Preventing coups in Africa: attempts at the protection of human rights and constitutions

Abstract

There are currently a number of legal mechanisms within African regional organisations aimed at deterring military coups and unconstitutional changes of government. Constitutional uncertainties within post-colonial legal systems and the growth of regional security initiatives led to the creation of these mechanisms, and as recent practice shows they are playing an increasingly important role in the protection of human rights. Using contemporary case studies this paper assesses how these mechanisms evolved and explores the legal impact that they are having.

Keywords:

• rule of law
• African Union (AU)
• human rights
• military government

Notes

For a discussion of the OAU and human rights see GW Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African Human Rights System (Transnational Publishers, University of Michigan, 2003).

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Victor T. Le Vine ‘The Fall and Rise of Constitutionalism in West Africa’, The Journal of Modern African Studies 35, no.2 (1997), 181–206.

Makau Mutua, ‘Breaking the Barriers: Radical Constitutionalism in the New African Century’, in J. Oloka-Onyano Constitutionalism in Africa: Creating Opportunities, Facing Challenges (Kampala, Fountain Publishers, 2001).

Yashpal Ghai ‘Ethnicity and Autonomy: A Framework for Analysis’ in “Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States” Yashpal Ghai (ed) (Cambridge: Cambridge University Press, 2000).

See E.J. Kellee and D Rothchild (eds), Afro-Marxist Regimes: Ideology and Public Policy, (Boulder, CO: Lynne Reiner 1987).

For an outline of the arguments surrounding Marxism and constitutionalism see Mahmud Mamdani, ‘The Social Basis of Constitutionalism in Africa’, The Journal of Modern African Studies 28, no.3 (1990), 359–374.

For an example see Danwood Chirwa, ‘A full loaf is better than half: the constitutional protection of economic, social and cultural rights in Malawi’, Journal of African Law 49, no. 2 (2005), 207–241.

A number of arguments were made in connection with growth of one-party states during the 1960s to the effect that African societies were unsuited to the formation of mass participatory democracy. For example see Arnold Zolberg, Creating Political Order: The Party States of West Africa (Rand McNally & Company: Chicago, 1966).

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In some cases such elections have been unfair or rigged (Equatorial Guinea, The Gambia) in others there has been some attempt at allowing a multiparty framework (Uganda).

See Lisa Blaydes, ‘Who votes in Authoritarian Elections and why? Determinates of voter turnout in contemporary Egypt’, presented at the 2006 Annual Meeting of the American Political Science Association, 31 August–3 September 2006, Philadelphia, PA.

This phenomenon was observed by a number of different authors, for example see: Claude Welch, ‘Military Disengagement from Politics Lessons from West Africa’, Armed Forces & Society 9, no. 4 (1983): 541–554; and Eboe Hutchful, ‘Demilitarising the Political Process in Africa: Some Basic Issues’, African Security Review 6, no. 3 (1997) at www.iss.co.za/pubs/ASR/6No2/Contents.html (accessed on 21 March 2011).

William Gutteridge, ‘Undoing Military Coups in Africa’ Third World Quarterly 7, no.1 (1985), 78–89.

Ruth First, Narcissus in Uniform: The Military Coup d'état in African Politics (London: Penguin Books, 1973).

For a theoretical overview see Robert Luckham, ‘The Military, Militarisation and Democratization in Africa: A Survey of Literature and Issues’, African Studies Review, 37, no. 2 (1994): 13–75.

Gutteridge, Military Coups, 14.

For a survey of some of the literature on this see Patrick J. McGowan ‘African Military coups d'états 1956–2001: frequency trends and distribution’, Journal of Modern African Studies 41, no. 3 (2003), 339–370; and Michael Bratton and Nicholas Van Der Whal, ‘Neopatrimonial Regimes and Political Transition in Africa’, World Politics 46, no. 4 (1994), 453–489.

For an example of these concerns see Saak, Dore, ‘Constitutionalism and the Post – Colonial State in Africa: Rawlsian Approach’, Saint Louis University Law Journal 41, 1301 (1996–1997).

Hans Kelsen postulated that revolutions created a ‘new legal order’ although this has been heavily criticized as resting on a false juristic notion of the state and conflating efficacy and validity. See Tayyab Mahmud, ‘Kelsen, Constitutions, Coup d'états and Courts’ (paper presented at International Association of Law Schools Conference on Constitutional Law, Georgetown University Law Centre, Washington, DC, 11–12 September 2009).

John Hatchard and Tunde I Ogowewo, Tackling the Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth (Commonwealth Secretariat Publications, London, 2003).

To see how this operated in a Nigerian context see AO Obilade, ‘Revolutionary regimes and the pre-existing law in Nigeria’ Nigerian Bar Journal, 20 (1985), 54–61.

Giorgio Agamben, State of Exception (University of Chicago Press, Chicago Illinois, 2005).

Stephen Humphries, ‘Legalizing Lawlessness: on Giorgio Agamben's State of Exception’ European Journal of International Law 17, no. 3 (2006), 677–687, at 680.

Scott Dolezal, ‘The systematic failure to interpret Article IV of the International Covenant on Civil and Political Rights: is there a Public Emergency in Nigeria’, American University International Law Review, 15 (2000), 1163–1209.

Charles Manga Fombad ‘The African Union, Democracy and Good Governance’, in Henning and Melber (eds), ‘AU, NEPAD and the APRM: Democratisation Efforts Explored’ Current African Issues, no. 32 (2006): 9–38.

For the latest research see, Africa Research Institute Briefing Note, ‘No Mr President: mediation and Military intervention in the African Union’, Briefing Note 1002, May 2010.

The Algiers summit in 1999 is where many of these changes came to a head. See Declarations and Decisions Adopted by the Thirty Fifth Assembly of Heads of State and Government” ANG/Decl. 1–2 (XXXV), AHG/Dec. 132–142 (XXXV).

For an explanation see Frans Viljoen, International Human Rights Law in Africa (Oxford University Press, 2007), chapter 4.

‘Declaration on the Framework for an OAU response to unconstitutional changes of Government’, AHG/Decl.5 (XXXVI) 2000.

Ibid., paras. (i)–(iv)

Issaka K Souare, ‘The AU and the Challenges of unconstitutional changes of government in Africa’, Institute for Security Studies Paper 197, August 2009.

Article 30 of the 2000 Constitutive Act of the African Union.

Ibid., Article 4(m) and (p).

Ibid., Article 4 (h).

See Jeremy Sarkin, ‘The Role of the United Nations, The African Union, and Africa's Sub-Regional Organizations in Dealing with Africa's Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect’, Journal of African Law 43, no. 1 (2009), 1–33.

See Article 4 of the Constitutive Act entitled ‘Principles’.

Kofi Oteng Kufuor, ‘The OAU and the Recognition of Governments in Africa: Analyzing its Practices and proposals for the future’, Amherst University International Law Review 369 (2002): 369–401.

‘Declaration by Civil Society Promoting the Ratification of the African Charter on Democracy, Elections and Governance’, An African Democracy Institute, 23rd February 2010 http://africandemocracyforum.org/attachments/055_Final%20Declaration%20on%20African%20Charter.pdf (accessed 21 March 2011).

Articles 10, 14(2), 17, 21 of The 2007 African Charter on Democracy, Elections and Governance.

Solomon T. Ebobrah ‘Litigating human rights before sub-regional courts in Africa: prospects and challenges’, African Journal of International and Comparative Law 17, no.1: (2009), 79–101.

William M. Reisman, ‘Sovereignty and Human Rights in Contemporary International Law,’ in , G. H. Fox and B. R. Roth (eds), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000), 256.

Human Rights Watch ‘Guinea: September 28 Massacre was premeditated’, Human Rights Watch Press Release, 27 October 2009.

Communications 147/95 and 149/95, Sir Derek K. Jawara v The Gambia 13th Annual Activity report of the African Commission of Human and Peoples Rights, AHG/222 (XXXVI) Annexs 1-V & Adendum 95.

Mulikita Njungma M. ‘A False Dawn? Africa's Post-1990 Democratizations Waves’, African Security Review 12, no.4 (2003), 105–116.

For examples of this see Oloka-Onyano Constitutionalism in Africa 3.

B. Roth ‘Governmental Illegitimacy in International Law’ (Oxford University Press, Oxford, 2001), chapter 9.

Charles Sampford and Margaret Palmer ‘The Theory of Collective Response’, in Morton Halperin and Mirna Galic (eds), Promoting Democracy: International Responses (Lexington Books, Maryland, 2005), 23–65.

Diamond observed the gradual collapse of freedom of speech along with other rights in military regimes: Larry Diamond, ‘Is the third wave over’, Journal of Democracy, 7 (1996): 20–37.

As Zillman argues in a US context, this is often an underdeveloped area of scholarship, and military exceptionalism is frequently taken as a given by legal scholars. Donald N. Zillman, ‘Free Speech and Military Command’, Utah Law Review, 243 (1977), 423–457.

This process is a key part of the ‘rent seeking’ necessary to keep military regimes in control. See Mwangi S Kemenyi and John Mukum, ‘Rents, military elites and political democracy’, European Journal of Political Economy 11, no. 4 (1996), 699–708.

See Gunilla Faringer, Press freedom in Africa (Greenwood Publishing Group, New York, 1991).

Grand Baie (Mauritius) Declaration and Plan of Action, April 1999, para. 8.

Regina v Ndhlovu, 4 South African Law Review 515, 522 (Rhodesian App. Div. 1968).

Luther v Borden, 48 US 1, 39 (1849).

See Madzimbamuto v Lardner – Burke 2, South African Law Review 284, 410 (1968) where it was held that it was better to recognise Rhodesia's 1965 Unilateral Declaration of Independence as founding a legitimate regime rather than risk instability.

Ambrose Ekpu ‘Judicial response to Coup D'Etat: A reply to Tayyab Mahmud (from a Nigerian Perspective)’, Arizona Journal of International & Comparative Law 13, 1 (1996): 2–31.

Lakanmi v AG (Western State) (1972) 1 Uni. Ife Law Review 201.

Communications 137/94, 139/94, 154/96 and 161/97, International PEN and others (on behalf of Saro- Wiwa) v Nigeria, Twelfth Activity Report 1998–1999, Annex V.

‘Decision on the Resurgence of the Scourge of Coups D'etat in Africa’, Assembly/AU/Dec.220(XII).

Neldjingaye Kameldy, ‘An analysis of the military coup Mauritania and its implications for democratic governance’, Open Society Institute, African Governance Monitoring & Advocacy Project, AfriMap, October 2008.

UN Security Council Statement by the President of the Security Council 19 August 2008 S/PRST/2008/30.

Ebrima Sillah, ‘Mauritania: Election results challenged’, IPS News Sevice from AllAfrica.com, 21 July 2009 http://allafrica.com/stories/200907220006.html (accessed 21 March 2011).

UN secretary general statement 24 July SG/SM/12382, AFR/1875.

Fourteenth Ordinary Session of the Assembly of the African Union 31 January–2 February 2009, Addis Ababa Ethiopia, Assembly/ AU/ Dec. 268- 288 (XIV) para. 24.

Art. 36 and 136 of the 1999 Constitution of Niger.

‘Upholding Niger's Constitution’, published on 5 March 2010 by www.globalization101.org/news1/Niger_Coup (accessed 21 March 2011).

For details see The Abuja Declaration of the 1 August 2009 from the Regional Symposium on Political Governance and Transitions in West Africa: The Case of Niger, at www.africandemocracyforum.org/attachments/043_Abuja%20Declaration.pdf (accessed 21 March 2010).

ECOWAS Protocol on Good Governance and Democracy, ECOWAS A/SP1/12/01.

The Monitor ‘ECOWAS suspends Niger for Defying Election Ban’, All Africa 22 October 2009 http://allafrica.com/stories/200910220193.html (accessed on 21 March 2011).

Afrique Avenir, ‘ECOWAS re-instates Niger as observer member’, Afrique Avenir, DS/of/fss/daj/APA. 4 July 2010 accessed at www.afriqueavenir.org/en/2010/07/04/ecowas-re-instates-niger-as-observer-member/ (accessed 22 March 2011).

Lauren Ploch ‘Madagascar's 2009 Constitutional Crisis’, CRS Report for the US Congress, R40448, 7 October 2009.

IPS News, ‘Rajoelina Assumes Power’, IPS News, 19 March 2009, http://ipsnws.net/news.asp?idnews=46200e.

Associated Press, ‘Top Court Endorses Army-Supported Opposition Leader to Replace Toppled President’, Associated Press, 18 March 2009.

Communiqué of the 181st meeting of the AU Peace and Security Council, published in a letter dated 20 March 2009 to the President of Security Council. UN Doc S/2009166.

Communiqué of the Extraordinary Summit of SADC Heads of State and Government, 30 March 2009.

Ibid., para 21.

Article 5 (b) and (2) of the 1992 Treaty of the Southern African Development Community.

Pretoria Communiqué on the Madagascar Mediation Initiative, 30 April 2010, http://www.sadc.int/.

Reuters, ‘AU keeps Madagascar suspension despite new deal’, Reuters News, Saturday 7 November 2009.

C. Schimizzi, ‘Madagascar voters approve new constitution’. Jurist, 22 November 2010 http://jurist.org/paperchase/2010/11/madagascar-voters-approve-new-constitution.php.

The Botswana Gazette, ‘SADC heads do not recognize Madagascar referendum’, The Botswana Gazette, 24 November 2010 see http://www.gazettebw.com/index.php?option=com_content&view=article&id=8097:sadc-heads-do-not-recognize-madagascar-referendum-&catid=18:headlines&Itemid=2 (accessed 21 February 2011).

Controller of Taxes v Valabhaji, Civil Appeal, 11/1981 Court of Appeal, Seychelles unreported, 11 August 1981.

See Uganda v Commissioner of Prisons, Ex parte Matavu [1966] EA 514.

For a previous example of this process in Lesotho see Makatso v King Moshaeshae II [1989] LRC (Const.) 24.

After the Court of Appeal's Decision in Qarase v Bainimarama [2009] FJCA 9 went against the government the military government embarked on a wide scale restriction of civil liberties.

Tayyab Mahmud, ‘Jurisprudence of Successful Treason: Coup D'Etat & Common Law’, Cornell International Law Journal 27 (1994), 49–140.

Roth, ‘Governmental Illegitimacy’, 46.

Martin Ziguélé, ‘Politics and Security in the Central African Republic’, Chatham House Lecture, 6 March 2006.

Michael Bratton, ‘Second Elections in Africa’, Journal of Democracy 9, No. 3 (1998): 51–66.

Ibid.

The situation in Guinea – Bissau illustrates this. See UN Security Council, Report of the Secretary- general on development in Guinea- Bissau and on the activities of the United Nations Peace building support in that country 29 September 2008 UN Doc S/2008/628.

Diadie Ba ‘Senegal opposes sanctions on Mauritania over coup’ Reuters 22 October 2008 http://in.reuters.com/article/2008/10/22/senegal-mauritania-idINLM22263420081022 (accessed 22 February 2011).

ECOWAS Communiqué ‘Final Communiqué on the Extraordinary Session of the Authority of Heads of State and Government on Cote d' Ivoire’ No. 188/2010, 7 December 2010 Abuja.

Kufuor The OAU and the Recognition of Governments 24.

These theoretical ideas are discussed in Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge, New York, 2007).

See A. Ojo ‘The search for a Grundnorm in Nigeria: the Lakanmi Case’, International and Comparative Law Quarterly 20, no. 1 (1971), 117–136.