The AU shuffles towards democracy, looking over its shoulder

Is Africa slowly turning the rhetoric of democracy into action? The Constitutive Act of the African Union (AU), which introduced to the continental body the values of democracy, rule of law and constitutionalism, is 13 years old. And its prohibition of seizing power unconstitutionally goes back even earlier to 2000, preceding the AU.

But the AU created a two-tier ranking of values, as Solomon Ayele Dersso, Head of the Peace and Security Council (PSC) programme at the Institute of Security Studies (ISS), pointed out at a seminar in Addis Ababa this week.

The AU implicitly ranked the prohibition against unconstitutional changes of government as a higher value by enforcing it with the sanction of suspension from membership of the AU.

It attached no sanction at all to undemocratic, illegal and unconstitutional behaviour more generally. The ban on unconstitutional changes of government was almost entirely interpreted as a prohibition on illegitimate means of seizing or retaining power, such as coups. This hierarchy of values raised the strong suspicion that Africa’s incumbents had just found a more sophisticated way of protecting themselves against usurpers. And many of them continued to behave in the sort of undemocratic and unconstitutional fashion that often triggered coups and rebellions – or mass protests, as was the case in Egypt and Burkina Faso.

But, as Dersso pointed out, the 2007 Charter on Democracy, Elections and Governance also contains a clause which says that tampering with the constitution in a way that thwarts the will of the people – for instance, by removing limits on presidential terms – can also be construed as unconstitutional change of power.

Had Africa’s incumbents just found a more sophisticated way of protecting themselves against usurpers?

This clause is coming into sharp focus this year when 18 elections are scheduled to take place across Africa, 12 of which the AU considers very sensitive and where it is engaging in active quiet diplomacy to prevent instability, the AU Commissioner for Political Affairs, Aisha Abdullahi, said at the AU this week.

In several of these polls and in some more elections next year, the trigger of instability is that incumbents are trying to amend their countries’ constitutionally enshrined terms limits, to remain in power. Burkina Faso was perhaps the prologue last year to a potentially explosive drama in several acts that looks set to unfold around the continent over this period.

There President Blaise Compaoré, until then seemingly a member in good standing of Africa’s elite club of presidents-for-life, was unexpectedly toppled in a popular uprising sparked by his attempts to remove the two-term limit from the constitution (he had, of course, been in power much longer than two terms, but the constitution was more recent).

As Dersso pointed out, the AU hesitated over Burkina Faso. It did not condemn Compaoré’s tampering with the constitution as an infringement of the AU’s prohibition against unconstitutional change/maintenance of government. But it didn’t condemn the popular uprising as such either, thus implicitly acknowledging that Compaoré had tried to use legal and constitutional methods for an inherently undemocratic and unconstitutional purpose.

Stephanie Wolters, Head of the ISS Conflict Prevention and Risk Analysis Division, described how similar attempts to remove constitutional term limits in the two Congos and in Burundi are also provoking instability and distracting these countries from attending to major problems.

The AU should be much more upfront in publicly condemning any efforts to change constitutions

In Burundi, President Pierre Nkurunziza is trying to stand for a third term this year, and in the Democratic Republic of Congo (DRC) and Republic of Congo, Joseph Kabila and Dénis Sassou Nguesso are respectively hoping to do so, despite official denials, in 2016.

In the Republic of Congo’s 2002 constitution the two-term limit is completely entrenched, and so Wolters said Sassou Nguesso and his ruling party were now trying to change the entire constitution, arguing that it was a post-conflict compromise document, which does not answer to today’s demands. Across the Congo River a similar drama is playing out. Wolters said it was pretty obvious to everyone that Kabila wants to run for a third term next year, though, like Sassou Nguesso, he has not publicly said so.

The DRC constitution also entrenches a two-term limit though, and Wolters said Kabila’s aides have already begun to insinuate into the public discourse that the constitution should be replaced entirely to adjust to modern realities.

In all three countries, though, the people – mostly young – are fighting back, dismayed and infuriated by what they rightly see as efforts by their leaders to drag them back to old Africa, which all of their countries have fought so hard to escape over the last decade or so. Opposition political parties and civil society are joining forces to mount courageous protests, as they did in Burkina Faso.

The governments are hitting back, arresting opposition leaders on trumped up charges and violently suppressing street protests as Kabila’s forces did this month, evidently killing scores of them. Wolters said these attempts of the leaders to cling to power were destabilising the countries and focusing all their political energies on this one issue, neglecting the business of running the state.

Yet the people are also registering important victories for democracy. In Burundi, Parliament defeated Nkurunziza’s draft bill to amend the constitution, by one vote, though Wolters said she was sure he would find another way to stay in power. In the DRC last week, Parliament finally withdrew a government bill that would have postponed elections until after a new census had been conducted. This was seen by the opposition as a ruse to keep Kabila in power indefinitely as properly counting all of Congo’s people would have taken years.

The background music of colonialism is still drowning out the foreground music of democracy

Is the AU helping the people to resist these efforts by die-hard incumbents to cling to power at all costs? Indirectly, at least, yes. As Dersso pointed out, the opponents of Compaoré’s attempt to amend the constitution were inspired by that clause in the Charter on Democracy, Election, and Governance, which deems tampering with the constitution to cling to power a form of unconstitutional change of government.

It would also seem the African street is inspired by a concomitant shift in the AU’s attitude towards popular uprisings, though it is still wrestling with the concept. When it drew up the draft list of crimes that the African Court could prosecute, it originally included unconstitutional changes of government but with an exception – inspired by the Arab Spring – for popular uprisings against oppressive, undemocratic governments. So it did not condemn the popular uprising that toppled Egypt’s long-time president Hosni Mubarak in 2011, and distinguished that from the forced removal of Mohammed Morsi in 2012, which it defined as a coup.

Dersso said the AU had also learnt lessons from Burkina Faso, and so was engaging in more energetic preventative diplomacy in other countries, like Togo, where incumbents are also clinging to power – as Commissioner Abdullahi suggested. So maybe that’s evolution: though clearly the AU should be much more upfront and proactive in jumping on and publicly condemning any efforts to change constitutions to cling to power.

And what message will it sending this week by electing the continent’s third-longest-serving and, at 90, certainly the oldest, leader, President Robert Mugabe as its chairperson for 2015? AU Commission Deputy Chair, Erastus Mwencha, defended the decision this week, saying it was democratic because the AU chooses its leaders on a regional rotation system, and Mugabe is the Southern African Development Community’s nominee.

The AU has declined such nominees before, though – or at least one, Sudan’s Omar al-Bashir. The real reason that it won’t decline Mugabe, though, as one South African official admitted is that because he is the West’s pariah, he is Africa’s hero. Africa is evolving politically. But for now, at least, the background music of colonialism is still drowning out the foreground music of democracy.

Peter Fabricius, Foreign Editor, Independent Newspapers, South Africa

Picture: © George Philipas / Africa Media Online