The AU has to look 'beyond the surface of elections' to uphold democracy

The PSC Report asked Dr Aisha Abdullahi, outgoing African Union (AU) commissioner of political affairs, what the AU is doing to uphold democratic freedoms on the continent. 

After four years as a commissioner, what is your assessment of the state of governance and the rule of law in Africa?

I believe the continent is experiencing three major trends in its quest for democratisation: advances, regression and stagnation. There have been notable advances.

According to Freedom House, in 1990 8% of countries on the continent were free, 32% partly free and 60% not free. In 2014 20% of countries were free, 39% partly free and 41% not free. While there may be disparities between states, the general continental trajectory indicates a positive democratic wave. We are still, however, concerned about what appears as a democratic regression in certain pockets of our continent. We have our work cut out for us.

The increasing number of peaceful elections and transfer of power in a considerable number of countries is also evidence of respect for electoral laws and the rule of law as anchored in national laws and AU instruments. Countries such as Nigeria, Cape Verde, Benin and Malawi, among others, witnessed the peaceful transfer of power from a ruling party to winning opposition parties.

The general continental trajectory indicates a positive democratic wave
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Also, there is an increasing practice where candidates disputing election results seek resolution through judicial means, such as in Kenya in 2013 and Zambia in 2016. We are also encouraged by the respect shown for the decisions of the electoral courts.

What mechanisms can the AU use to promote democratic governance?

Normatively, AU instruments such as the African Charter on Democracy, Elections and Governance, as well as mechanisms such as the African Peer Review Mechanism and the overarching African Governance Architecture, are helping to further entrench a culture of democratic governance on the continent. The establishment and strengthening of democratic institutions in most African states attests to this positive trend.

We are also beginning to see a more assertive role being played by women and youth in parliaments, political parties and the media.

In several circumstances, the AU has not hesitated to put its foot down where member states have blatantly violated shared values and norms. For example, the PSC imposed targeted sanctions on Burundi in 2015 that included a travel ban and asset freezes against all the Burundian stakeholders whose actions and statements contributed to the perpetuation of violence and impeded the search for a solution. The same applied in Burkina Faso, Madagascar and Guinea-Bissau in several instances.  

What are the challenges to democratisation that you speak about?

The continent still faces significant challenges in regard to governance and upholding the rule of law. We continue to witness worrying undemocratic practices such as infringements on the right to freedom of expression, speech and assembly, as well as the right to access information, including a shutdown of social media in states that hold regular elections.

The PSC imposed sanctions on Burundi in 2015 that included a travel ban and asset freezes
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The challenge for the AU is therefore to dig beyond the surface of regular elections and remain engaged on what happens before, during and after elections.

In addition, Africa’s pursuit of democracy and a human rights culture generally suffers from weak institutions and strong personalities in a few countries and this overshadows the institutional architectures in place.

There is also a worrying trend on the continent where incumbents harass opponents in the lead-up to and during elections and use other practices such as manipulation of electoral timetables to disadvantage the opposition. The AU continues to speak out against such practices.

What about human rights?

A major challenge for democratisation and the advancement of human rights is the scourge of terrorism, fundamentalism and violent extremism. The response to these threats by AU member states and the need to balance that with respect for fundamental rights and freedoms remain on the radar of the AU.

Africa’s pursuit of democracy generally suffers from weak institutions
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Lastly, we are also witnessing a shrinking civic space on the continent, limiting the participation of civil society in democratic governance spaces. Democracy, peace and development cannot be the preserve of the state alone. These three major imperatives for continental unity and integration in Africa should be the joint responsibility of the state, civil society and the private sector working in concert.

Elections remain a major source of tension in many AU member states – what role has the AU Commission (AUC) played to remedy this state of affairs?

The AUC’s role is informed by three normative frameworks governing elections in Africa: the Declaration on the Principles Governing Democratic Elections in Africa; the AU Guidelines for Election Observation and Monitoring Missions of 2002, and the African Charter on Democracy, Elections and Governance. Chapter 7 of this charter enjoins AU member states to hold regular, transparent, free and fair elections. These frameworks combined oblige the AUC to assess all the elections held on the continent to ascertain whether member states comply with their commitments through various instruments.

Since the elections in Kenya in 2013 we have started using a multipronged approach through various instruments such as pre-election assessment missions, high-level political missions to member states, the deployment of AU election observation missions, post-election follow-up missions, provision of technical support to election management bodies and preventive diplomatic mechanisms. The latter is done through regular political analyses as an early warning strategy. The AUC intervenes in political contexts through its preventive diplomatic mechanisms in collaboration with the Peace and Security Department as well as the Panel of the Wise.

There have been several cases of manipulation of the electoral processes on the continent. What will the AU do to ensure free and fair polls in the future?

We are witnessing a shrinking civic space on the continent
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We have been asked by the Commission to review all elections held in the period between 2012 and 2016. This review is meant to critically look at the lessons learnt from these observations and tease out salient points requiring policy and programmatic review, including engagements with member states.

While there have been several reviews made and additional components added to strengthen our electoral assistance programme broadly, there is a need for a total overhaul of the observation processes. This we are embarking on now.

This year was dedicated to human rights, with an emphasis on women’s rights. What were the achievements of the AU in this regard

Several important milestones have been achieved in the endeavour to better respect, protect and promote human rights in the continent.

During the 27th Ordinary Session of the AU Assembly in Kigali, Rwanda from 17 to 18 July 2016, Nkosazana Dlamini Zuma, the chairperson of the AUC, presented the African Gender Scorecard, a tool measuring the progress and achievements of AU member states on gender equality in various categories, ranging from socio-economic and political performance to development at the national level.

Almost all AU member states have achieved at least one of the AU gender-related goals, such as the promotion of health, education, employment and social welfare of women in their countries. The AUC also signed an MoU [Memorandum of Understanding] with the Network of African National Human Rights Institutions on improving synergy and collaboration in protection of human rights on the continent.

Awareness of human rights in general and particularly AU human rights instruments and mechanisms for redress of violations has deepened in 2016. Four regional youth consultations were, for example, held in Namibia, Uganda, Ghana and Tunisia.

The department has also conducted training of human rights observers, who were sent to places such as Mali, Somalia, the Democratic Republic of the Congo and South Sudan. Currently, the AU has a total number of 46 human rights experts in Burundi.

Awareness of AU human rights instruments for redress of violations has deepened in 2016
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As evidence of the AU’s commitment to stand against human rights violations, the AU-backed Special Court in Senegal convicted Hissène Habré, a former head of state, of committing rape and sexual slavery and ordering killings during his rule in Chad from 1982 to 1990. The AU is also facilitating the establishment of a Hybrid Court for South Sudan to try war-crimes suspects in the country.

How can the AU fight impunity effectively? Some states have decided to withdraw from the International Criminal Court (ICC), and the Protocol creating an African Court of Justice and Human Rights now gives immunity to heads of state.

The vast majority of AU member states still understand the ICC, and rightly so, to be a court of last resort, and its option should be activated only after having exhausted efforts at the national, regional and continental levels. This is in the best interests of long-term peace, security and stability in AU member states.

While technically the ICC operates or ought to operate based on legal rules and principles, the AU member states continue to express concern over the role of geopolitics in the operations of the court. While some AU member states have had their nationals investigated by the ICC through referrals by the UN Security Council, similar crimes being perpetrated in other regions of the world have not reached the agenda of the UN Security Council for referral to the ICC. This perceived double standard is troubling and remains unacceptable to African states.

The immunity for heads of state remains debatable in legal terms. There is a long-standing tradition among many of the countries in the world to respect immunity for heads of state and this has acquired customary law status. While the Rome Statute Article 27 makes provision for irrelevance of official capacity, legal scholars have argued that article 98 of the Rome Statute is also recognition of customary international law on immunities for heads of state.

AU member states understand the ICC to be a court of last resort
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Many AU member states provide for immunity for the head of state in national laws and have host country agreements with other states recognising immunity for heads of state in their territories. Such agreements are treaties on an equal footing with the Rome Statute and the latter is, legally, not a superior international law instrument. As long as this legal lacuna remains, the AU should not be demonised for taking a stand that is, arguably, informed by sound interpretation of international law and in the best interest of strengthening national and regional mechanisms as well. Lastly, [regarding the African Court of Justice and Human Rights], the Malabo Protocol introduces other positive and far-reaching amendments such as an expansive jurisdiction for the court that will include trying piracy, terrorism, corruption, money laundering, and trafficking in drugs and persons, alongside crimes against humanity, genocide and war crimes.

The penchant to only focus on the amendment providing for immunity for heads of state as opposed to a balanced assessment of the entire statute betrays an obvious bias. This is where we hope civil society can help call attention to the ratification and declaration of the Court Protocol.

Five years after its inception, what assessment do you make of the African Governance Architecture (AGA)?

My term at the AUC coincided with the adoption of the AGA. Our major task was to make the AGA a household name on the continent. Since its inception, the architecture has made tremendous progress in its policy and institutional development towards increased coordination, collaboration and synergy on democratic governance issues.

There is now greater awareness, understanding and buy-in of the ideals of the AGA and its platform by the AU and its policy organs.

What advice would you give to your successor?

Continue to be assertive about the broad mandate of the DPA [Department of Political Affairs], build bridges and break the silos. Work closely with other departments of the Commission. Work closely with the RECs [regional economic communities] and all organs, and continue to advocate for resources at the DPA. The current level of resources is not adequate given the broad mandate. Resource mobilisation is key, [as is] financing. We can say a lot, but we cannot achieve [our goals] without money. Work closely with partners on mutual respect by prioritising the agenda of the AU.

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