Burkina Faso: where does it leave the AU norm on unconstitutional changes of government?

The African Union’s (AU) response to events in Burkina Faso since the ousting of former president Blaise Compaoré on 31 October raises a number of important questions for the AU. This was the first time sanctions were not automatically applied after the AU found that a coup d’état had taken place. Does this mean a two-week delay will now become the norm? The High-Level Panel on Egypt already suggested there should be guidelines for the AU to follow in cases of popular uprising, but these have not yet been drawn up.

The Burkina Faso situation also highlights the role of the army in politics in Africa, as well as the importance of the AU’s acting before a situation reaches crisis level. It is crucial that the AU speaks up on the issue of presidential term limits, given that a number of other countries are also facing the spectre of possible similar constitutional changes by incumbent leaders.

Reflecting the spirit of the AU norm on unconstitutional changes of government, the interim president and ministers in the transitional government are barred from standing in elections

The Peace and Security Council (PSC) held a session on 18 November to review the situation in Burkina Faso. This came at the end of the two-week deadline it had given the Burkinabe military for the transfer of power to a civilian authority. In an earlier decision, on 3 November, the PSC had warned that if progress were not made in transferring power to a civilian authority, it would ‘take all appropriate measures, including the suspension of Burkina Faso from participating in [the] AUs activities and the imposition of targeted sanctions against all those who would be obstructing efforts’ towards the transition to civilian authority.

The AU was not alone in highlighting the urgency of transferring power to a civilian authority. As people protested against the army’s assumption of power, discussions over a civilian-led transition started in earnest. Following consultations, on 9 November political parties, civil society organisations and religious leaders adopted a plan for a return to civilian rule. Complying with the PSC’s 3 November decision, which had affirmed the continuing validity of Burkina Faso’s constitution, on 15 November the army announced the restoration of the 1991 Constitution. Two days before the PSC’s meeting to review progress, the various political and social forces in Burkina Faso signed a transitional charter setting the framework for a civilian-led transition tasked with the responsibility of organising free, fair and credible elections.

According to the transitional charter, a 90-member transitional council will serve as the country's parliament, while the prime minister will head a 25-member cabinet. Reflecting the spirit of the AU norm on unconstitutional changes of government, it further stipulates that the interim president and ministers in the transitional government are barred from standing in elections expected to be held a year from now.

Compliance with the PSC’s request for civilian rule

On 17 November, a day before the end of the AU’s two-week deadline, the various stakeholders overcame their differences, which had delayed the naming of the interim civilian leader, and announced that Michel Kafando, a former career diplomat, would be the interim president. The same day, in a clear sign that Burkina Faso would not face the PSC’s threat of sanctions, AU Commission Chairperson Dr Nkosazana Dlamini-Zuma (who was responsible for the PSC’s decision to give Burkina Faso a two-week deadline) issued a communiqué welcoming the progress made towards the establishment of a civilian-led transition as ‘significant’.

By the time the PSC convened its meeting on Burkina Faso on 18 November, the only step that was left to fully satisfy its demands of 3 November was the swearing in of the interim president and the official handover of authority to him. Accordingly, in the communiqué it adopted at its meeting on 18 November, the PSC decided ‘in anticipation of the transfer of power to the newly-designated Transitional President, scheduled to take place on 21 November 2014, not to take the measures that were envisaged in paragraphs 9 (iii) and 14 of communiqué PSC/PR/COMM.(CDLXV), including the suspension of the participation of Burkina Faso in the activities of the AU’.

At the 18 November meeting, the PSC was briefed by the Special Representative of the Chairperson, Edem Kodjo. The Council received both additional information from the AU Commission and a presentation by the representative of Ghana on the memorandum on the situation in Burkina Faso submitted by the president of the Commission of the Economic Community of West African States (ECOWAS).

In the light of the developments in Burkina Faso at the time of the PSC meeting, there were no differences among the PSC’s members during the deliberations. Although some members expressed concern over the reference to the ECOWAS memorandum on Burkina Faso, the wording that the Council ‘takes note of’ the memorandum was accepted.

Implications for the AU norm on unconstitutional changes of government

Despite the AU’s successful engagement in the Burkina Faso crisis without its having to resort to the use of sanctions, the case has raised a number of questions on the AU norm on unconstitutional changes of government.

First, this was the first time that the AU did not use sanctions immediately after determining that an army’s seizure of power was a coup. This raises questions on whether this will be a precedent that the AU will follow in future instances of unconstitutional changes of government. If this were to happen, it would amount to a complete revision of the provisions of the AU norm and its long-established practice that envisages the automatic application of sanctions once a determination is made regarding the occurrence of an unconstitutional change of government. The relevant legal norm and practice has been for the AU to work towards the restoration of constitutional order in the affected country, after sanctioning it.

If circumstances are such that the AU does not want to apply sanctions automatically, it would be best to suspend both the determination of the occurrence of unconstitutional change and the sanctions for the duration of the two-week period.

The AU remains ambivalent, if not completely reluctant, to reject attempts by incumbent leaders to amend their constitutions in order to remove term limits

Second, the experience in Burkina Faso has highlighted gaps in taking early action from the time early warnings are issued and before the situation reaches a crisis level. In this regard, the PSC itself acknowledged that there is a ‘need for renewed efforts towards conflict prevention, based on the relevant AU instruments and [the] Council’s communiqués’.

Third, and most importantly, the AU remains ambivalent, if not completely reluctant, to reject attempts by incumbent leaders to amend their constitutions in order to remove presidential term limits, which has now become a trigger of instability and violence in Africa. A clear position by the AU on this would enable it to dissuade member states from making such constitutional amendments. In this context, the clear statement rejecting such constitutional amendments in the ECOWAS memorandum is a policy position worthy of emulation by the AU. As no fewer than eight African presidents are nearing the end of their term limits in the next three years (in Benin, Burundi, the Republic of Congo, the Democratic Republic of the Congo (DRC), Liberia, Rwanda, Sierra Leone and Tanzania), the importance of such an AU stance cannot be overemphasised. Given that moves to extend presidential term limits in the DRC and Burundi have already triggered protests and tension, such a position would enable the AU to engage these countries early enough and work towards preventing such attempts from pushing these and other countries to the brink, as has been the case in Burkina Faso.

Fourth, the crisis in Burkina Faso has once again highlighted the difficult and controversial role of the army in politics. Although the PSC’s requirement of a civilian-led transitional administration was greeted with the appointment of the interim president in Burkina Faso, the army has become embedded in the transitional government. Apart from military strongman Lieutenant Colonel Isaac Zida, who received the powerful portfolios of Prime Minister and Minister of Defence, three other army officers have posts in the 25-member cabinet. This includes the interior ministry. Although these officers are barred from participating in the election that will be held at the end of the one-year transitional period, their cabinet membership will entrench the army in the country’s transitional politics and beyond. Clearly the army used the transfer of authority to a civilian president as a cover to avoid sanctions from the AU and ECOWAS. In entrenching itself in the transitional authority subsequently, it evaded the norm on unconstitutional changes of government and outsmarted both ECOWAS and the AU.

Fifth and finally, Burkina Faso again put the spotlight on the question of popular uprisings in relation to the AU norm on unconstitutional changes of government. Taking note of the difficulties encountered in applying the AU norm on unconstitutional changes of government in the context of popular uprisings, the AU High-Level Panel on Egypt in its final report recommended the elaboration of a guideline to determine when popular uprisings were compatible with this AU norm. In the light of the events in Burkina Faso, it is worthwhile to follow up on this recommendation and articulate such a guideline. As suggested by the High-Level Panel on Egypt and endorsed by the PSC when it adopted the report, the elements for such a guideline are:

  • The descent of the government into total authoritarianism to the point of forfeiting its legitimacy.
  • The absence or ineffectiveness of constitutional processes for effecting a change of government.
  • The popularity of the uprising, in the sense of attracting a significant portion of the population and involving people from all walks of life and ideological persuasions.
  • The absence of military involvement in removing the government.
  • The peacefulness of the popular protests.

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