The below is from a WPF research briefing paper, “Unconstitutional Changes in Government and Unconstitutional Practices in Africa” produced as part of the African Peace Missions project. You can access the entire collection of research briefings and the final report, “African Politics, African Peace,” on our website.

Introduction

This paper analyzes the African Union (AU)’s normative framework on Unconstitutional Changes of Government (UCG), and is intended to serve three purposes: to trace the origins of the norm, identifying the major gaps; to review the AU’s implementation and enforcement of the norm; and to discuss potential means for reconciling the identified gaps between the norm and practice. It recommends:

1. The consolidation of the instruments containing the various norms against UCG into a single framework consisting of:

  • a. first, a clear statement that the object of the norm is to protect the will of the people and does not preclude their right to peacefully protest against oppressive systems;
  • b. second, a clear, comprehensive list of the circumstances that constitute UCG, including those listed in the Lomé Declaration and the 2007 Addis Ababa Charter, and expanded to include issues such as retention of government power without holding free and fair elections for a prolonged period of time, election rigging and election malpractice duly ascertained by a credible, independent body, and c. third, a comprehensive list of measures to be applied in case of UCG.

2. Elaboration of provisions to address the gaps in the UCG norm, including by:

  • a. providing a mechanism that outlines specific guidelines to determine when popular uprisings are or are not UCG;
  • b. articulating the standard by which restoration of constitutional order and lifting of sanctions is to be judged, and
  • c. avoiding divergent application of the norm on UCG; this could be accomplished by the AU and the Regional Economic Communities (RECs) agreeing on a process for assessing whether the required conditions for UCG were met.

3. Elimination of the distinction between UCG, serious human rights and democratic deficits. To do this, the sanctions applicable in UCG cases should also be applicable to cases of systematic violations of human rights and democratic principles. Additionally, the AU Peace and Security Council should develop mechanisms for operationalizing Article 19 of the founding Protocol (on establishing close working relationship with the African Commission and Court on Human and People’s Rights).

4. Establishment of an expert group on the implementation of the AU norm on UCG as its subsidiary body which would offer technical support in assessing and monitoring different elements of UCG on the continent.

Key Findings:

Between 1952 and 2014 there were 91 successful coups in Africa, and prior to 1990’s, coups had become the main mode of political contestation and leadership change in the majority of African states. They eroded and undermined constitutional rule, entrenched bad governance and created conditions inimical to citizen’s freedom (including by encouraging future coups). This changed with the revival of multi-party politics in Africa in the 1990s, which led to the emergence of a belief in elections as the only legitimate basis for assuming and retaining government power. Building on this belief, the O/AU has become not only the defender of democracy and constitutional rule on the continent, but has also taken on the role of promoting democracy and helped enshrine the norm against the UCG in various legal instruments. Through norms like the UCG, the O/AU has even exceeded the United Nations in expansively articulating the conditions that would be considered threats to peace and security.

The full Briefing Paper is available here.

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