The ACDEG was adopted on 30 January 2007 and entered into force on 15 February 2012.Footnote 1 Its adoption was premised on the realization that conflicts on the continent were caused or exacerbated by many factors, notably including lack of democratic practices in the management of public affairs, non-observance of human rights, as well as unfair electoral processes.Footnote 2 The charter was seen as a bulwark to ensuring free, fair and credible elections, the building of democratic institutions and the rule of law, as well as deepening democratic ideals and values on the continent.Footnote 3
The ACDEG is anchored in the Constitutive Act of the African Union (AU Constitutive Act), which commits African Union (AU) member states to participatory democracy, constitutionalism, rule of law, human rights, peace and security, good governance as well as sustainable human development in Africa.Footnote 4 As of February 2019, the ACDEG had been signed by 46 member states and ratified and acceded to by 31, being 12 of the 15 member states in western Africa, six of the ten in southern Africa, eight of the 13 in eastern Africa, two of the nine in central Africa and three of the seven in northern Africa. It has been a slow process, which is not unusual for AU treaties.Footnote 5
Unique attributes of the ACDEG
The ACDEG is regarded as a ground-breaking instrument in terms of the commitments member states have undertaken relating to good governance, participatory democracy, and principles and guidelines for the organization and management of public affairs in Africa, in particular the periodicity of credible and transparent elections managed by independent electoral bodies.Footnote 6
The ACDEG reflects the shared values, standards and norms of the AU and its member states in the area of democracy and, together with the AU Constitutive Act, envisages that states will hold each other accountable to ensure compliance through the application of the sanctions provided for in article 23 of the AU Constitutive Act against states that fail to comply with the AU's principles and policies.Footnote 7
The ACDEG was preceded by 18 instruments and frameworks, including the New Partnership for Africa's Development (NEPAD) and African Peer Review Mechanism. It incorporates these and other previous soft law instruments on democracy and governanceFootnote 8 into a single and consistent legally binding document. Another seven legal instruments were adopted after the ACDEG, making a total of 25 AU instruments dealing with democracy and human rights. The charter is therefore largely a consolidation of commitments member states have already made, in various instruments, many of which are already being implemented.
The question that arises is whether the ACDEG is merely repetitive. A close review of its provisions leads one to conclude that it is not simply a duplication of previous similar instruments, but rather a unique instrument with commendable features that have great potential to promote and strengthen democracy, good governance and the rule of law in Africa.
Compared to other Organisation of African Unity (OAU) and AU instruments, the ACDEG is unique in at least six ways. First, the ACDEG is the first AU instrument that involves all the AU mechanisms in its implementation.Footnote 9 Secondly, it has its own provisions regarding sanctions that complement the AU sanctions regime found in other instruments and could strengthen compliance with the AU's norms and values and promote accountability. In this regard, a breach of the ACDEG could invite sanctions in terms of article 46 of the charter itself,Footnote 10 and articles 23(2) and 30Footnote 11 of the AU Constitutive Act. Thirdly, article 8(2) of the ACDEG obligates state parties to “adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups”.Footnote 12 This is the first AU instrument that seeks to address the challenges faced by “ethnic minorities, migrants, marginalized and vulnerable social groups”. Fourthly, the charter is the most significant instrument on elections, in that it has 16 provisions relating to elections. Fifthly, uniquely, it is the only AU instrument that gives a legal basis, in its article 37, to the concepts of sustainable development and human security through the NEPAD objectives and the UN Millennium Development Goals.Footnote 13 Sixthly, in terms of article 25(5) of the charter, “perpetrators of unconstitutional change of government may also be tried before the competent court of the Union”, hence the insertion of this crime in the “International Crimes Protocol” for the ACtHPR, adopted in Malabo, Equatorial Guinea, on 27 June 2014.Footnote 14 These provisions were included in response to the governance deficit on the continent and the challenge of the non-implementation of legal instruments by member states, by recommitting states in clearer language to deal with these issues in an instrument that has a sanctions regime and is justiciable.
Overall, the ACDEG provides a framework of norms and principles, the strict observance of which would significantly reduce the risk of unconstitutional changes of governments, popular uprisings and conflicts arising from competition for political power on the continent.
Key issues and reservations in the ACDEG negotiation process
In the process of negotiating the ACDEG, a number of key issues and reservations were raised by member states with regard to certain aspects of the draft charter, particularly those that states felt directly affected state sovereignty.Footnote 16 Some member states were concerned about the concept of “democratic change of governments” contained in article 2(3), as it stood, which referred to promoting “the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments” as read together with article 10(2).Footnote 17 They felt that a regular change of government does not necessarily translate into democracy. Other states also expressed concerns about “political pluralism” in draft article 2(6),Footnote 18 arguing that there was no evidence that democracy could only be assured through political pluralism. Questions were also raised about the meaning of “access to information, freedom of the press and accountability in the management of public affairs” in article 2(10).Footnote 19
With regard to the issue of representative and democratically elected governments in article 3(4) (which as it stood stipulated the principle of organizing “regular, free and fair elections as the means for legitimate authority for a representative government”),Footnote 20 the report of the meeting indicates that some delegations argued that “the representative nature of a government stemmed from democratic governance practices and therefore the concept of representative government should not be maintained in the text”.Footnote 21 Other delegations underscored “the need for any government, whether elected democratically or not, to incorporate peculiarities of national realities in order to be as representative as possible. These delegations called for maintaining the concept of representative government in the text”.Footnote 22 In the end, on that issue, the meeting “agreed on the need to promote a system of government which would be as representative and all-inclusive as possible”Footnote 23 and the formulation was changed to read: “[p]romotion of a system of government that is representative and all-inclusive”.Footnote 24
A number of states were further concerned about the import of draft article 8(2)Footnote 25 and its possible contradiction with Islamic law and custom, particularly in so far as it requires state parties to “adopt legislative and administrative measures to guarantee the rights of women”. They also enquired into the meaning of “other marginalized and vulnerable social groups”.Footnote 26
Draft article 10(2), as it stood,Footnote 27 attracted a number of reservations during the negotiations. Several states considered the provision intrusive and prescriptive and wanted to understand whether a referendum would still be required if the existing constitution did not provide for one. In the end, the draft article was accepted with amendments.Footnote 28
Draft article 19(1), (2) and (3) also attracted a number of questions and concerns in light of the fact that some states did not have “independent and impartial national electoral bodies (IEMBs) that shall manage electoral processes and systems”. In some cases, these bodies reported to the minister in charge of the interior, who has overall responsibility in respect of elections. In at least one country, presidential elections are excluded from legal challenge in the judiciaryFootnote 29 although no state opposed the provision requiring the undertaking of state parties to establish and strengthen national mechanisms that redress election related disputes in a timely manner. With regard to paragraph (3), which initially required “fair and equitable access by contesting parties and candidates to the private and state-controlled media during elections”, the scope was changed to “state-controlled media” to accommodate the concerns of some states that had argued that states could not legitimately exercise any or effective control over private media.Footnote 30
The requirement in draft article 43(1) that states endeavour to provide “free and compulsory basic education to all, especially girls, rural inhabitants, minorities, people with disabilities and other marginalized social groups” attracted questions about its feasibility against the backdrop of limited resources. In the end, states accepted it as an aspirational provision.
At the June 2006 ministerial meeting in Brazzaville, with the view to finding a solution to the outstanding issues before the ordinary session of the Executive Council, discussions focussed on a number of issues, including “the independence of national electoral bodies, the repressive nature of democratically elected governments and revision of constitutions to prolong tenure of office”.Footnote 31 With regard to the notion of independence of the national electoral bodies (the current article 17),Footnote 32 it was asserted that “the organization of elections was the responsibility of the state and that under such circumstances, the issue was rather one of impartiality and neutrality”Footnote 33 and “emphasized that the independence of national electoral bodies could only be in the operational sense, that is, with regard to decision-making and not necessarily in terms of structure and resources”.Footnote 34 In the end, the meeting agreed that “the principle of independence of national electoral bodies should be adopted on the understanding that such independence was operational”.Footnote 35 However, this understanding was not reflected in the adopted ACDEG and the AU Commission issued no official travail preparatoire. In the circumstances, in APDH v Côte d'Ivoire the ACtHPR limited its consideration of the ACDEG to its provisions and held that “an electoral body is independent where it has administrative and financial autonomy; and offers sufficient guarantees of its members’ independence and impartiality”.Footnote 36
In all the various meetings, including in Brazzaville, draft article 25(5) (the present article 23(5)), which originally prohibited constitutional amendments to extend the tenure of a government in power, was the most controversial and remained unresolved until the Executive Council's very last session. Discussions on this paragraphFootnote 37 focused particularly on whether or not to maintain the whole paragraph and the phrase “to prolong the tenure of office for the incumbent government”. Three delegations were against maintaining this phrase on the grounds that such a prolongation “depended on the expression of democracy by the people, in accordance with the constitutional rules and procedures in force”.Footnote 38 Other delegations insisted on the need to maintain this phrase, basing their argument on the fact that “it was essential to ensure democratic alternation and thus prevent any attempt to remain indefinitely in power through revision of constitutions and relevant legal instruments by the incumbent government, contrary to the spirit and letter of constitutional provisions”.Footnote 39
At the Executive Council session held in Addis Ababa, Ethiopia, in January 2007, at which the draft text was considered and subsequently approved, the issue of the revision of constitutions and legal instruments to prolong tenure of office (article 25(5)) arose again, this time raised by Algeria and supported by Uganda. However, after consultation, an understanding was arrived at and consensus reached to approve the entire draft ACDEG unanimously and to recommend it to the Assembly of Heads of State and Government for adoption.Footnote 40 As such, the Executive Council adopted decision EX.CL/Dec.320 (X), which:
“(2) Reiterates the importance of the African Charter on Democracy, Elections and Governance in the consolidation of commitments collectively taken by member states to promote Democracy and Good Governance on the Continent; (3) Takes Note of the clarifications provided by the Legal Counsel of the Commission on the concerns raised by some member states; and Recommends the Charter, which is a major step towards the realization of the democratic agenda of the Union, for adoption by the Assembly”.
While the experts and ministers appreciated the importance of the ACDEG (as indicated in the Executive Council decision), they had no direct discussions on the issue of the ACDEG's justiciability. Nevertheless, delegates approved the provision in the current article 25(5), which provides that “[p]erpetrators of unconstitutional change of government may also be tried before the competent court of the Union”, suggesting that some of them may have had in mind the possibility of at least some of the provisions of the charter being justiciable.