Stacy-ann Elvy, Towards a New Democratic Africa: the African Charter on Democracy, Elections and Governance

• Citation: Vol. 27 No. 1
• Publication year: 2010
• topic: Constitutional Law

TOWARDS A NEW DEMOCRATIC AFRICA: THE AFRICAN CHARTER ON DEMOCRACY, ELECTIONS AND GOVERNANCE

Stacy-Ann Elvy*

ABSTRACT

The African Charter on Democracy, Elections and Governance (“ADC”) recently entered into force on February 15, 2012. The main goal of the ADC is the encouragement and promotion of democracy and human rights on the African continent. The ADC is the first binding regional instrument adopted by member states of the African Union (“AU”) that attempts to comprehensively address all of the elements necessary for the establishment of liberal democracies. The ADC also contains a number of expansive provisions regarding unconstitutional changes of government. For instance, the ADC is the first legal instrument adopted by member states of the AU that acknowledges that an unconstitutional change of government includes any amendments to the constitution or legal instruments of a member state that infringe on the principles of democratic change of government. Many African heads of state have amended the constitutions of their respective countries to retain power. Additionally, many Latin American and African countries continue to struggle to establish viable long-term liberal democracies. In 2007, the AU and the Organization of American States (“OAS”) participated in an inter-regional conference entitled the “OAS–AU Democracy Bridge,” aimed at promoting democracy and good governance in the Americas and Africa. Given the express commitment of the AU and the OAS to the promotion of liberal democracies, this Article critiques the ADC by providing a comparative analysis of both the Inter-American Democratic Charter (“ODC”) and the ADC and identifies areas in which the ADC may be strengthened. Despite the expansive provisions contained in the ADC and in light of the ineffectiveness of earlier instruments adopted by the AU to promote democracy, this Article contends that in order to take concrete steps toward achieving democracy in

* Associate Professor of Law, New York Law School (J.D., Harvard Law School; B.S., Cornell University). I am grateful to Dean Penelope Andrews, Professor Molly Land, Professor Sudha Setty, Professor Bridgette Baldwin, and Professor Cindy Galway Buys for their invaluable comments on this Article. I would also like to thank my research assistants Olivia Weil, Brittney Sharp, and Alexis Barkis.

Africa, the AU must not only obtain widespread state ratification of the ADC— with the added challenge of using and enforcing its provisions in the face of entrenched practices to the contrary—but the AU must also heed the lessons learned from the OAS’ attempts to use the ODC to foster democracy in Latin America.

INTRODUCTION 43

1. THEORIZING DEMOCRACY 48

2. THE AU’S PRIOR EFFORTS TO PROMOTE DEMOCRACY IN AFRICA 55

   1. African Charter and Constitutive Act 55

   2. Lomé Declaration 59

   3. Elections Declaration 63

   4. Corruption Convention 67

   5. NEPAD Democracy Declaration 72

   6. Colonialism and Democracy in Africa 77

3. THE AFRICAN DEMOCRATIC CHARTER AND THE OAS DEMOCRATIC CHARTER 80

   1. Comparative Analysis of the OAS Democratic Charter and

      the African Democratic Charter 81

      1. Democracy as a Legal Right 82

      2. Unconstitutional Changes of Government and Sanctions 85

      3. Extradition 94

      4. Individual Claims 97

      5. Workers’ Rights 98

      6. Monitoring Elections 99

      7. General Enforcement Mechanism 102

      8. State Reporting 104

   2. The OAS Democratic Charter in Action: Lessons for the AU 105

1 Venezuela 106

1. Honduras 107

2. Nicaragua 111

3. Ecuador 112

CONCLUSION 113

INTRODUCTION

On January 30, 2007, member states of the African Union (“AU”) adopted the African Charter on Democracy, Elections and Governance (“ADC”).1 However, the ADC only recently entered into force on February 15, 2012.2 The main goal of the ADC is the encouragement and promotion of democracy and human rights in Africa.3 With the exception of a few African countries such as Mauritius, Ghana, South Africa, and Botswana, most African countries generally rank poorly on leading international democracy indices.4 Thus, improvement in this area is sorely needed. Zimbabwe is an example of an African country that continues to struggle with achieving a viable democracy. Zimbabwean President Robert Mugabe has controlled Zimbabwe for the last thirty years.5 In the 2008 elections Mugabe accused his political opponents, the Movement for Democratic Change,6 of treason and Mugabe placed significant restrictions on fundamental human rights that are central to maintaining democratic order, including freedom of expression and freedom of the press.7

1. African Charter on Democracy, Elections and Governance arts. 2–4, Jan. 30, 2007, http://www.au.int/ en/sites/default/files/AFRICAN_CHARTER_ON_DEMOCRACY_ELECTIONS_AND_GOVERNANCE.pdf [hereinafter ADC]. This Article uses the term “Africa” to refer to the African countries that are member states of the AU. For a list of AU member countries, see Ratification Status of the ADC, infra note 2.

2. African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Charter on

   Democracy, Elections and Governance (Jan. 17, 2012), http://www.chr.up.ac.za/images/files/news/news_2012/ african_charter_democracy_governance.pdf [hereinafter Ratification Status of the ADC].

3. ADC, supra note 1.

4. See ECONOMIST INTELLIGENCE UNIT, DEMOCRACY INDEX 2011: DEMOCRACY UNDER STRESS 2–8 tbl.2

   (2011), available at http://www.sida.se/Global/About%20Sida/Så%20arbetar%20vi/EIU_Democracy_Index_ Dec2011.pdf (ranking Mauritius as twenty-fourth, South Africa as twenty-eighth, and Botswana as thirty-third in its worldwide democracy index, with the next highest rank among African states being Mali at sixty-third); see also Arch Puddington, Freedom in the World 2013: Democratic Breakthroughs in the Balance, FREEDOM HOUSE 14–18 (2013), http://www.freedomhouse.org/sites/default/files/FIW%202013%20Booklet%20-%20for

   %20Web.pdf (describing the “Freedom Status” of Ghana, Mauritius, Botswana, and South Africa as “Free” with relatively high ranks in political rights and civil liberties); Daniel Kaufmann & Aart Kraay, Government Indicators: Where Are We, Where Should We Be Going? 41 fig.2 (World Bank, Policy Research Working Paper No. 4370, 2007), available at http://info.worldbank.org/governance/wgi/pdf/wps4370.pdf (showing that Botswana is successfully combating corruption, especially when compared to other African states).

5. See LAUREN PLOCH, CONG. RESEARCH SERV., RL34509, ZIMBABWE: 2008 ELECTIONS AND

   IMPLICATIONS FOR U.S. POLICY 1 (2008).

6. Our History, MOVEMENT FOR DEMOCRATIC CHANGE (Nov. 19, 2009), http://www.mdc.co.zw/index. php/our-party/our-history.html.

7. LAUREN PLOCH, CONG. RESEARCH SERV., RL32723, ZIMBABWE: BACKGROUND 19–21 (2010)

   (describing a campaign of violence staged against the Movement for Democratic Change and its supporters during a 2008 runoff presidential election); see also HUMAN RIGHTS WATCH, WORLD REPORT 2012, at 200–01 (2012), available at http://www.hrw.org/sites/default/files/reports/wr2012.pdf; PATTI MCCRACKEN, INSULT LAWS: INSULTING TO PRESS FREEDOM 86 (Ronald Koven ed., 2012), available at http://www.freedomhouse. org/sites/default/files/Insult%20Law%20Report.pdf.

   Given the lack of democratic practices in most African countries, the following question remains: can the ADC truly promote democracy in Africa? This Article addresses this question by conducting a comparative analysis of similar instruments in other regions and earlier instruments adopted by the AU to promote democracy.

   
   

   The ADC contains a number of expansive provisions on unconstitutional changes of government. For instance, the ADC is the first regional instrument adopted by member states of the AU that acknowledges that an unconstitutional change of government includes any amendments to the constitution or legal instruments of a member state that infringe on the

   principles of democratic change of government.8 Many African heads of state

   have amended the constitutions of their respective countries to keep themselves in power. For example, Cameroonian President Paul Biya has been in power since 1982; because Cameroon’s constitution was amended to eliminate a two-term-presidential limit, permitting Biya to continue to run for

   re-election and remain in power.9 Similarly, Chadian President Idriss Déby

   was elected to a third presidential term after a constitutional referendum eliminated presidential limits,10 and Ugandan President Yoweri Museveni was re-elected to a third term after the Ugandan constitution was amended in 2005 to abolish presidential term limits.11

   
   

   Many member states of the AU refused to ratify the ADC because of the charter’s expansive provisions regarding the promotion of democracy.12 Despite the reluctance on the part of a majority of African states to ratify the ADC, a few brave states have executed and ratified the charter. To date, the

   
   

8. ADC, supra note 1, art. 23(5).

9. ORG. FOR ECON. CO-OPERATION & DEV. [OECD], INTERNATIONAL DRIVERS OF CORRUPTION 44

   (2012), available at http://www.oecd.org/development/governance-development/49263997.pdf; Cameroon: Freedom in the World 2012, FREEDOM HOUSE, http://www.freedomhouse.org/report/freedom-world/2012/ cameroon (last visited Mar. 20, 2013).

10. Daniel N. Posner & Daniel J. Young, The Institutionalization of Political Power in Africa, 18 J.

    DEMOCRACY 126, 133–34 (2007); Chad: Freedom in the World 2012, FREEDOM HOUSE, http://www.

    freedomhouse.org/report/freedom-world/2012/chad (last visited Mar. 20, 2013).

11. Posner & Young, supra note 10, at 133–34; Uganda: Freedom in the World 2012, FREEDOM HOUSE, http://www.freedomhouse.org/report/freedom-world/2012/chad (last visited Mar. 20, 2013).

12. AU Turns down Democracy Charter, BBC NEWS (June 30, 2006), http://news.bbc.co.uk/2/hi/africa/ 5132692.stm. To date, the following countries have not ratified the ADC: Algeria, Angola, Benin, Botswana, Central African Republic, Cape Verde, Cote d’Ivoire, Comoros, Congo, Djibouti, Democratic Republic of Congo, Egypt, Equatorial Guinea, Eritrea, Gabon, Gambia, Kenya, Libya, Liberia, Madagascar, Mali, Malawi,

    Mozambique, Mauritius, Namibia, Sahrawi Arab Democratic Republic...