Countering the Scourge of Unconstitutional Changes of Government in Africa
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Charles M Fombad
University of Pretoria
Editors’ note: This post is part of a joint symposium between the IACL-AIDC Blog and African Law Matters, featuring posts on the theme ‘Constitutional Transformations’ from participants at the upcoming World Congress of Constitutional Law in Johannesburg, South Africa 5-9 December 2022. Submit an abstract by 30 June 2022 and register here to join us.
The recent wave of coups d’état in Burkina Faso, Guinea, Mali and Niger – coming at a time of unprecedented poverty and threats of famine initially caused by the COVID-19 pandemic and now aggravated by the Russian invasion of Ukraine – is likely to provoke more political instability in Africa. These developments have coincided with an increased number of arbitrary constitutional amendments that have allowed incumbents to extend their terms, centralize political power and progressively close the limited avenues for political alternation that still exist. In the midst of this increasingly gloomy outlook is an African Union (AU) and Regional Economic Communities (RECs) that appear to have dropped the ball.
It is clear that it is the absence of democratic stability and consolidation that is fueling the present wave of unconstitutional changes of government (UCG) on the continent. Whilst it is generally agreed that there is a global democratic recession, the situation in Africa is far worse. Today, the number of AU member states that can be classified as democratic, based on most established international surveys, such as the Ibrahim Index on African Governance, and Freedom House’s Freedom in the World survey, are in a minority and are too few to impose democracy on the others.
Unlike the European Union, when the Organisation of African Unity (OAU) (the predecessor to the AU) was formed in the 1960s, the only condition for membership was to be African and committed to liberation and independence. Adherence to democratic principles has never been a condition for membership of the AU. Despite the limited number of African countries that can be classified as democratic, the AU and RECs are not short of progressive legally binding instruments, declarations and policy documents designed to counter the scourge of UCG. The major challenge is one of the AU, RECs and member states implementing these documents in a clear and consistent manner. Whilst the general legal framework for dealing with UCG has numerous weaknesses, it must be recognized there will never be a perfect legal framework. Despite the present increase in UCG, there is no urgent need for any more legally binding instruments. The focus should be on finding ways to enhance the implementation of the existing instruments. Bearing this in mind, a number of measures that can be summarized under the following two main points need to be adopted.
The first is to develop a common understanding of the concept of UCG. The main AU instruments that deal with UCG are:
The Lomé Declaration of 2000;
The African Charter on Democracy, Elections and Governance ; and
The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, generally referred to as the Malabo Protocol
The scope of the acts that constitute UCG have been progressively expanded over the years. The most comprehensive formulation is contained in article 28(e) of the Malabo Protocol, which makes UCG a crime. Two observations can be made. First, apart from the serious problem of mercenaries, which is regulated by the hopelessly outdated OAU Convention on the Elimination of Mercenarism in Africa, the other causes of UCG are reasonably covered by existing treaties such as the African Charter and the 1999 OAU Convention on the Prevention and Combating of Terrorism.
Secondly, in spite of its elaborate scope, the Malabo Protocol is yet to come into force because only 15 of the 55 AU member states have signed it, and even the African Charter has only been ratified by 36 of the 55 countries. As a result, subject to a caveat that I will shortly allude to, one may be tempted to conclude that there is an urgent need to develop a common understanding of the nature and scope of what exactly is covered by UCG.
The second key issue is that of developing a comprehensive strategy for enhancing the ratification and implementation of these instruments. The problem of UCG in Africa is caused less by the lack of relevant guiding legal instruments and more by their non-implementation. An equally serious problem is that too often, even in the literature, UCG has almost become synonymous with coups d’etat, in spite of the fact that the number of coups has reduced considerably in the last decade. Whilst the AU has worked hard to curb coups, it has not done enough to eradicate the other root causes of UCG.
Major reasons for the democratic recession in the last decade are these other root causes of UCG. These other factors consist of the regular manipulation of constitutions, in most instances to repeal presidential term limits; the manipulation of electoral laws and electoral processes leading to the regular rigging of elections; and the blatant refusal of incumbents to admit defeat in elections. In most such instances, the AU and RECs have been either silent or colluded with the incumbent by negotiating dubious power-sharing agreements to enable incumbents to stay in power.
Although the existing legal framework has many ambiguities and contradictions, both apparent and real, it still offers considerable scope for dealing with some, even if not all, of these problems. Perhaps the most important instrument that allows us to deal with many of these problems is the African Charter. The Charter has not been fully implemented in the states that have ratified it, and the AU has not done enough to promote its implementation. There are a number of ways in which these shortcomings can be overcome.
If one looks at the myriad of AU and RECs treaties and declarations, we can conclude that a regional customary law has emerged under which a majority of African states now consider UCG if not a crime, as the Malabo Protocol puts it, then at least as an unacceptable practice that must be condemned unequivocally and consistently. This has not always happened and we do not need any new treaties to make this happen. Even if the commitments in all these instruments are not strictly binding on all states, their widespread acceptance cannot be ignored.
The African Charter provides a solid framework for the AU to monitor and ensure that elections are free and fair. In fact, apart from the EU, one can argue that the AU is one of the world’s most advanced regional organisations in terms of its mandate and the instruments it has adopted to create, protect and promote democracy amongst its member states, and in this way to prevent UCG.
This point is underscored by article 44(2)(A)(a) of the African Charter, which states that “the [AU] Commission shall develop benchmarks for implementation of the commitments and principles of this Charter and evaluate compliance by State Parties.” This provides the basis for the AU Commission (which is the AU’s secretariat and undertakes its day to day activities) to develop clear and consistent guidelines which will not only enable it to monitor elections but also state the conditions on which it will declare any elections that it monitors as free and fair. This also provides the Commission with the power to develop guidelines that will enable it to determine whether any constitutional amendments or changes to electoral laws are an infringement of the principles of democratic change of government or inconsistent with the constitution. In short, the African Charter needs carefully crafted guidelines to facilitate the monitoring of its implementation by those states that have ratified it. The measures that the AU can take under article 44(2)(A)(a) to prevent many of the causes of UCG should include the following:
Setting minimum standards for the recognition of credible and effective Election Management Bodies;
Setting minimum standards for the conduct of elections;
Adopting guidelines which lay down minimum standards for amending the constitution and any laws that have an impact on democratic governance, and free and fair elections;
Setting minimum standards for promoting multipartyism, particularly the recognition and protection of political parties in a manner that facilitates inclusivity and popular participation in governance; and
Setting minimum standards for judicial independence, especially for those courts that have jurisdiction to deal with pre- and post-electoral disputes.
These are not exhaustive but will give meaning and effect to the commitments that states have accepted by ratifying the African Charter.
3. The AU needs to work closely with the RECs to deal with the problem of UCG. In this regard, the African Charter in article 44(2)(B) requires the AU Commission to develop a framework for cooperation with the RECs to implement its provisions. This is understandable because many RECs have similar or overlapping mandates with the AU. Under the present MOU between the AU and the RECs on cooperation in the area of peace and security, the signatories undertake to “adher[e] to the principles of subsidiarity, complementarity and comparative advantage” (article IV(iv)). The MOU is open to interpretation as to which organisation takes precedence whenever there is a conflict or differences of approach. It is not surprising that in the last two decades, the AU and the RECs have in many incidents of UCG taken conflicting and contradictory positions. The MOU needs to be revised to remove any ambiguity because the AU legal framework, especially the Protocol establishing the Peace and Security Council (PSC) confers primary responsibility for promoting peace, security and stability on the AU and requires it to coordinate the activities of RECs to ensure their consistency with AU objectives and principles. The principle of hierarchy of international norms applies here with full force.
4. The African Charter gives the AU Commission in general and the PSC in particular special powers and responsibilities to deal with situations of UCG. Both are essentially political bodies. So far, the dominance and influence of undemocratic regimes in these bodies has blocked the implementation of many progressive instruments designed to curb UCG. This needn’t be so. If progressive countries can ensure that there are clear and pre-determined guidelines and rules on how to deal with the different situations that may result in UCG, this will considerably help. In other words, the adoption of working guidelines and rules may limit the negative impact of political interference, and pave the way for the PSC to be more proactive, rather than merely reactive, and more decisive by not keeping silent over certain crisis situations.
By way of conclusion, we can say that the various forms of UCG constitute a grave danger to the stability and consolidation of democracy in Africa. These are just some, but by no means all, of the creative solutions that the AU and RECs can develop to counter UCG, which is increasingly leading to the resurgence of authoritarianism in Africa. These proposed solutions will also enable regional institutions to act in a more coordinated, firm, decisive and consistent manner.
Charles M Fombad is Professor at the Faculty of Law, University of Pretoria and Director of the Institute for International and Comparative Law in Africa
Suggested Citation: Charles Fombad, ‘Countering the Scourge of Unconstitutional Changes of Government in Africa’ IACL-AIDC Blog (16 June 2022) https://blog-iacl-aidc.org/transformations/2022/6/16/countering-the-scourge-of-unconstitutional-changes-of-government-in-africa.
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