committees.

Prof Turok suggested that the ordering of the phrases in Rule 27(1) was not very elegant and should be restructured.

Dr Gabriel agreed to effect this amendment.

Prof Turok stated that the phrase "human security" must be included in this provision, as it was critical.

The Chair agreed. He stated that the end of the document contained issues that cannot be dealt with during this meeting, and proposed that those issues be parked and that the Committee await the report from the delegation when they return from the Assembly. He requested Dr Gabriel to provide Members with a mini-report on the issues so that they could brief the delegation.

Ms Hajaig stated that the seating arrangements in the Plenary session should be done alphabetically, and not according to region.

Dr Gabriel stated that alphabetical seating by country was suggested. The ideal position would be an alphabetical order by name so that there would be total integration even across country delegation.

Prof Turok stated that Rule 27(8) was very important because the relationship between PAP and the AU was critical, and the sooner procedures were established for the consideration of reports of the AU by the PAP the better. This would create a sense of the meaning of the PAP as an organ of the AU.

Ms Hajaig agreed with Prof Turok and stated that Rule 27(8) should then instead be inserted right at the front of the provision, in Rule 27(1).

The meeting was adjourned.