A club of incumbents? The African Union and coups d'etat.

• Author: Omorogbe, Eki Yemisi

ABSTRACT

This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even when the regime had popular and political support within the state. The Article concludes by arguing that the AU should pursue a more nuanced policy in this area.

TABLE OF CONTENTS I. INTRODUCTION II. INSTRUMENTS AND POLICIES ON UNCONSTITUTIONAL CHANGE A. The OAU Period (1963-2003) B. The Current African Union Treaties 1. Organs and Powers 2. Unconstitutional Change: Definitions and Responses C. The African Charter on Democracy, Elections and Good Governance (2007) III. THE AFRICAN UNION PRACTICE ON COUPS D'ETAT 1. Togo (2005) 2. Mauritania (2005 and 2008) 3. Guinea (2008) 4. Madagascar (2009) 5. Niger (2010) IV. CONCLUSION I. INTRODUCTION

From the end of the 1980s, Africa's one-party states and other authoritarian regimes faced internal and external pressure to conform to liberal democratic norms. (1) As a result, many states adopted multiparty political systems and introduced constitutional provisions for periodic elections and presidential term limits. (2) However, the democratic transitions were often an illusion. The elections were not free and fair, and many incumbents remained in office. (3) Consequently, the degree of democracy among African states continues to vary considerably, with authoritarian regimes at one extreme, functional multiparty systems at the other, and many forms of imperfect democracy in the middle. In 2009, the Freedom House Report described eight African states as fully democratic, twenty-five states as partially democratic, and twenty-one states as authoritarian. (4) The Organization for African Unity (the OAU), founded in 1963, and its successor, the African Union (the AU), which came into operation in 2003, have had the potential to influence the form of state governments in Africa. In practice, however, the OAU and the AU, endorsing the sovereign right of their member states to determine their own political systems, have generally tolerated governments that are undemocratic or imperfectly democratic. (5) The one exception, which has emerged since 1997, concerns unconstitutional changes of government by coup d'etat. Despite the argument that acting against coups violates the principle of noninterference in a state's internal affairs, the OAU and the AU have opposed coups in the belief that they threaten public order and economic development. (6) Part II of this Article traces the evolution of OAU and AU instruments and policies concerning unconstitutional change. It shows that the AU's understanding of the circumstances in which sanctions and intervention against coups are justified has progressed beyond that of the OAU. Part III discusses AU practice in relation to successful coups since the formation of the AU Peace and Security Council (PSC) in 2004. It demonstrates that the AU has consistently refused to recognize governments that come to power through coups even when those governments have popular and political support within the state in question. The Article concludes by arguing that the AU should pursue a more nuanced policy in this area.

2. INSTRUMENTS AND POLICIES ON UNCONSTITUTIONAL CHANGE

   This Part considers the definitions of unconstitutional change in OAU and AU instruments and the response mechanisms that those instruments provide. It begins with the change in OAU policy as refiected in its decisions and declarations, and then it considers the legal framework provided by AU treaties. It concludes with a discussion of how the range and strength of the proposals contained in the 2007 African Charter on Democracy, Elections and Good Governance have increased. (7)

   1. The OAU Period (1963-2003)

      The Organization for African Unity was established on May 25, 1963. (8) Its declared aim was to safeguard African interests by promoting the unity and solidarity of African states and eradicating all forms of colonialism in Africa. (9) The OAU generally followed the principles of "[n]on-interference in the internal affairs of States" and "[r]espect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence," in line with the OAU Charter. (10) It did, however, reject white minority rule in Rhodesia and apartheid in South Africa. (11) In other words, noninterference presupposed decolonization. Beyond that minimal requirement, the OAU did not question the internal policies of its member states, even when they maltreated their populations. (12)

      The OAU's adherence to the principle of noninterference led to a reluctance to take effective action when coups d'etat occurred. In principle, the OAU condemned violent coups and the assassination of political leaders as unlawful under the OAU Charter. (13) In practice, however, the OAU usually accepted whichever government was in effective control of the territory and allowed that government to represent its state within the OAU. (14) This trend is illustrated by the unsuccessful attempts by some member states to deny OAU recognition to governments that came to power through coups in Ghana (1966), Uganda (1971), Liberia (1980), and Chad (1982). (15) Had it done otherwise, the OAU might have been bereft of state representation. (16) From the formation of the OAU in 1963 to the end of 1989, there were sixty-one successful coups in Africa, and more than half of all African states had at some point been governed by military regimes that had displaced civilian governments. (17)

      It was only after the Cold War that the OAU adopted ah anti-coup d'etat ethos, which it linked to its commitment to promote democratic institutions and good governance. (18) Demonstrating a new willingness to become more actively engaged in the internal policies of its member states, the OAU began to deny recognition to new governments that came to power through unconstitutional means. (19) This change came only after ten successful coups occurred between January 1990 and May 1997. (20)

      The turning point was the OAU response in 1997 to events in Sierra Leone. (21) The government of Tejan Kabbah, which had been democratically elected in March 1996 as part of the peace process ending a six-year civil war, was overthrown by Major Johnny Paul Koromah on May 25, 1997. (22) At its summit meeting in Harare, Zimbabwe, from May 28 to 31, 1997, the OAU Assembly called for a return to constitutional government in Sierra Leone and encouraged the Economic Community of West African States (ECOWAS) to achieve that goal. (23) The Assembly also called on African states and the international community not to recognize the new regime. (24) In February 1998, a Nigerian-led ECOWAS force (the Economic Community of West African States Monitoring Group (ECOMOG)) removed the junta, and Kabbah was reinstated as President. (25)

      Next, the OAU articulated a general policy against unconstitutional changes of government. At the OAU Assembly meeting at Algiers, Algeria, in July 1999, the Assembly declared that several governments that had come to power through unconstitutional means since the Harare summit should restore constitutional legality by the next annual summit in 2000. (26) These states were Comoros, Congo Brazzaville, Guinea Bissau, and Niger. (27) Then, at Lome, Togo, in July 2000, the OAU Assembly adopted the Declaration on a Framework for Response to Unconstitutional Changes of Government (the Lome Declaration). (28) In the Lome Declaration, the OAU Assembly set out a new approach to coups:

      We express our grave concern about the resurgence of coup d'etat in Africa. We recognize that these developments are a threat to peace and security of the Continent and they constitute a very disturbing trend and serious set back to the ongoing process of democratization in the Continent.... We reaffirm that coups are sad and unacceptable developments in our Continent, coming at a time when our people have committed themselves to respect of the rule of law based on peoples['] will expressed through the ballot and not the bullet. (29) As Paul Williams observed, the OAU's commitment was especially noteworthy because many of the OAU's member state governments themselves assumed power through military coups. (30)

      The Lome Declaration defined several situations that constitute an unconstitutional change of government:

      i) a military coup d'etat against a democratically elected Government;

      ii) intervention by mercenaries to replace a democratically elected Government;

      iii) replacement of a democratically elected Government by armed dissident groups and rebel movements;

      iv) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections. (31)

      The Lome Declaration provided a variety of sanctions that could be taken incrementally in response to unconstitutional change. (32) In the initial stage, the OAU would condemn the coup and refuse to recognize the government. (33) Next, the perpetrators would be given up to six months to restore constitutional order, during which time the unconstitutional government would be suspended from OAU policy organs. (34) After the six-month period, the OAU could impose targeted sanctions, including visa denials, restrictions on government-to-government contacts, and trade restrictions. (35)

      The primary responsibility for implementing the Lome Declaration belonged to the Central Organ of the OAU Mechanism for Conflict...