Is the African Charter on democracy strong enough?

When it was first adopted in 2007, the African Charter on Democracy, Elections and Governance (the African Charter) raised the hopes of democracy activists, who believed this would strengthen good governance on the continent. Last month the Peace and Security Council (PSC) asked whether it has managed to make a difference.

In the past few decades, most African countries have held regular elections, albeit often flawed and contested. Fewer coups d’état on the continent are largely the result of the AU’s rejection of coups, in line with the African Charter and the AU Constitutive Act.

Yet democracy is subverted in many other ways and the AU has no illusions about this. Last year, when the AU marked the 10th anniversary of the African Charter, the outgoing chairperson of the AU Commission (AUC) Dr Nkosazana Dlamini Zuma admitted that the continent had recorded some modest gains that were outweighed by persistent governance deficits. 

Democracy is subverted in many other ways and the AU has no illusions about this

Dr Khabele Matlosa, the director of the AU’s Political Affairs Department, told the PSC during the open session on 22 August 2018 that only Togo had submitted a report on compliance to the African Charter since it had entered into force in February 2012. Thus far, the African Charter has been signed by 46 member states and ratified by 31.

Democracy deficits

The slow pace of democratisation in Africa is highlighted by the Economist Intelligence Unit’s 2017 Democracy Index, which indicates that many African countries remain under authoritarian and hybrid regimes. Their democratic institutions have serious weaknesses.

As a result of weak democracies, the continent also suffers from development and service delivery deficits. A 2016 ISS study highlights that democracy in Africa often fails to translate into development, because of the lack of governance capacity among leaders. According to the report, many leaders come to power through patronage networks and rigged elections, a situation created by the relative absence of competitive electoral systems.

The Ibrahim Index of African Governance (IIAG) of 2017 also affirms that there has been an overall decline in good governance in Africa.

It is crucial to strengthen democratic institutions

In addition, the 2018 Freedom House findings show that the transfer of power to ‘new leaders from old parties may fail to bring reform’. In Zimbabwe, for example, the new regime that replaced former strongman Robert Mugabe continues to use heavy-handed military measures to squash dissent. This illustrates how new regimes struggle to extricate themselves from the past.

As a result, it is crucial to strengthen democratic institutions.

What can be done?

PSC meetings, electoral observation missions and various continental assessment mechanisms such as the African Peer Review Mechanism provide unique opportunities for the AU to hold members accountable to their commitment to democracy. The African Charter is the ideal mechanism for the AU to do so, since it sets a standard for good governance and free and fair elections. However, the AU also needs to deal with gaps in the charter that perpetuate the subtle subversion of democracy in member states.

The African Charter sets a standard for good governance and free and fair elections

This entails finding solutions to the increase in constitutional coups and ‘popular uprisings’ on the continent.

Constitutional coups and the African Charter

Article 23.5 of the charter prohibits ‘any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’. However, in numerous cases African leaders have used their leverage to remove term and age limits from their countries’ constitutions, enabling them to stay in power.

Successful constitutional amendments have been witnessed in Rwanda, Burundi, Uganda, the Republic of Congo, Gabon, Chad, Djibouti and Equatorial Guinea. This has paved the way for the re-election of incumbent strongmen. In these countries the political situation remains tense as sitting leaders and their patronage networks struggle to maintain popular support.

A report by the African Centre for Strategic Studies on term limits in Africa shows that the 18 countries that do not observe two-term limits are more unstable than those with two-term limits. ‘A third of these 18 countries are facing armed conflict. In contrast, just two of the 21 countries with term limits are in conflict.’

Countries that do not observe two-term limits are more unstable

Clearly, constitutional amendments are not problems in themselves. Article 10.2 of the AU Charter encourages member states to obtain constitutional amendments through a referendum, but often these referendums and subsequent elections are manipulated by the incumbents.

Concern over such amendments is also highlighted by the 2015 Afrobarometer study, which shows that in 34 countries, three-quarters of those surveyed are in favour of presidential term limits.

Even in cases where citizens supposedly want a political actor to stay on in power, as in Rwanda, too little is being asked about the priority of developing strong democratic institutions. These are important to avoid domination not only by one individual but also by incumbent parties that wield control through undemocratic means.

Lack of enforcement by the AU

The AU, guided by the African Charter and the Lomé Declaration on unconstitutional changes of government, has clear guidelines on how to deal with issues relating to overt military coups and refusal to leave power when the incumbent loses elections.

Thus far, however, the AU has been tight-lipped about constitutional amendments, even though they are listed in the charter as one of  five ‘illegal means of accessing or maintaining power’ that are collectively defined as the unconstitutional change of government.

The AU has been tight-lipped about constitutional amendments

The AU has not instituted an inquiry mission to verify if any of the above-mentioned constitutional amendments go against Article 23.5 of the Charter. Clearly, the AUC has not fulfilled its mandate to ‘develop benchmarks for implementation of the commitments and principles of this Charter and evaluate compliance by State Parties’ in accord with Article 44.2 of the charter.

In 2014 the PSC had asked the AUC to ‘collect the Constitutions of the all AU Member States for reference and ultimate study, subject to the availability of funds in order to identify inconsistencies with good governance and standard constitutionalism and therefore constitute a potent threat to social order, peace and stability’. This has not been done and it is unclear if it is because of resource constraints or political considerations on the part of the AUC officials.

The PSC has also not put countries facing constitutional amendments on its agenda, in line with the PSC Protocol, which mandates it to institute sanctions in cases of unconstitutional changes of government.

Instead, constitutional amendments are relegated to mere domestic issues without considering the fact that they are very often obstacles to lasting peace and democratic consolidation in member states.

Popular uprisings and the AU Charter

Additionally, the charter does not say anything about the different forms of ‘popular uprisings’ that have, for example, caused the overthrow of incumbent governments in Libya, Egypt and Tunisia in 2011, as well as in Burkina Faso (2014) and Zimbabwe (2017).

The charter does not say anything about popular uprisings

It could be argued that the overthrow of a dictatorship is good for democracy, but there are many concerns over what kind of government could come to power following such an overthrow. Popular uprisings can be hijacked by actors that perpetuate or worsen the political situations in those countries, as was clearly shown in Libya.

After the popular uprisings that led to the overthrow of regimes in North Africa in 2011, there initially was concern within the AU about the ability of AU norms and principles to deal with such events. The PSC in April 2014 called for a special summit of the AU Assembly for high-level guidance relating to the overthrow of authoritarian regimes by popular revolt. This summit was never held.

The PSC also never established a sub-committee to consolidate the AU framework on how to respond to such situations, as it had decided.

Clearly, the PSC and the AUC have to develop guidelines on how to deal with popular uprisings and constitutional amendments, alongside other electoral-related efforts to deepen democracy in Africa.

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