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ABSTRACT
Following Pierre Nkurunziza’s announcement in 2015 that he would run for a third term, Burundi was thrust into violence and instability as his eligibility was contested. This contribution argues that the regional and subregional responses to the crisis exposed the inadequacy of what the literature refers to as the African Governance Architecture (AGA). It asserts that although the normative component of the AGA is sound, the institutional component lacks the requisite ‘teeth’ to contribute meaningfully to the promotion of good governance on the continent. The article points to the characterisation of the AGA platform as a ‘free-space’ as evidence that the AGA is inferior to its individual organs and organisations. It argues that in assessing the AGA, there are two pertinent sets of questions, namely; what are Africa’s needs in light of its history, its present reality and its future aspirations?; secondly, what is the African Union’s promise to the continent vis-à-vis democracy and good governance as captured in the AU Constitutive Act?
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Dr Swikani Ncube is a senior lecturer in the Faculty of Law at the University of Johannesburg. Before Joining the University of Johannesburg he lectured at the Midlands State University’s faculty of law in Zimbabwe. His research interests include peace and security, involuntary migration, the responsibility to protect, constitutionalism and governance and terrorism.
Notes
1 See generally Lindberg SI, ‘The Surprising Significance of African Elections’, Journal of Democracy, 17, 1, 2006, pp. 139–51. See also de Villiers S, ‘An Overview of Conflict in Africa in 2014’, African Security Review, 24, 1, 2015, pp. 89–100.
2 The Prosecutor v. Uhuru Muigai Kenyatta. Formerly The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali ICC-01/09-02/11. The charges against Kenyatta were subsequently dropped.
3 See for example, ‘After Mugabe, all Eyes are on Museveni: How Long can he Cling to Power?’ The Conversation, 2017, accessed 22 June 2018, <http://theconversation.com/after-mugabe-all-eyes-are-on-museveni-how-long-can-he-cling-to-power-87964>.
4 ‘Thousands Protest against Government in Togo’, News24, 2017, accessed 4 June 2018, <https://www.news24.com/Africa/News/thousands-protest-against-government-in-togo-20180204>.
5 Thornycroft P, ‘Zimbabwe's Five-Week Military Coup is Over’, Independent Online, 2017, accessed 18 December 2017, <https://www.iol.co.za/news/africa/zimbabwes-five-week-military-coup-is-over-12464204>.
6 ‘More Civilians Confirmed Dead in DRC Protests against Joseph Kabila’, Business Live, 2017, accessed 22 June 2018, <https://www.businesslive.co.za/bd/world/africa/2018-01-22-drc-blocks-internet-ahead-of-protest-march-in-kinshasa/>.
7 Fabricius P, ‘Will the Lesotho Army accept a Thabane Victory?’ Institute for Security Studies, 2017, accessed 30 June 2018, <https://issafrica.org/iss-today/will-the-lesotho-army-accept-a-thabane-victory>.
8 See generally Bouka Y & Wolters S, ‘The Battle for Burundi: Is there a Viable Solution’, Central Africa Report, Issue 7, July 2016.
9 Constitutive Act of the African Union, Adopted on 11 July 2000 in Lome, Togo and entered into force on 26 May 2001.
10 Ibid., art.3(g).
11 Adopted by the Eighth Ordinary Session of the Assembly, held in Addis Ababa, Ethiopia, 30 January 2007.
12 African Union Commission, ‘African Governance Architecture Framework Document’, accessed 30 June 2018, <http://aga-platform.org/sites/default/files/201707/AGA%20%20Frame%20work%20%20%20Online%20FINAL_0.pdf>. See also the AGA’s mandate at <http://aga-platform.org/about>.
13 Para. 9. It records the member States’ determination ‘to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law.
14 Promote peace, security, and stability on the continent.
15 Promote democratic principles and institutions, popular participation and good governance.
16 Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.
17 Makinda SM & Okumu WF, The African Union: Challenges of Globalisation, Security and Governance. New York: Routledge, 2008, p. 29.
18 See Report of the Secretary-General on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, UN Document A/52/871 -S/ 1998/31, (1998): at para 3. See also Feldman RL, ‘The Root Causes of Terrorism: Why Parts of Africa might never be at Peace’, Defense & Security Analysis, 25, 4, 2009, p. 364.
19 See The Decision of the 16th Ordinary Session of the Executive Council of the African Union EX.CL/Dec.525 [XVI], 2011.
20 AU Constitutive Act: preamble para.9.
21 Decision on the Report of Member States’ Experts Consultations on the Theme of the Sixteenth Ordinary AU Assembly, ‘Towards greater unity and integration through shared values’ – Doc. EX.CL/619 (XVIII).
22 Para.5(c). The Others are – to accelerate the ratification, domestication, implementation and monitoring of African Shared values instrument; to deepen synergy, coordination, cooperation and harmonisation of shared values instruments among AU organs, institutions and RECs on democracy, governance, human rights and humanitarian affairs; to Facilitate joint engagement and deepen synergy with the African Peace and Security Architecture (APSA) in strategic interventions; to enhance popular participation and citizen engagement in attainment of democracy, governance and respect for human and peoples’ rights; to coordinate evaluation and reporting on implementation and compliance with AU norms on governance and democracy as envisaged by article 44, 45 and 49 of the ACDEG; to foster dialogue and share comparable lessons on trends, challenges, opportunities and prospects for improving governance and democracy among Member States; and to generate, manage and disseminate knowledge on African shared values agenda, good governance and democracy in Africa.
23 Para.6.
24 The guiding principles are – effective participation of the African peoples in strengthening and consolidating democratic governance in Member States and continental affairs; respect for democratic principles, human rights, the rule of law and good governance; holding of regular, transparent, free and fair elections; promotion of the principle of separation of powers; promotion of gender equality and youth empowerment; promotion of transparency and fairness in the management of public affairs; condemnation and rejection of acts of corruption, related offenses and impunity; condemnation and rejection of unconstitutional changes of governments; strengthening political pluralism and recognising the role, rights and responsibilities of legally constituted political parties, including opposition political parties.
25 See African Union Commission, ‘African Governance Architecture Framework Document’, accessed 30 June 2018, <http://aga-platform.org/sites/default/files/201707/AGA%20%20Frame%20work%20%20%20Online%20FINAL_0.pdf>. See also the AGA’s mandate at <http://aga-platform.org/about>, para.7.
26 Ibid., at paras.8 and 9.
27 Ibid., at paras.8 and 9.
28 Ibid., at para.8.
29 Ibid., at para.11.
30 Allison S, ‘Think Again: Can Burundi Bury the Ghosts of its Troubled Past?’, Institute for Security Studies, 2017, accessed 17 June 2018, <https://issafrica.org/iss-today/think-again-can-burundi-bury-the-ghosts-of-its-troubled-past>.
31 Ibid.
32 The process was spearheaded by then Tanzanian President, Julius Nyerere and the regional Heads of States, the peace process took place in Arusha, Tanzania.
33 Falisse J, ‘Burundi: Reflecting on Ten Days of Unrest in Bujumbura’, African Arguments, 5 May 2015, accessed 28 June 2018, <http://africanarguments.org/2015/05/05/burundi-reflecting-on-ten-days-of-unrest-in-bujumbura-by-jean-benoit-falisse/>. See also, ‘Senior Burundi Judge Flees Rather than Approve President's Candidacy’, The Guardian, 5 May 2015, accessed 28 June 2018, <www.theguardian.com/world/2015/may/05/senior-burundi-judge-flees-rather-than-approve-presidents-candidacy>.
34 ‘Burundi President Nkurunziza Faces Attempted Coup’, BBC News, 13 May 2015, accessed 25 June 2018, <http://www.bbc.com/news/world-africa-32724083>.
35 12 soldiers who backed him were reportedly killed in a battle with security forces.
36 Moncrieff R, ‘Burundi: Three Lessons about Burundi's Crisis from Speaking to those who fled it’, African Arguments, 20 January 2017, <http://africanarguments.org/2017/01/20/three-lessons-about-burundis-crisis-from-speaking-to-those-who-fled-it/>.
37 United Nations Independent Investigation on Burundi (UNIIB), ‘Report of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council resolution S-24/1’, 2016: at para 42.
38 Ibid.
39 Moncrieff R, ‘Burundi: Three Lessons about Burundi's Crisis from Speaking to those who fled it’, African Arguments, 20 January 2017, <http://africanarguments.org/2017/01/20/three-lessons-about-burundis-crisis-from-speaking-to-those-who-fled-it/>.
40 See Amnesty International, ‘“My Children are Scared”: Burundi's Deepening Human Rights Crisis’, AFR 16/3116/2015, 22 December 2015, <https://www.amnesty.org/en/documents/afr16/3116/2015/en/>.
41 Moncrieff R, ‘Burundi: Three Lessons about Burundi's Crisis from Speaking to those who fled it’, African Arguments, 20 January 2017, <http://africanarguments.org/2017/01/20/three-lessons-about-burundis-crisis-from-speaking-to-those-who-fled-it/>.
42 Ibid.
43 United Nations Independent Investigation on Burundi (UNIIB), ‘Report of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council resolution S-24/1’, 2016, para 43.
44 Amnesty International, ‘Burundi: Suspected mass graves of victims of 11 December violence’, Index: AFR 16/3337/2016, 29 January 2016, <http://www.amnestyusa.org/research/reports/burundi-suspected-mass-graves-of-victims-of-11-december-violence>.
45 United Nations Refugee Agency, ‘UNHCR says more than 105,000 refugees have fled violence in Burundi’, 2017, accessed 25 June 2018, <http://www.unhcr.org/cgibin/texis/vtx/search?page=search&docid=5555f62a6&query=burundi>.
46 United Nations Independent Investigation on Burundi (UNIIB), ‘Report of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council resolution S-24/1’, 2016, at para.47.
47 Armed Conflict Location & Event Dataset (ACLED), ‘Country report: Burundi crisis year one’, May 2016.
48 See also Worldwide Movement for Human Rights (FIDH), ‘Burundi: A bloody first year of challenged presidency for Pierre Nkurunziza’, 2017, accessed 25 June 2018, <https://www.fidh.org/en/region/Africa/burundi/burundi-a-bloody-first-year-of-challenged-presidency-for-pierre>.
49 United Nations Independent Investigation on Burundi (UNIIB), ‘Report of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council resolution S-24/1’, 2016, at para.38.
50 Ibid., at para.40. See also Allison S, ‘Think Again: Can Burundi Bury the Ghosts of its Troubled Past?’, Institute for Security Studies, 17 January 2017, accessed 30 June 2018, <https://issafrica.org/iss-today/think-again-can-burundi-bury-the-ghosts-of-its-troubled-past>.
51 United Nations Independent Investigation on Burundi (UNIIB), ‘Report of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council resolution S-24/1’, 2016, at paras. 38 and 39.
52 Jobson E, ‘The AU Tried and Failed on Burundi. Now it's Time to try again’, African Arguments, 10 October 2016, accessed 30 June 2018, <http://africanarguments.org/2016/10/10/the-au-tried-and-failed-on-burundi-now-its-time-to-try-again/>.
53 Allison S, ‘Think Again: Can Burundi Bury the Ghosts of its Troubled Past?’, Institute for Security Studies, 2017, accessed 17 June 2018, <https://issafrica.org/iss-today/think-again-can-burundi-bury-the-ghosts-of-its-troubled-past>.
54 Human Rights Watch, ‘“We will beat you to correct you” abuses ahead of Burundi’s constitutional referendum’, 20 May 2018, accessed 30 June 2018, <https://www.reuters.com/article/us-burundi-politics/at-least-15-killed-during-burundi-referendum-campaign-rights-group-idUSKCN1IJ0V8>.
55 Ibid.
56 See Africanews ‘Burundi approves new constitution, Nkurunziza could stay till 2034’, 21 May 2018, accessed 30 June 2018, <https://www.africanews.com/2018/05/21/burundi-approves-new-constitution-nkurunziza-could-stay-till-2034/>.
57 See Elias Biryabarema, ‘Burundi’s president says will not seek re-election, easing unrest fears’, Reuters, 7 June 2018, accessed 30 June 2018, <https://af.reuters.com/article/topNews/idAFKCN1J31HD-OZATP>.
58 African Union Press release, ‘AU calls for restraint in Burundi’, accessed 20 February 2018, <http://au.int/en/sites/default/files/newsevents/pressreleases/25807-pr-pr_113_au_calls_for_restraint_in_burundi_-_26_april_2015.pdf>.
59 ‘The Rwanda People’s Party Statement on the situation in Burundi’, Great Lakes Voice, 5 May 2015, accessed 30 June 2018, <http://greatlakesvoice.com/the-rwanda-peoples-party-statement-on-the-situation-in-burundi/>.
60 AU Peace and Security Council, Communiqué of the 507th Meeting, PSC/PR/COMM (DVII) (14 May 2015), at para.13.
61 Joint Statement by the EAC-COMESA, ICGLR, AU and UN on the situation in Burundi, MENUB, 25 May 2015, <https://menub.unmissions.org/en/joint-statement-eac-comesa-icglr-au-and-un-situation-burundi-0>.
62 PSC/PR/COMM.2 (DXV) adopted at its 515th meeting held on 13 June 2015.
63 Communiqué of the 3rd Emergency Summit of the Heads of State of the EAC on the situation in Burundi, Dar es Salaam, 6 July (2015): at para.4.
64 PSC Communique of the 551st Meeting, PSC/PR/COMM.(DLI) 17 October (2015): ay para.12.
65 Ibid., at para.12(ii).
66 Ibid., at para.12(v).
67 Communique of the PSC’s 565th Meeting, PSC/PR/COMM.(DLXV) (17 December 2015): para.13(a)(i).
68 Ibid., at para.13(a)(ii).
69 ‘Burundi MPs debate proposed AU peacekeeping force’, Daily Nation, 22 December 2015, accessed 30 June 2018, <www.nation.co.ke/news/africa/Burundi-MPs-debate-invasion-force/-/1066/3005520/-/m64m8wz/-/index.html>.
70 Communique of the PSC’s 571st Meeting (29 January 2016): at para.11(a).
71 Ibid., at para.11(b).
72 Joint communiqué of the 17th Ordinary Summit of the East African Heads of State, Arusha, 2 March 2016, para. 24, accessed 30 June 2018, <www.eac.int/news-and-media/statements/20160302/joint-communique-17th-ordinary-summit-east-african-community-heads-state>.
73 See for example Makinda SM & Okumu FW, The African Union: Challenges of Globalization, Security and Governance, 2008, p. 29; Mwanasali M, ‘From Non-Interference to Non-Indifference: The Emerging Doctrine of Conflict Prevention in Africa’, in Akokpari J, Ndinga-Muvumba A, & Murithi T (eds), The African Union and its Institutions, 2008, pp. 41–58; Gomes S, ‘The Peacemaking Role of the OAU and the AU: A Comparative Analysis’, in Akokpari J, Ndinga-Muvumba A, & Murithi T (eds), The African Union and Its Institutions, 2008, p. 113; Abass A, Regional Organizations and the Development of Collective Security: Beyond Chapter VIII of the UN Charter, 2004.
74 AU Constitutive Act: art.5(2).
75 The APSA consists of the African Pecae and Security Council, The Continental Early Warning System, The Panel of the Wise, The African Standby Force and the Peace Fund. It was established following the adoption of the Protocol relating to the Establishment of the Peace and Security Council of the African Union, adopted at the 1st Ordinary Session of the Assembly of the African Union on the 9th of July 2002 in Durban South Africa.
76 African Union, ‘Framework of the African Governance Architecture (AGA)’, pp. 1, 6, <https://www.iag-agi.org/IMG/pdf/aga-framewor9183.pdf>.
77 Protocol relating to the Establishment of the Peace and Security Council of the African Union, adopted at the 1st Ordinary Session of the Assembly of the African Union on the 9th of July 2002 in Durban South Africa: art.2(1).
78 African Union Commission, ‘African Governance Architecture Framework Document’, accessed 30 June 2018, <http://aga-platform.org/sites/default/files/201707/AGA%20%20Frame%20work%20%20%20Online%20FINAL_0.pdf>. See also the AGA’s mandate at <http://aga-platform.org/about>, para 3.
79 Mutua M, ‘Book Review – Africa: Mapping New Boundaries in International Law. By Levitt JL Oxford, Portland OR: Hart Publishing, 2008’, American Journal of International Law, 104, 2010, p. 533. TWAIL is ‘an intellectual, ideological and political movement seeking to counter some domineering conceptual foundations and material assumptions underlining international law and its encounters with third world countries. It challenges what it perceives as “tyrannical” tendencies of international law’. See also Mutua M, ‘What is TWAIL?’, American Society of International Proceedings, 94, 2000, p. 31.
80 African Union, ‘The African Governance Architecture (AGA)’, para. 19, <https://www.iag-agi.org/IMG/pdf/aga-framewor9183.pdf>.
81 See Amnesty international ‘Amnesty International Report 2017/18: The state of the world’s human rights’ Amnesty International Report 2017/2018, p. 18; Freedom House ‘Press Freedom’s dark horizon: Freedom of the press 2017’, 17 April 2017, p. 4.
82 African Union Commission, ‘Agenda 2063 framework document: The Africa we want’, 2015, p. 12. African Union Commission, ‘African Governance Architecture Framework Document’, accessed 30 June 2018, <http://aga-platform.org/sites/default/files/201707/AGA%20%20Frame%20work%20%20%20Online%20FINAL_0.pdf>. See also the AGA’s mandate at <http://aga-platform.org/about>.
83 Ibid., p. 12.
84 Since its inception, the Council has held over 750 meetings and has been in the forefront of peace and security activities on the continent.
85 South Sudan has been ravaged by conflict since its formal establishment in 2011 when it gained independence from Sudan through a referendum.
86 African Union Press Release, ‘AU peace and security council concludes a five-day field mission to the Republic of South Sudan’, April 2018.
87 Although its decisions have to be approved by the AU Assembly before they are implemented.
88 Institute for Security Studies, ‘The East African Community Tackles the Burundi Crisis’, Central African Report, Issue 8, August 2016, p. 9.
89 African Union Commission, ‘African Governance Architecture Framework Document’, accessed 30 June 2018, <http://aga-platform.org/sites/default/files/201707/AGA%20%20Frame%20work%20%20%20Online%20FINAL_0.pdf>. See also the AGA’s mandate at <http://aga-platform.org/about>, para. 5(g).
90 The EAC’s founding members are Uganda, Tanzania and Kenya. Rwanda and Burundi became members in 2007, while South Sudan joined in 2016 following its secession from Sudan.
91 Institute for Security Studies, ‘The East African Community Tackles the Burundi Crisis’, Central African Report, Issue 8, August 2016, p. 3.
92 Various legal Instruments and Frameworks of the AU acknowledge the primacy of peace and good governance for the attainment of economic development. These include, the Memorandum of Understanding on the African Peer Review Mechanism (APRM); the Conference on Stability, Security, Development and Democracy (CSSDCA) Memorandum of Understanding; the Protocol Relating to the Establishment of the Peace and Security Council of the African Union; The African Union Convention on Preventing and Combating Corruption; the OAU/AU Declaration on Principles Governing Democratic Elections; and The New Partnership for Africa’s Development (NEPAD) Declaration on Democracy, Political, Economic & Corporate Governance.
93 See African Union Commission, ‘Agenda 2063 framework document: The Africa we want’, 2015.
94 Ibid., p. 1.
95 Ibid., p. 12.
96 Ibid., p. 68.
98 See generally George Wachira M, ‘Consolidating the African Governance Architecture’, SAIIA Policy Briefing 96, 2014. He states that, ‘collaboration and co-ordination among African Union (AU) and Regional Economic Community (REC) organs and institutions with the mandate to strengthen governance, human rights and democracy have been ad hoc and unpredictable’.
99 2nd Annual High Level Dialogue on Governance and Democracy in Africa: Trends, Challenges and Prospects. Dakar, Senegal, 25–27 November 2013, para.8.
100 African Union Commission, ‘Framework of the African Governance Architecture (AGA)’, accessed 30 June 2018, p. 2, <https://www.iag-agi.org/IMG/pdf/aga-framewor9183.pdf>.