Africa Correspondent
One of the first things that usually happen during illegal take-over of power is the suspension of the constitution and other enabling legislations and the dissolution of governing structures in the institution.
And to justify such illegal change of power and build resentment against those overthrown, they accuse them of corruption and embezzlement of funds.
Then they begin to perfect plans to legitimize their stay in power.Such has been the case since 23 August 2023 when the Second Vice President of the Pan-African Parliament (PAP), Hon. Dr. Ashebir Gayo, showed up at the precincts of the Parliament in Midrand, Johannesburg, and declared himself the Acting President of the Parliament.
He went on to unilaterally declare the Parliament’s Rules of Procedure invalid, declared the seats of both the President and First Vice President vacant and blocked the Third Vice President, Hon. (Mrs.) Lucia Dos Passos from participating in the meetings of the Bureau. And to now legitimize his stay, he is scheming to convene a Virtual Session of the Parliament.
As with other coup plotters, he has also accused the President of PAP, H. E. Hon. Chief Charumbira of embezzlement of funds.
Status of the President of the Pan African Parliament:
Without any doubt, the substantive President of the Pan African Parliament until 2025, within the meaning of Article 1 of the the Protocol to The Treaty Establishing the African Economic Community Relating to the Pan-African Parliament (PAP Protocol), is His Excellency Chief Fortune Z. Charumbira.
This is also in line with Rule 16(15) of the PAP Rules of Procedure and he is expected to resume his duties in due course. This is consequent to the fact that at law, he is regarded as a ‘returning Member’ of the Pan African Parliament.
Rule 1 of the Rules of Procedure defines a ‘returning member’ as ‘a member who has been re-elected or re-designated by a National Parliament or other deliberative organ of the Member State’.
It is also important to note that the tenure of the President was never interrupted. Therefore, a vacancy did not arise in the office of the President of the Pan African Parliament.
The Rules specifically makes it clear that a “vacancy” occurs when a member has not been re-elected or re-designated by the National Parliament or other deliberative organ of a Member State to the Parliament or as prescribed by Rule 8(1) of the Rules of Procedure.
The tenure of Chief Fortune Z. Charumbira as PAP President was continuous and uninterrupted, meaning he never ceased to be a member of the Pan African Parliament. He only took leave of absence to attend to exigencies relating to harmonized elections in the Republic of Zimbabwe.
As a general practice, words in any legal text must be given their ordinary grammatical meaning. A textual and literal interpretation of the above rules reveals that a returning member is not required to take an oath of office when he or she returns to the Pan African Parliament to continue his or her duties following leave of absence.
The Rules are couched in peremptory language that gives certainty to the procedure to be followed when an office holder is re-designated or re-elected. This was meant to ensure stability and give practical effect to the principle of rotation. In this regard, therefore, there is no procedural or legal impediment that stands in the way of the President when he resumes his duties.
Most importantly, under Article 12.8 of the PAP Protocol, a vacancy can only be declared in the office of the President if he or she:
a) Dies;
b) Resigns in writing;
c) is unable to perform his or her functions for reasons of physical or mental incapacity;
d) Is removed on grounds of misconduct;
e) ceases to be a Member of the National Parliament or other deliberative organ;
f) Is recalled by the National Parliament or other deliberative organ; or
g) Ceases to be a Pan-African Parliamentarian in terms of Article 19 of this Protocol.9. Removal on the grounds stipulated in 8 (c) or (d) above shall be on a motion to be decided on by secret ballot and supported at the end of debate by two-thirds majority of all the Pan-African Parliamentarians.
In the case of removal under the ground stipulated in 8 (c), the motion shall, in addition, be supported by a medical report.
None of the above conditions is applicable to Chief Charumbia.
Declaration of vacancy in the seat of a member of PAP:
Article 4.1 of the PAP Protocol states that “Member States shall be represented in the Pan-African Parliament by an equal number of Parliamentarians”.
Furthermore, Article 5.1 states that “The Pan-African Parliamentarians shall be elected or designated by the respective National Parliaments or any other deliberative organs of the Member States, from among their members.
These two provisions are mandatory.The doctrine of sovereign equality of states as expressed in Article 4.a of the Constitutive Act of the African Union (AU) precludes a parliamentarian from Ethiopia from dabbling into Zimbabwe’s sovereign right to designate her delegation to PAP.
It is the absolute right of Zimbabwe, in accordance with her national laws, guaranteed by the sovereign equality clause, to decide who to designate and when to withdraw such designation.
Since the National Parliament of Zimbabwe has not withdrawn the designation of Chief Charumbira to PAP, Dr. Gayo does not have the power to declare the President’s seat vacant especially when such declaration is required to be made during plenary session.
Moreover, under the PAP’s Rules of Procedure, Chief Charumbira’s seat cannot be declared vacant in view of the procedural safeguards or if you will, conditions precedent to such a declaration of vacancy.
Rule 6.5 states:
“Where the National Parliament or any other deliberative organ of a Member State notifies the Clerk that the status of the elected or designated Member has become incompatible with membership of Parliament, the Clerk shall notify the Bureau and the President shall declare before the House that the membership of the person has been terminated”Consequently, for there to be a valid declaration of vacancy, three conditions must be met.
First, there must be communication from the National Parliament or any other deliberative organ to the Clerk of the Pan-African Parliament. Secondly, the Clerk shall notify the Bureau of the receipt of such a communication and thirdly, on basis of the Communication from the Clerk, the President shall then declare the vacancy before the House, sitting in plenary.
That is the procedure and as far as we know, the first step which is receipt of communication from the National Parliament of Zimbabwe has not taken place. One cannot under the Rules, declare a vacancy on the basis of social media reports.
Status of the Rules of Procedure of the Pan African Parliament:
The Rules of Procedure of the Pan African Parliament have perpetual validity and remain binding until either amended or repealed lawfully by an appropriate organ.
The Rules of Procedure cannot be suspended or altered by any one single official. The sacrosanct powers of the Plenary Assembly which approved the Rules of Procedure can never be delegated to any individual or organ. Dr. Gayo or any member of the Bureau has no legal authority, express or implied, to vary established policies and procedures. Hon. Dr. Gayo had no such authorisation either from the Bureau or Parliament.
As such, by purporting to usurp the powers of the Plenary Assembly or the Bureau, he acted outside the scope of his powers as Second Vice President. He cannot usurp the authority of the Bureau through amending policy or procedures. Such acts, whenever they manifested themselves, were void ab initio and of no legal force or effect.
Therefore, the invalid exercise of executive authority by Hon. Dr. Gayo was devoid of legal merit and inconsistent with the Rules of Procedure and the Protocol.
Status of Rotation and the sequence of rotation at PAP:
Perhaps unknown to members of PAP, the reason for attacking the Rules of Procedure is that it has incorporated the implementation of rotation under which the Eastern Regional Caucus, where Hon. Dr. Gayo comes from, will not be eligible to contest for or occupy the office of the President till after both the Southern and Eastern Caucus have completed their turns which would be from 2028.
He does not want to wait till then and even if he does, Ethiopia may not be eligible.But the reality is that as far as PAP (and even all the other organs and institutions of the African Union) is concerned, rotation has become mandatory as a result of various Executive Council Decisions on the basis of which the 29 June 2022 Bureau election was conducted.It is important to note, at this point that on 18 May 2017, more than six years ago, the Pan African Parliament adopted Resolution No. PAP. 4/PLN/RES/08/MAY.17, by which the Parliament resolved that the Rules of Procedure of PAP be amended in accordance with Rule 93 and more particularly then to incorporate the principle of rotation of the Presidency of the Pan-African Parliament.
This is in addition to the earlier resolution of May 2007.It is also to be noted that following the disagreement that resulted in the crisis that led to the suspension of parliamentary activities at PAP, the Executive Council directed that the elections should be in line with the principle of rotation and only regions that have not previously held the position are eligible to present candidates for election of the PAP President through their Regional Caucuses. See Doc. (EX.CL/1294XXXIX) of 15 October 2021.
The Executive Council went further in July 2022 to direct PAP to apply the rotation formula outlined in the Modalities for Election of Bureau Members of the Sixth Pan African Parliament in all future elections of the Bureau and directed the Office of the Legal Counsel, in close collaboration with the Secretariat of the PAP, to urgently review the Rules of Procedure of the PAP to ensure alignment with African Union values, rules, and regulations as well as established practices of the Union including the principle of geographical rotation. See EX.CL/Dec.1174(XLI) of July 2022.
This necessitated the amendments to the Rules.The implication is that PAP is still obligated to comply with the above Executive Council decisions on rotation as well as the Modalities issued by the Office of Legal Counsel (OLC) for the Conduct of the 29 June 2022 Bureau election that ushered in the current Bureau in future elections.
This is because, as we all know, decisions of the Executive Council are binding on all the organs, departments, institutions as well as Member States of the AU. There is therefore no way to escape from both rotation and the sequence of rotation as the new normal at PAP. We must also accept the fact that the decision on regional rotation, also came with reality of intra-regional rotation.
The status of the First Vice President was settled during last session:
One wonders why a Vice President from Ethiopia (in the Eastern Region) is so bent on preventing another Bureau member Mauritania (in the Northern Region) from taking her seat except that it is part of Hon. Dr. Gayo’s scheming to illegally seize power at PAP. This is unprecedented in the history of PAP.
According to information, the swearing in of the Mauritania delegation which Hon. Dr. Gayo deployed every trick in the book to frustrate was discussed during a Bureau meeting of 10 May 2023.
The Bureau at the dais meeting, resolved to refer the matter to the Committee on Rules, Privileges, Ethics and Discipline (Committee on Rules) in line with Rules of the Parliament.
The Committee sat and available information is that Dr. Gayo attended the Committee Sitting to prevent the clearance of the delegation but failed and they were then sworn in during plenary.
This implies that Dr. Gayo who tried to stop the swearing in of the Mauritania delegation from the Bureau to the Rules Committee and even at the plenary session, has now unilaterally vetoed the decisions of these organs of the Pan-African Parliament. This is incredible!
Convening of a Virtual Session:
Is it not interesting that Hon. Dr. Gayo who is canvassing for the vacation of the amendments to the Rules of Procedure now wants to use the provision of the same rules, to convene a virtual session of the PAP to perpetuate his stay in office?.
He needs to be reminded that PAP is a democratic institution that is bound by the PAP Protocol and her Rules of Procedure.Hon. Dr. Gayo is now faced with what Americans describe as a “Catch-22” situation because it is the same amendments to the Rules which he is denouncing that made provisions for the convening of a virtual session of the PAP.
He has put himself in a difficult situation because of mutually dependent conditions, that is, the amendments to the rules.
Allegation of fraud and embezzlement by Dr. Gayo:
The allegation of embezzlement against the President is incredible because Hon. Dr. Gayo is the Bureau member (Vice President) in charge of Finance at PAP. His partner Hon. Sampa from Zambia is the Chairperson of the Committee on Audit and Public Accounts. This allegation is frivolous because Chief Charumbira is neither the authorizing nor the accounting officer of PAP.
Both Dr. Gayo and Hon. Sampa in view of their respective offices, should reasonably know the Financial Rules and Regulations of the AU and should stop insulting the intelligence of PAP Parliamentarians.
Conclusion:
The Executive Council during the 42nd Ordinary Session in February 2023 appreciated the activities implemented by the Pan-African Parliament within a short time period in 2022, in spite of limited budgetary resources, especially the proposed Model Law on Food and Nutrition Security, in furtherance of the African Union theme of the Year 2022;The Council welcomed the institutionalization of collaboration between the PAP and other AU organs, such as the African Union Commission, NEPAD, APRM, PRC and the African Commission on Human and People’s Rights, which will enable policy coherence, rationalization of resources and effective complementarity within the African Union institutional architecture.
The Council requested the Pan-African Parliament to work closely with National and Regional Parliaments to expedite the harmonization of national legislative and policy frameworks to create an enabling environment for the realization of the African free trade and free movement of persons, in line with the African Union 2023 Theme of the Year.
And to ensure the availability of resources to execute the above mandate, the Executive Council then directed the PRC, though the relevant Sub-Committee to reconsider the 2023 budget of the PAP in order to enable the Parliament to meet its institutional and operational needs and to effectively fulfill its mandate.
They were to report on progress on the implementation of this Decision at the 43rd Ordinary Session of the Council held in July 2023 at Nairobi, Kenya. Has Dr. Gayo who is the Bureau member in charge of Finance, attempted to follow up on this Executive Council decision?These are matters of public record because the decisions of the Executive Council are available and can be assessed at the AU website.
No one should under these circumstances, attempt to deceive PAP MPs.Chief Charumbira deserves commendation for the achievements recorded by PAP within so such a time as appreciated by the Executive Council and he is expected to continue from where he stopped.
