A tortuous road for the African Charter on Democracy, Elections and Governance
As the AU prepares to observe a number of elections before the end of the year the principles of the African charter will again be put to the test.
Last month a Constitutional Term Limits Summit was held in Niamey, Niger, to discuss the issue of constitutional amendments through which many African heads of states have sought to extend their rule. The summit was hosted by Niger’s outgoing president Mahamadou Issoufou.
Constitutional amendments pose a serious problem for peaceful transitions of power in Africa, even though this principle is enshrined in the African Union’s (AU) African Charter on Democracy, Elections and Governance. Adopted in January 2007, the charter is the AU’s policy to promote and cement democracy, free and fair and transparent elections, as well as good governance on the continent. It came into force in February 2012.
As the AU prepares to observe a number of elections before the end of the year – notably in Namibia, Mauritius, and as authorities in Guinea are seeking to amend the constitution to allow 82-year-old Alpha Condé to run for a third term – the principles of the charter will again be put to the test.
As the AU prepares to observe a number of elections before the end of the year the principles of the charter will again be put to the test
The charter is a comprehensive policy document that covers a wide range of areas, including ‘democracy and respect for human rights; rule of law premised on the supremacy of the constitution; the holding of democratic and credible elections; prohibition and rejection of unconstitutional changes of government; promotion and protection of the independence of the judiciary; sustainable development and human security; fostering citizen participation; transparency and accountability in the management of public affairs’.
Thirty-four countries have so far ratified the charter, 15 have signed but not ratified, and six have not signed. After the push for democracy in the late 1980s and early 1990s, the continent experienced some setbacks that hindered the establishment of burgeoning democratic institutions and a nascent democratic culture in post-independence Africa. The rationale for the charter was to contribute to the revitalisation and consolidation of democratic structures and accompanying practices.
The rationale for the charter was to contribute to the revitalisation and consolidation of democratic structures
Although the number of ratifications and signatures is commendable, the charter still faces numerous challenges, not least of which are the implementation and domestication of its principles by those countries.
States that have ratified are also required to submit a biennial report on the measures taken to implement the charter from the day it came into force for them. Since 2012, only two reports have been submitted - Togo and Rwanda who ratified the charter in March 2012 and July 2010, respectively. Ghana who ratified the charter in October 2010, is said to be in the process of submitting its report.
While the charter is not a panacea for solving all the continent’s democratic ills, it is part of the solution to the many governance problems that create conflict and instability in Africa. It is therefore important to continue encouraging its ratification, domestication and implementation.
What are the challenges?
The main stumbling block for states when it comes to ratification, or domestication or implementation, is their commitment to take the necessary steps to effect the changes needed.
The main stumbling block for states is their commitment to take the necessary steps to effect the changes needed
Other factors impeding ratification by the 15 signatory states could be circumstantial or structural. A state may have signed the charter in particular circumstances, but didn’t follow up with ratification simply because the national institutions in charge of taking the next steps failed to do so. This could be because it isn’t a priority for those authorities.
So while a state’s president may have signed the charter during an AU meeting, the ratification may involve various ministerial departments and parliament, with one of the entities having to take the lead and involve all national stakeholders in the process.
Ratification of the charter typically requires – after commitment from the highest authorities – all key government and non-governmental stakeholders to work together during this process. Non-governmental organisations and civil society organisations can also push government to follow through with ratification. However this can only happen where political space is available for these organisations to operate.
Getting this process right – top-down or bottom-up, or both – is particularly important as the challenges to ratification also apply to the charter’s implementation and domestication.
Ratifying states also need to take adequate measures to align their national institutions and mechanisms to the principles enshrined in the charter. This means that, ideally, all stakeholders must again partake in a process that weaves or reweaves as inclusive and broad a ‘social contract’ among people as possible. States are often cautious about the cost – financial and more importantly political – of making such institutional changes. This may largely explain why ratifying states haven’t complied with their reporting obligations.
States are often cautious about the cost – financial and more importantly political – of making such institutional changes
While for many countries national legislation might be on par with the charter’s principles, the next step of its implementation and domestication becomes the real test. This is a process that demands commitment from all stakeholders, and because each country will be different, it is important that states report back.
Convoluted views and aspirations about democracy
Although most AU member states have signed and ratified the charter, there seems to be a gap between this and what they believe and practise. Democracy continues to be subverted in many ways, and it’s crucial to keep strengthening democratic institutions.
Democracy continues to be subverted in many ways, and it’s crucial to keep strengthening democratic institutions
Debates around democracy in Africa have tended to emphasise the fact that democracy is not perfect anywhere in the world, that the continent cannot duplicate a democratic model that doesn’t fit its realities. The conclusion is that Africa needs its very own brand of democracy.
While pointing out the flaws of the liberal democratic model is understandable, this way of framing the discussion raises questions.
First, are the charter’s principles not ‘African’ enough? This could constitute perhaps the biggest challenge to the charter – a dissonance between its values and an ideological or philosophical detachment from them by those translating the charter’s vision into action.
Second, what would an ‘African democratic model’ look like? Is it about democratic values or is it about how those are turned into democratic institutions and practices, or even a democratic ‘culture’?
Answers to these questions can help refocus the debate about what democracy should be like on the continent, and how it can benefit the people of Africa.
