By Omar Alieu Touray

The international reaction to the ongoing post-election crises in The Gambia highlights the disdain with which the world community treats unconstitutional behaviors, especially unconstitutional governments. While the ostracization of unconstitutional strongmen is a fairly recent phenomenon, its impact on Africa’s democratization has been significant. This paper, which is based on a longer study, traces African Union’s attempts to institutionalize democracy and good governance in Africa by systematically ostracizing unconstitutional governments.

Among the changes of the post Cold-War era was the attempt by the Organization of African Unity (OAU) to mainstream constitutional governance in Africa by outlawing coup d’etats and other unconstitutional routes to power. The first formal decision to that effect was taken by the OAU Council of Ministers in Yaounde, in July 1996. The decision followed timid efforts such as the adoption of the Cairo Agenda for Action on Re-launching African Economic and Social Development, which, among other things, stresses the importance of good governance, popular participation, free and fair elections, as well as respect for various other freedoms. The 1997 military take-over in Sierra Leone was perhaps the first test of OAU’s resolve in this area. Meeting in Zimbabwe at the time of the Coup d’etat, OAU Council of Ministers did not only issue the first-ever collective condemnation of a coup d’etat, it also pledged not to tolerate unconstitutional change of government within member-states. The Harare spirit was cast into a formal instrument two years later. During its 35th ordinary Session held in Algiers in July 1999, the Assembly issued an ultimatum to all the governments that came to power unconstitutionally after 1997 to return to constitutional rule within one year or face sanctions. The Algiers declaration was followed by the landmark Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, adopted at Lome in 2000. The Lome Declaration calls for the adoption of democratic constitutions on the basis of generally accepted principles of democracy and rule of law.

The advent of the African Union (AU) and New Partnership for Africa’s Development (NEPAD) strengthened African leaders’ hand in many respects. The Constitutive Act of the AU provides for the rejection of unconstitutional governments and sets as key objectives the promotion of democratic principles and institutions as well as popular participation and good governance. The provisions of the Constitutive Act were complimented by the Declaration on the Principles Governing Democratic Elections in Africa, and the Protocol on Peace and Security Council of the African Union. Both instruments underscore the importance of democratic elections not only as the basis of the authority of any representative government, but also as a key contributor to peace and security. .

But it is the African Peer Review Mechanism (APRM) of NEPAD that many consider to be the most promising in the area of good governance and democratic pluralism. It has been seen as Africans’ own means of monitoring compliance with national, regional and international norms of political, economic and corporate governance. As such the mechanism is supposed to replace the intrusive role that donors increasingly played in promoting economic and political reforms. So far, over 30 countries have subscribed to the Mechanism, suggesting the growing appeal of the APRM’s voluntary approach and African ownership and leadership of the process.

The African Union also adopted the African Charter on Democracy, Election and Governance that came into effect in 2012. Considered the most innovative AU governance instrument, the Charter both criminalized unconstitutional change of government and broadened the definition of acts that constitute an unconstitutional change of government. Accordingly, acts that constitute unconstitutional change of government are in three categories:-
putch or coup d’Etat, intervention by mercenaries, armed dissidents against a democratically elected government;
refusal by a sitting government to relinquish power to the wining party or candidate after free and fair elections; any amendment or revision of the constitution or legal instrument, which is an infringement on the principles of democratic change of government.

Besides the sanctions provided for by earlier instruments, the Charter provides that the perpetrators of the unconstitutional change of government shall not be allowed to participate in elections held to restore democratic order or hold any position of responsibility in political institutions of their state. Most importantly, the perpetrators may also be tried before the competent court of the Union, or of a state party.

Over the years, the implementation of the frameworks took various forms including the routine suspension of all unconstitutional governments from participating in the activities of the African Union. Countries suspended include Central African Republic (March 2003 – June 2005)Togo (February 2005 – May 2005)Mauritania (August 2005 – April 2007)Mauritania (August 2008 – June 2009)Guinea (December 2008 – December 2010) Niger (August 2009 – March 2011)Madagascar (March 2009 – today)Côte d’Ivoire (December 2010 – April 2011). ) Egypt (2013).
The continental regimes on coups d’état has been transposed at the sub-regional levels through the principle of subsidiarity. As a result, a number of Regional Economic Communities (RECs) have developed their own regional instruments and structures aimed at fostering democracy and good governance. In West Africa, the Economic Community of Wester African States (ECOWAS) adopted the Mechanism for Conflict Prevention, Management, Resolution, Peace Keeping and Security (1999), Supplementary Protocol on Democracy and Good Governance (2001) and ECOWAS Conflict Prevention Framework (2008). Article 25 of the Mechanism in particular provides for scenarios that warrant ECOWAS intervention. It governs the Community’s recent intervention in Burkina Faso, Mali, Guinea Bissau as well as its current engagement in the Gambian crises.

No doubt further research will be required to determine the precise nexus between the various continental governance regimes and democracy on the continent. There is, however, clear evidence to suggest that African Union governance frameworks and institutions have had transformational effects on African civilian and military elites. The frameworks on unconstitutional change of government, for example, have played a decisive role in reducing the number of military coups d’état, and have considerably enhanced the continent’s experiment with democratic pluralism. Between 1952 and 2012, 88 successful military coups took place in Africa. Of these, 63 took place before 1990 and only 10 occurred after the adoption of the Lome declaration in 2000. To a large extent, therefore, AU sanctions, together with sanctions that the donor community routinely imposed on unconstitutional governments, have contributed to the reduction of military takeovers in Africa. They have not, however, dissuaded Laurent Gbagbo of Cote D’Ivoire and Yahya Jammeh of the Gambia from wanting to cling on to power unconstitutionally after their electoral defeat.



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