Eighth Report of the Working Group on the African Union:

Eighth Report of the Working Group on the African Union:

1. Introduction
In its seventh report to the House, adopted on 19 June 2003, the Working Group recommended that the National Assembly consider convening a meeting of African Parliaments to exchange views on the Pan African Parliament (PAP) with a view to building a common vision.

The Speaker had consulted the Chairperson of the National Council of Provinces (NCOP) and been advised that the NCOP Working Group on the African Union would be meeting and the Deputy Chairperson would be participating in the discussions of the National Assembly Working Group. The Working Group agreed that it would continue to invite all members of the NCOP Working Group to its meetings.

2. Meeting of African Parliaments
The meeting of African Parliaments was held from 30 June to 1 July 2003 in the National Assembly Chamber and was opened by Deputy President, H.E. Mr J G Zuma.

The meeting was attended by 138 Parliamentarians from 38 Member States of the African Union. Twenty six (68%) of the 38 delegations included women Parliamentarians, with the total number of women Parliamentarians being 41 (30%). Delegates included 34 Presiding Officers of which 17 were Speakers of Parliaments.

The meeting adopted a Declaration which was presented to the Assembly of the African Union at the 2nd Summit of the AU held from 4 to 12 July 2003 in Maputo, Mozambique. The Declaration, among other things, urged Member States that had not yet deposited the instrument of ratification (of the PAP Protocol) to do so by 31 December 2003. The full report of the meeting as well as the Declaration can be accessed on the Parliamentary website: www.parliament.gov.za.

3. Establishment of the Pan African Parliament
In terms of Article 22 of the Protocol to the Treaty Establishing the African Economic Community relating to the Pan African Parliament (PAP Protocol), the Protocol will enter into force thirty (30) days after the deposit of the instruments of ratification by a simple majority of the Member States. Article 5(2) provides that the Assembly will determine the beginning of the first term of office of the PAP at its session immediately following the entry into force of this Protocol.

At the time of the 2nd Summit of the African union only 16 countries had ratified the Protocol. The Summit could therefore not decide a date for the first meeting of the PAP. It mandated the Chairperson of the Union, in consultation with the Commission, to determine the beginning of the first term of office of the Parliament in terms of Article 5(2) as soon as it comes into force.

The Summit did not discuss or decide on the Seat of the PAP. However, if sufficient ratifications are deposited before the next Summit, it will be possible for the Chairperson of the African Union to determine that the PAP meet in any country offering to host that meeting.

The Assembly endorsed the Declaration emanating from the meeting of African Parliaments and also urged all countries which had not already deposited instruments of ratification to speed up the process of signing and ratifying the Protocol by 31 December 2003, to enable the Protocol to enter into force and the Parliament to meet before 31 January 2004.

The full text of the Assembly resolution is attached to the report as annexure A.

(2) Ratifications and preparations for PAP
As at 8 September 2003, 22 countries had deposited instruments of ratification with the AU Commission. A mechanism has been established at an administrative level between the South African Parliament and the AU Commission to track progress on ratification.

The Speaker informed the Working Group, that the African Union Steering Committee on PAP, would be convened soon after the new Commission elected in Maputo took office in mid September. The Committee would consider the progress of ratification, and assess the possibility of the PAP having its inaugural session before 31 January 2004, as per the resolution of the Summit.

The Steering Committee will also consider the preparations that would need to be made, in order to enable the PAP to meet.

(3) Deliberations of the Working Group
In view of the possibility of a meeting of the PAP early in 2004, the Working Group agreed to focus on preparing the South African Parliament to participate. Among the issues identified are: composition of delegation to the PAP; election of delegates; mandates, accountability and reporting mechanisms; Oath of Office; a seminar on the Protocol and the South African Constitution as well as the popularization of the PAP and the AU. A programme of work has been agreed to address these issues.

(a) Composition of delegation to the Pan African Parliament
In terms of Article 4(2) of the Protocol, each State shall be represented in the PAP by five (5) members, at least one of whom must be a woman. The representation of each Member State is, in terms of Article 4(3), required to reflect the diversity of political opinions in each National Parliament or other deliberative organ.

(i) Gender
The Working Group recommends: That at least three (3) of the delegates should be women.

(ii) Political representation
Parties need to discuss and agree on the composition of the delegation in terms of party representation. The following options were discussed by the Working Group and parties need to reflect on them, prior to a decision.

Option A
If the largest party is to have a majority: 3 members from the largest party and 2 members from among other parties.

Option B
If no majority representation is considered necessary: the five parties with the biggest numbers could
have 1 member each or a variation.

(iii) Representation from each House
The above matter is still under discussion and the Working Group will report on it in due course.

(iv) Executive representation
Article 7 of the Protocol states that membership of the PAP will not be compatible with the exercise of executive or judicial functions in a Member State. It is an established practice within Parliament that members of the Executive are not included in the composition of Parliamentary delegations. Members of the Executive will therefore not be included in the delegation to the PAP.

(b) Election of delegates
According to Article 5(1), 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. Article 5(3) provides that the term of a member of the PAP shall run concurrently with his or her term in the National Parliament or other deliberative organ.

This means that this Parliament will need to elect members to serve on the PAP, if the Chairperson of the AU acts in terms of the Summit resolution and determines the beginning of the first term of the PAP to be before South African elections in 2004. The post-elections Parliament will need to elect five (5) members of the PAP to serve until the 2009 elections.

The Working Group is currently discussing the procedure to be followed in the election of delegates to the PAP. Recommendations in this regard will be tabled in due course.

(c) Mandates, accountability and reporting mechanisms
The Working Group notes that Article 6 of the Protocol states that the Pan African Parliamentarians shall vote in their personal and independent capacity. However, it was also noted that delegates to the PAP represent their respective Parliaments and for this reason they should be accountable for the positions they take at the PAP.

(i) Establishment of a Committee
The Working Group recommends: That Parliament considers establishing a Committee to process and deal with issues emanating from the African Union and the Southern African Development Community Parliamentary forum (SADC-PF). The Committee would discuss mandates and receive reports emanating from the PAP and the SADC Parliament (when it is established) and table reports in the South African Parliament. This Committee could also be a forum for discussion with the Executive in its engagement with both the AU and SADC.

It will be necessary to establish this Committee before the first meeting of the PAP, which may be as early as January 2004. Comparative research will be conducted on how other national Parliaments interact with their delegates to regional and continental Parliamentary bodies.

(ii) Recall of delegates
Article 5(4)(f) of the Protocol provides that the seat of a member of the PAP shall become vacant if he or she is recalled by the National Parliament or other deliberative organ.
The Working Group recommends: That the Assembly considers the inclusion in the Rules of a procedure for recall.

(d) Oath of Office
In terms of Article 13 of the Protocol, at its first sitting after the election and before proceeding with any other matter, Pan African Parliamentarians shall take an Oath or make a solemn declaration.

The Working Group has considered whether South African delegates to the PAP should be required to take an additional oath in Parliament. The general view was that this would not be necessary, however, the possibility of amending the current oath to provide for affirmation of loyalty to the concept of African Unity could be explored. The Assembly could consider this matter with a view to the 2004 elections.

(e) Seminar on the PAP Protocol and the South African Constitution
This will be the first occasion that Parliament will participate in a forum such as the PAP and it is necessary that all members are informed and prepared for the additional responsibilities we are assuming. The Working Group has agreed that it is necessary to make members aware of the detail contained in the PAP Protocol and the implications of participation in a multilateral Parliament and the possible impact on the functioning of our Parliament. In this regard, it is also necessary to include a discussion on the South African Constitution vis-à-vis the PAP Protocol.

The Working Group recommends: That a seminar on the above issues be held before the end of the 2003 Parliamentary session. This exercise will create an opportunity for members to meaningfully engage on PAP issues.

Report to be considered.
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ANNEXURE A to Eighth Report of the Working Group on the African Union:
DECISION ON THE PROTOCOL TO THE TREATY ESTABLISHING THE AFRICAN ECONOMIC COMMUNITY RELATING TO THE PAN-AFRICAN PARLIAMENT
The Assembly:

1. NOTES WITH APPRECIATION the conclusions of the meeting of African Parliaments held in Cape Town, South Africa from 30 June to 1 July 2003 and ENCOURAGES the Steering Committee set up in pursuance of the Decision taken by the Assembly in Durban, South Africa in July 2002, to pursue its endeavours aimed at speeding up the process of ratification of the Protocol by Member States;

2. UNDERSCORES the urgency of the entry into force of the Protocol to the Treaty establishing the African Economic Community relating to the Pan-African Parliament and the importance of setting up this organ which will ensure the effective and full participation of African peoples in the development and integration of the Continent;

3. COMMENDS Member States which have already deposited the instruments of ratification of the Protocol;

4. URGES all countries which have not already done so, to speed up the process of signing and ratifying the Protocol by 31 December 2003 if possible to enable the Protocol to enter into force, and the Parliament to meet before January 31st 2004;

5. REQUESTS the Commission to pursue the efforts already initiated to obtain very rapidly the requisite number of ratifications for the entry into force of the Protocol, thereby making this instrument operational;

6. NOTES that the Protocol will come into force 30 days after the deposit of the instruments of ratification by a simple majority of the Member States;

7. MANDATES the Chairperson of the Union, in consultation with the Commission, to determine the beginning of the first term of office of the Pan-African Parliament in terms of Article 5(2) of the Protocol as soon as the Protocol comes into force.

(2) Executive Summary of Issues raised at the Workshop on the Draft Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill

1) General:
The workshop recommended that consideration be given to whether the Provinces should not consider a separate Bill within the same broad-based guidelines or whether there should be one bill with a separate chapter specifically dealing with the Provinces.

Following discussion it was agreed that given sections 58(2), 71(2) and 117(2) of the Constitution, the recommendation was that there should be a single piece of legislation which included a separate chapter specifically dealing with the Provinces.

2) Definitions:
The definitions in the Bill need to be consistent with the provisions of the Constitution and be aligned with the Rules of the Houses and other relevant legislation.

3) Chapter 2:
3.1) Clarification would be needed (even in the Rules) regarding the process of the exercise of control over the security forces in Parliament for purposes of safeguarding the precincts and enforcing parliamentary law.

4) Chapter 3:
4.1) A clear definition is needed of the terms which are material to the content of the Chapter, e.g. "punishable conduct" contempt.

4.2) Fines which are to be imposed need to be reconciled with other analogous legislation and with the penalties provided for in the Code of Ethics.

5) Chapter 4:
5.1) It is recommended that the clauses providing for the immunities for Members of the Pan-African Parliament and the SADC Parliament should be deleted and dealt with in the relevant protocols or treaties. Care needs to be taken to ensure that the immunities which are granted do not conflict with the any of the rights which are entrenched in the Constitution.

5.2) The Bill should protect non-members. Parliamentary privilege is a powerful tool and should be used responsibly by those who are granted it. The Rules of the House should make provision for specific guidelines to empower the Presiding Officer to act on any abuse of privilege or defamation of another Member. Should a person feel aggrieved they should be able to petition the Presiding Officer to protect their reputation. A mechanism for considering these petitions would need to be set up.

6) Chapter 5:
The clause in the Bill which seeks to force a witness to provide information that may incriminate him/her in a legal suit should take account of the constitutional right to silence, so as to ensure that the Bill does not breach any constitutional rights.

7) Chapter 6:
This Chapter is concerned with the publication and broadcasting of proceedings. The broadcasting policy which is currently being drafted and the relevant provisions of this Chapter should be read together and balanced against the voters' right to be informed regarding the performance of their public representatives. The provisions should also be scrutinised in terms of the practicality of implementation.

8) Chapter 7:
Clause 29 provides for the repeal of section 31 of the Powers and Privileges of Parliament Act, 91 of 1963. This section defined who the Accounting Officer of Parliament is, but this provision has not been imported into the current Bill. It is recommended that section 31 of the 1963 Act be incorporated in the Bill.

9) Tagging of the Bill:
The Bill has been provisionally classified as a section 75 Bill. However, given that the Bill will also regulate provincial Legislatures, the question arises as to whether the Bill should be tagged as a section 75 Bill or a section 76 Bill.

Copies of Report available at the Office of the Clerk of the Papers.