Can the AU respond effectively to unconstitutional changes of government?

The 16th extraordinary summit of the African Union (AU) on 28 May 2022 in Malabo, Equatorial Guinea, will debate the most urgent continental peace and security priorities. Chief among them is unconstitutional changes of government (UCGs) against the backdrop of the sharp rise in military coups in the past two years. Mali, Guinea, Burkina Faso, Sudan and Chad are grappling with restoring full civilian rule following military takeovers.

This indicates that existing continental frameworks and mechanisms on UCGs have failed to deter the overthrow of sitting governments by military juntas. Mali and Sudan also experienced further coups while in political transitions brokered by the Economic Community of West African States and the AU. This highlights the challenges that response mechanisms by both regional and continental bodies face in assisting countries’ transition to democratic rule.

Summit discussions on UCGs will be the culmination of deliberations on the issue since 2019. In 2022 alone, the Peace and Security Council (PSC) focused three sessions on UCGs, including an AU continental reflection forum from 15 to 17 March in Accra, Ghana.

A successful outcome will mean consensus among member states on how they will adapt and, in some instances, drastically shift their approach to dealing with UCGs. All states agree that UCGs require urgent responses from the AU and regional economic communities (RECs). However, lingering divergence on specific processes and actions may render the summit's outcomes purely rhetorical, lacking impact on AU policies and actions.

What will be tabled at the summit?

According to the draft summit agenda,  Sierra Leone President and Chairperson of the African Peer Review Forum Julius Maada Bio will lead the discussion on UCGs. The official topic is ‘Unconstitutional change of government – consolidated actions to strengthen constitutionalism and democracy’.

AU frameworks and mechanisms have failed to deter overthrows of sitting governments by military juntas

The summit is expected to deliberate on why the AU, despite relatively robust UCG response mechanisms, coups are on the rise. The summit is expected to endorse a modified version of the Accra Declaration. This was developed during the PSC meeting with member states, civil society organisations, RECs and partners at the Accra forum from 15 to 17 March.

Among the main issues of the declaration are addressing the legitimate concerns of citizens, including the socio-economic and governance factors that lead to UCGs. Also featuring are the manipulation of laws and tampering with constitutions by incumbents to modify or eliminate constitutional term limits, and to expand their powers.

The declaration proposes several recommendations for adoption by member states, RECs and the AU in preventing UCGs. These include a guideline on the amendment of constitutions based on AU frameworks, and ensuring that constitutional amendments adhere to ‘democratic rights and are based on national consensus’.

It further recommends that the PSC consistently apply AU normative frameworks on UCGs and uphold constitutionalism among member states. It also calls for the revitalisation of the PSC sub-committee on Sanctions to develop different levels of punitive measures against deviants.  

External interference?

Also on the summit agenda is the contentious role of ‘internal or external interference’ in the overthrow of sitting governments. The ousting of Muammar Gaddafi by NATO forces in 2011 with local armed opposition groups is fresh in many member states’ minds. It is viewed as the perfect example of how popular protests are hijacked by internal and external interest groups to effect regime change.

Gaddafi’s ousting is still viewed as an example of hijacking popular protests for regime change

There is a similar conviction that recent military coups in Africa have had strong backing from both African and non-African actors. This will, however, be difficult for the AU to prove. With the change in global political dynamics, experts believe that economic pressures coupled with staged popular protests will become the modus operandi for regime change. This is a departure from the assassinations of heads of state and support to armed opposition of the post-independence and the Cold War era.

While there may be truth in this analysis, it is a slippery slope to categorise all protests as such, as it further stifles the right of citizens to protest against injustice.

Adoption of the Accra Declaration

The PSC noted and endorsed the Accra Declaration in April 2022, and submitted it for consideration and adoption during the extraordinary summit. While this indicates that the document is palatable to member states, it is not a guarantee it will be adopted.

The AU’s response to military coups has been reactive despite extensive early warning signs, particularly mass protests agitating for change. Protests are often preceded by incumbents’ attempts to extend their term or expand their powers through constitutional amendments. To date, the AU has sanctioned only military coups, although the African Charter on Democracy, Elections and Governance (ACDEG) calls for sanctions against all forms of UCGs, including constitution tampering.

More than 10 heads of state attending the summit have themselves amended their constitutions to extend their term and/or remove term limits entirely. It is highly unlikely then that there will be a strong call to curb constitutional amendments.

More importantly, however, adoption of the Accra declaration does not guarantee implementation, especially as it specifies its provisions will be implemented in consultation with and with approval of the member state concerned. States have never allowed the AU to discuss political and governance issues they consider to be their internal affairs, protected under the AU’s principle of sovereignty.

The summit should call for urgent finalisation of guidelines for amending national constitutions

Almost all member states believe constitutional amendments fall within a state’s internal affairs. Thus, it will be near impossible for the PSC to discuss popular protests against sitting governments, the manipulation of electoral laws and incumbent constitution tampering to extend term limits.

The February 2022 AU summit proposed a high-level hybrid committee of sitting and former heads of state and government to engage incumbents who try to amend national constitutions ‘without national consensus’. If such a  committee is formed, its ability to carry out its mandate will depend on the goodwill of incumbents.

Member states will also continue to diverge on how the AU should respond to military coups following popular uprisings. While some AU diplomats call coups such as those of Sudan in 2019, Mali in 2020 and Guinea in 2021 as ‘civilian coups’ that should be treated differently from UCGs, others strongly disagree.

Another contended point is whether the AU should treat as UCGs the resignation of incumbents under duress as in Algeria and Zimbabwe in 2019. The PSC did not sanction either country at the time. Other issues lacking consensus include whether the transitional term limit of six months following military coups should be amended, and whether AU sanctions against UCGs should be expanded.

How can the AU better respond to UCGs?

AU UCG response depends on the extent to which member states abdicate their sovereignty to allow monitoring of compliance to UCG policies, including the Lome Declaration and ACDEG. Following past decisions, the summit should call for urgent finalisation of guidelines for amending national constitutions.

The AU’s ability to monitor compliance should also be enhanced, including expanding the capabilities of the African Governance Architecture and the AU Legal Counsel. This can help empower non-political units within the AU to monitor and provide early warning advice to the PSC for swift response to UCGs.

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