Power-sharing, post-electoral contestations and the dismemberment of the right to democracy in Africa

Abstract

While Africa has made recent significant democratic gains, the problem of rigged elections tends to persist. Elections in Africa mostly tend to lack transparency and are often skewed in favour of the incumbent. Recent events on the continent have shown the tendency of incumbents to manipulate electoral processes so as to remain in power. This often leads to violent backlash from those who believe that they have been robbed of electoral victory. In some instances, the violence has spiralled out of control, requiring regional intervention. The African Union (AU) tends to resolve these disputes by resorting to power-sharing. However, power-sharing is inconsistent with the right to democracy which has emerged within the normative framework of the AU. This article argues that post-electoral power-sharing is at odds with the right to democracy. Consequently, in the resolution of post-electoral disputes, significant consideration should be given to the right to democracy and the power-sharing option should receive a minimalist consideration. More importantly, the AU should support institutional reforms and strive for more credible and transparent elections. Power-sharing should be a solution of last resort and should be crafted in such a way that it does not form an incentive for rogue leaders who, having lost elections, might tend to exploit the situation so as to force a power-sharing settlement.

Keywords:

• power-sharing
• right to democracy
• African Union
• election
• Africa
• Kenya
• Zimbabwe
• unconstitutional changes of government

Notes

For a detailed analysis of the events leading up to the formation of power-sharing governments in Kenya and Zimbabwe, see Andreas Mehler, ‘Peace and Power Sharing in Africa: A Not so Obvious Relationship’, African Affairs 108, no. 432 (2009): 455.

Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands (Berkeley: University of California Press, 1968). This concept is also often referred to as consensus democracy, cooperatism or proportional democracy.

Stef Vandeginste, ‘The African Union, Constitutionalism and Power-Sharing’, (working paper/2011.05, Institute of Development and Policy, University of Antwerp), 16.

Ian S. Spears, ‘Understanding Inclusive Peace Agreements in Africa: The Problems of Power Sharing’, Third World Quarterly 21, no. 1 (2000): 107; Vandeginste, ‘The African Union, Constitutionalism and Power-Sharing’, 16.

See generally Tara Goetze, ‘Empowering Co-Management: Towards Power-Sharing and Indigenous Rights in Clayoquot Sound, BC’, Anthropologica 47 (2005): 247; Chandra Sriram, ‘Peace as Governance? Critical Challenges to Power-Sharing Peace Deals’ (policy paper no. 3, Centre on Human Rights in Conflict, June 2009), 3; Caroline Hartzell and Matthew Hoddie, ‘Institutionalizing Peace: Power Sharing and Post-Civil War Conflict Management’, American Journal of Political Science 47, no. 2 (2003): 319.

Ulrich Schneckener, ‘Making Power-Sharing Work: Lessons from Successes and Failures in Ethnic Conflict Regulation’, Journal of Peace Research 39, no. 2 (2002): 203.

Hartzell and Hoddie, ‘Institutionalizing Peace’, 319.

Ibid., 320.

The Zimbabwean power-sharing agreement has been labelled an, ‘elite deal negotiated between a few individuals, with no attempt to involve civil society’. See Mehler, ‘Peace and Power Sharing in Africa’, 471, quoting Patrick Craven of the Congress of South African Trade Unions (COSATU), http://www.irinnews.org/report.aspx?ReportId=80623 (accessed 29 December 2011).

Mehler, ‘Peace and Power Sharing in Africa’, 455; Denis Tull and Andreas Mehler, ‘The Hidden Costs of Power Sharing: Reproducing Insurgent Violence in Africa’, African Affairs 104, no. 416 (2005): 375.

Spears, ‘Understanding Inclusive Peace Agreements in Africa’, 106.

Examples include Angola, Somalia, Ethiopia, Rwanda and Sierra Leone.

Spears, ‘Understanding Inclusive Peace Agreements in Africa’, 107.

Mehler, ‘Peace and Power Sharing in Africa’, 462.

Ibid.; Michael Kargbo, British Foreign Policy and the Conflict in Sierra Leone (Bern: Lang, 2006), 320; Sriram, ‘Peace as Governance?’, 3. Power-sharing hardly creates peace as was seen with the Lome peace deal in Sierra Leone, where the rebel Revolutionary United Front (RUF) returned to violence even after been given control over diamonds and its leader Foday Sankoh was appointed Vice President and Minister of Mineral Resources.

Roland Rich, ‘Bringing Democracy into International Law’, Journal of Democracy 12, no. 3 (2001): 21.

Ibid.

James Crawford, Democracy in International Law (Cambridge: Cambridge University Press, 1994), 4.

Nsongurua Udombana, ‘Articulating the Right to Democratic Governance in Africa’, Michigan Journal of International Law 24 (2003): 1229; David Held provides an account of democracy from classical Greece to the present. See David Held, Models of Democracy (Malden, MA: Polity Press, 2006).

Part I, paragraph 8, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993.

Steven Wheatley, Democracy, Minorities and International Law (Cambridge: Cambridge University Press, 2005), 128.

Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1976.

Thus Franck writes about the democratic entitlement of citizens. He argues that the democratic entitlement occurred in three normative phases, i.e., the right to self-determination, free expression and entitlement to participatory electoral processes: Thomas M. Franck, ‘The Emerging Right To Democratic Governance’, American Journal of International Law 86, no. 1 (1992): 90; Udombana, ‘Articulating the Right to Democratic Governance in Africa’, 1233. Building on Franck's theses, Udombana argues that democracy has or ought to acquire a degree of legitimacy in Africa. He notes that the right to democracy is a species of the right to self-determination and that democratic elections are the basis of the authority of any representative government: Rich, ‘Bringing Democracy into International Law’, 24.

Article 20(1) African Charter on Human and Peoples' Rights.

Article 20(2) African Charter on Human and Peoples' Rights.

Simon Waldehaimanot, ‘African Law of Coups and the Situation in Eritrea: A Test for the African Union's Commitment to Democracy’, Journal of African Law 54, no. 2 (2010): 245.

Communication No. 102/93; see also Dawda Jawara v. The Gambia, Communication Nos 147/95 and 149/96.

10 December 1948, General Assembly Resolution 217 A (III). While the UDHR is not of the status of a binding convention, its norms are generally regarded to have attained the status of customary international law. See E.M.J. Kone, ‘The Right to Self-Determination in the Angolan Enclave of Cabinda’ (paper presented at the Sixth Annual African Studies Consortium Workshop, Pennsylvania, USA, October 2, 1998), http://www.africa.upenn.edu/Workshop/kone98.html (accessed March 26, 2011); Waldehaimanot, ‘African Law of Coups and the Situation in Eritrea’, 246.

Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, 999 UNTS 171.

Rich, ‘Bringing Democracy into International Law’, 23.

Adopted on 11 July 2000 by the Thirty-Sixth Ordinary Session of the Assembly of Heads of State and Government.

Article 4(h) Constitutive Act.

Article 4(j) Constitutive Act.

Article 4(m) Constitutive Act.

Article 4(o) Constitutive Act.

Article 3(g) Constitutive Act.

Article 4(p) Constitutive Act.

Article 30 Constitutive Act. This principle has its origin in the AU Declaration on the Framework for an OAU Response to Unconstitutional Change of Government, OAU Doc. AHG/Decl. 5 (XXXVI), 12 July 2000.

Adopted by the Eighth Ordinary Session of the Assembly, held in Addis Ababa Ethiopia, 30 January 2007. For a commentary on this charter, see Solomon T. Ebobrah, ‘Is Democracy Now an Issue in Africa? An Evaluation of the African Charter on Democracy, Elections and Governance’, Malawi Law Journal 1, no. 2 (2007): 131.

Article 4(2) African Charter on Democracy, Elections and Governance.

Ibid.

Article 4(1) African Charter on Democracy, Elections and Governance.

Article 10 African Charter on Democracy, Elections and Governance.

Article 17 African Charter on Democracy, Elections and Governance.

See Waldehaimanot, ‘African Law of Coups and the Situation in Eritrea’, 244; Jeremy I. Levitt, ‘Pro-Democracy Intervention in Africa’, Wisconsin International Law Journal 24 (2006): 785; Karsten Nowrot and Emily Schabacker, ‘The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone’, American University International Law Review 14 (1998): 321; Nsongurua Udombana, ‘Can the Leopard Change its Spots? The African Union Treaty and Human Rights’, American University International Law Review 17 (2002): 1264.

See Corinne Packer and Donald Rukare, ‘The New African Union and its Constitutive Act’, American Journal of International Law 96, no. 2 (2002): 374.

See Protocol Relating to the Establishment of the Peace and Security Council of the African Union, Adopted by the 1st Ordinary Session of the Assembly of the African Union, Durban, 9 July 2002. The Peace and Security Council is tasked with the promotion of peace, security and stability on the continent. Its functions include peace-making, including the use of good offices, mediation, conciliation and enquiry.

Article 25(6) African Charter on Democracy, Elections and Governance.

Article 25(4) of the charter provides that perpetrators of unconstitutional change of government should not be allowed to participate in elections held to restore democratic order or hold any position of responsibility in political institutions of their state. Also, article 25(5) of the charter makes provision for perpetrators of unconstitutional change to be tried before a court set up by the AU. Further, a recent draft Protocol to the Statute of the African Court of Justice and Human and Peoples' Rights, which seeks to grant criminal jurisdiction to the court, provides for the criminalisation of unconstitutional changes of governments.

Ndiva Kale, ‘Participatory Rights in Africa: A Brief Overview of an Emerging Regional Custom’, Netherlands International Law Review 55 (2008): 244.

See Irwin P. Stotzky, ‘Creating the Conditions for Democracy’, in Deliberative Democracy and Human Rights, eds. Harold Hongju Koh and Ronald C. Slye (New Haven, CT; London: Yale University Press, 1999) where the author gives a wide conceptualisation of democracy encompassing the political, social and economic orders.

John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 2003), 10.

Morris Mbondenyi, ‘Entrenching the Right to Participate in Government in Kenya's Constitutional Order: Some Viable Lessons from the African Charter on Human and Peoples’ Rights', Journal of African Law 55, no. 1 (2011): 33.

See ECOWAS Statement on the 24 November 2011 Presidential Election in the Gambia, 22 November 2011, No. 234/2011.

Article 4(2) African Charter on Democracy, Elections and Governance; principle 2.1.6 SADC Principles and Guidelines Governing Democratic Elections.

Article 17(1) African Charter on Democracy, Elections and Governance; principle II 4(e) AU Declaration on the Framework for an OAU Response to Unconstitutional Change of Government; principle 2.1.7 SADC Principles and Guidelines Governing Democratic Elections.

Article 3 Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 2001.

Principle III(c) AU Declaration on the Framework for an OAU Response to Unconstitutional Change of Government.

Article 17 African Charter on Democracy, Elections and Governance; principle 2.1.5 SADC Principles and Guidelines Governing Democratic Elections.

Article 2(2) Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 2001; principle II 4(d) AU Declaration on the Framework for an OAU Response to Unconstitutional Change of Government; principle 2.1.4 SADC Principles and Guidelines Governing Democratic Elections.

Article 5 Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 2001; principle 4.1.4 SADC Principles and Guidelines Governing Democratic Elections.

Article 4(1) Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 2001.

Article 6 Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 2001.

Principle 4.1.8 SADC Principles and Guidelines Governing Democratic Elections.

Principle III(i) AU Declaration on the Framework for an OAU Response to Unconstitutional Change of Government.

Article 9 Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, 2001; principle 2.1.9 SADC Principles and Guidelines Governing Democratic Elections.

It must be noted, however, that in Sierra Leone, the government of Ahmed Tejan-Kabbah was restored by military intervention sanctioned by ECOWAS, basically comprising Nigerian military forces.

Richard Traill, ‘Is Power-Sharing the Answer in Kenya?’, Fortnight 457 (2008): 6.

Franck, ‘The Emerging Right To Democratic Governance’, 47; See also Udombana, ‘Articulating the Right to Democratic Governance in Africa’, 1245; Samuel Barnes, ‘The Contribution of Democracy to Rebuilding Post Conflict Societies’, American Journal of International Law 95 (2001): 86–7.

Franck, ‘The Emerging Right To Democratic Governance’, 47.

Jeremy Waldron, ‘Participation: The Right of Rights’, Proceedings of the Aristotelian Society, News Series 98 (1998): 321; Robert Post, ‘Democracy and Equality’, Annals of the American Academy of Political and Social Science 603 (2006): 27.

Waldron, ‘Participation: The Right of Rights’, 308.

Ibid.; Karim Abdul-Matin, ‘Is there A Right to Democracy’ (PhD diss., Massachusetts Institute of Technology, 2006), 43.

Udombana, ‘Articulating the Right to Democratic Governance in Africa’, 1212.

Waldron, ‘Participation: The Right of Rights’, 309.

Ibid.

Referenda, commissions of enquiry and national consultations might be said to represent other methods of accountability. However, power-sharing does not or cannot cater for these machineries.

Traill, ‘Is Power-Sharing the Answer in Kenya?’, 6.

Udombana, ‘Articulating the Right to Democratic Governance in Africa’, 1212; Reginald Ezetah, ‘The Right to Democracy: A Qualitative Inquiry’, Brooklyn Journal of International Law 22 (1996–1997): 495.

UN Doc. A/46/L.8/Rev.1 (1991); Support to the Democratic Government of Haiti, OEA/Ser.F/V.1/MRE/RES.1/91, corr.1, paras 5–6 (1991). For further insight on the transformation of democracy from moral prescription to an international legal obligation by the OAS, as well as its practice in relation to undemocratic changes of government see Heraldo Munoz and Mary D'Leon, ‘The Right to Democracy in the Americas’, Journal of Interamerican Studies and World Affairs 40, no.1 (1998): 1; see also OAS Resolution on Democracy, AG/RES. 1080 (XXI-O/91).

Other countries that have been placed under AU sanctions for unconstitutional changes of government are Mauritania from August 2005 to April 2007 and August 2008 to May 2009, Guinea from December 2008 to December 2010, Niger from August 2009 to March 2011 and Madagascar from 2009 till the present. For a full discussion of sanctions imposed against these states, see Magliveras, ‘The Sanctioning System of the African Union: Part Success, Part Failure?’, http://aegean.academia.edu/KonstantinosMagliveras/Papers/1159844/THE_SANCTIONING_SYSTEM_OF_THE_AFRICAN_UNION_PART_SUCCESS_PART_FAILURE (accessed 9 March 2012); Eki Omorogbe, ‘A Club of Incumbents? The African Union and Coups d’État', Vanderbilt Journal of Transnational Law 44, no. 123 (2011): 137.

As Levitt notes, power-sharing permits the ‘crime of illegal peace’ by insurrectionists, elites and moral guarantors. See Jeremy Levitt, ‘Illegal Peace? Power Sharing with Warlords in Africa’, ASIL Proceedings 101 (2007): 152.

Principally Angola and South Africa.

It must be noted that the Protocol on Amendments to the Constitutive Act of the African Union, which is yet to come into force, proposes to amend article 4(h) to expand circumstances wherein the AU may intervene in member states, to include ‘a serious threat to legitimate order to restore peace and stability to the member state of the Union upon the recommendation of the Peace and Security Council’. There is no definition of what amounts to a ‘threat to legitimate order’. However, it may well be that the AU intends to empower itself to intervene in the event of the unlawful overthrow of governments. This being the case, the AU should similarly be able to intervene to remove incumbents in the event of unlawful retention of power.

AHG/Decl.1 (XXXVIII), 2002.

The period provided by the Lome Declaration for the restoration of constitutional order subsequent to an unconstitutional change of government.

To allow for possible logistical challenges.

Such as the tendency to create a prime ministerial office.