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The African Union, Constitutionalism and Power-Sharing

  • Stef Vandeginste

Abstract

Over the past decade, the African Union has put in place a normative framework to promote constitutional rule and, in particular, orderly constitutional transfers of power in its member states. Its Peace and Security Council opposes unconstitutional changes of government, including through the use of sanctions. The PSC systematically advocates a return to constitutional order, in particular through free and fair elections, as a remedy for unconstitutional changes of government. However, while opposing unconstitutional means of obtaining or transferring power, the AU has been generally supportive of the use of power-sharing agreements as an instrument of negotiated conflict settlement. Most power-sharing agreements do not accord with the prevailing constitutional order. This dual policy, of opposing certain types of unconstitutional change of government while advocating power-sharing agreements, poses an obvious challenge for the consistency of AU policy.

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1 Art 3(f) of the Constitutive Act of the AU, adopted on 11 July 2000 at the Lomé Summit in Togo, entered into force in 2001.

2 Id, art 3(g).

3 McGowan, PAfrican military coups d'états, 1956–2001: Frequency, trends and distribution” (2003) 41/3Journal of Modern African Studies 339.

5 Ibid.

6 Ibid.

7 Ibid.

8 The Constitutive Act, above at note 1, art 3(g).

9 Williams, PFrom non-intervention to non-indifference: The origins and development of the African Union's security culture” (2007) 106/2African Affairs 253.

10 The Constitutive Act, art 4(m).

11 Id, art 4(p).

12 Optional Protocol of 9 July 2002 relating to the Establishment of the Peace and Security Council of the AU, art 2.

13 Id, art 7(1)(g).

14 The Charter, arts 47–48.

15 Id, art 2.

16 Id, art 5.

17 Id, art 10.

18 Id, art 15.

19 Id, arts 17–22.

20 Id, art 24.

21 The notion of a coup d'état (not defined in the Charter) mostly refers to events that last for no more than a couple of days and through which an incumbent political regime is illegally replaced at the highest level of power by a number of military officers, possibly in conjunction with civilian politicians: I Souare Civil Wars and Coups d'Etat in West Africa (2006, University Press of America) at 2930.

22 The Charter, art 23.

23 Id, art 25(1).

24 Id, art 25(2).

25 Id, art 25(3).

26 Id, art 25(6).

27 Id, art 25(4).

28 Id, art 25(5). This provision is remarkable because no court with criminal jurisdiction currently exists at the AU level. However, a draft protocol on amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (suggesting the introduction of the crime of unconstitutional change of government) was discussed at an AU meeting of government experts and ministers of justice or attorney generals in Addis Ababa in May 2012.

29 Id, art 25(7).

30 Id, art 25(8).

31 Id, art 25(9).

32 Id, art 26.

33 AU Assembly “Decision on the resurgence of the scourge of coups d'état in Africa”: Assembly/AU/Dec.220 (XII), February 2009.

34 AU Assembly “Decision on the prevention of unconstitutional changes of government and strengthening the capacity of the African Union to manage such situations”: Assembly/AU/Dec.269(XIV) rev 1, 2 February 2010.

35 Id, para 6(i)(c).

36 The table also includes selected positions adopted by the OAU Central Organ of the Mechanism for Conflict Prevention, Management and Resolution after the adoption of the Lomé Declaration. The analysis covers developments occurring before 1 January 2011.

37 See the Protocol on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security of ECOWAS, adopted on 21 December 2001.

38 This referendum was called by incumbent President Tandja in order to allow him to run for an extra term of three years. Although this referendum was ruled to be unconstitutional by the Constitutional Court, the AU had not (rightly so, given the definition laid down in the Lomé Declaration) classified it as an unconstitutional change of government. Implicitly, however, by calling for a return to the status quo ante prior to the referendum, it confirmed the unconstitutionality of the referendum.

39 In this case, the PSC also “declared null and void all measures of constitutional, institutional and legislative nature taken by the military authorities and that followed the coup d'état of 6 August 2008”: PSC communiqué of 22 September 2008, PSC/MIN/Comm.2 (CLI), para 7. While this statement appears to be the logical consequence of a return to the status quo ante, it is a remarkable interference by the PSC in the domestic legal order of Mauritania.

40 PSC statement of 4 August 2005, PSC/PR/Stat.(XXXVI)–(ii).

41 PSC communiqué of 8 September 2005, PSC/PR/Comm.1(XXXVII), para 3.

42 Hartzell, C and Hoddie, MCrafting Peace. Power-Sharing Institutions and the Negotiated Settlement of Civil Wars (2008, Pennsylvania State University Press).

43 AU, statement delivered by Her Excellency Mrs Julia Dolly Joiner, commissioner for political affairs, AU Commission at the parliamentary conference on democracy in Africa organized jointly by the Inter-Parliamentary Union and the Parliament of Botswana (14 September 2009) at 3.

44 International Peace Institute “Election-related disputes and political violence. Strengthening the role of the African Union in preventing, managing and resolving conflict”: report of the AU Panel of the Wise, AU series (July 2010) at 4.

45 See, for example, Lijphart, AConstitutional design for divided societies” (2004) 15/2Journal of Democracy 96 and Horowitz, DEthnic Groups in Conflict (2000, University of California Press).

46 Signed in Accra on 18 August 2003.

47 Id, para 1(a).

48 Id, para 1(b).

49 Id, para 1(c).

50 Adopted on 9 August 2009, available at: <http://www.ua.ac.be/main.aspx?c=.POWERSHARING&n=110099> (last accessed 6 November 2012).

51 Id, art 35.

52 Id, art 42.

53 Id, art 43.

54 PSC communiqué of 19 February 2010, para 6.

55 Protocol II Democracy and Good Governance, chap II (“transitional arrangements”), art 15(2).

56 Id, art 22(2).

57 Vandeginste, SStones Left Unturned. Law and Transitional Justice in Burundi (2010, Intersentia) at 392–93.

58 Arusha Agreement, arts 2–3.

59 Art X (“review of the present constitution”).

60 Dated 23 January 2003, available at: <http://www.ua.ac.be/main.aspx?c=.POWERSHARING&n=110047> (last accessed 6 November 2012).

61 For a critical analysis by a former Constitutional Council judge, see MA Baroan “Démocratie et élections en Côte d'Ivoire: Ombres et lumières” [“Democracy and elections in Côte d'Ivoire: Shadows and light”] (paper presented to the world congress of the International Association of Constitutional Law, October 2010).

62 The Constitutive Act, art 30.

63 Cowell, FPreventing coups in Africa: Attempts at the protection of human rights and constitutions” (2011) 15/5The International Journal of Human Rights 749 at 751.

64 See Lindberg, S (ed) Democratization by Elections: A New Mode of Transition (2009, Johns Hopkins University Press).

65 Levitt, JIllegal peace? An inquiry into the legality of power-sharing with warlords and rebels in Africa” (2005–06) 27/2Michigan Journal of International Law 495 at 506.

66 See the (internal) UN Secretary-General “Guidelines for UN representatives on certain aspects of negotiation for conflict resolution” (1999, updated in 2006).

67 The Charter, art 25(4).

68 See the proposed legislative development referred to above at note 28.

69 International Peace Institute “Election-related disputes and political violence”, above at note 44 at 4.

70 The Constitutional Court validated the coup d'état by Rajoelina (decision No 03-HCC/D2 of 23 April 2009 Concernant des requêtes relatives à la situation de transition [Regarding requests relating to the transitional situation]).

* Lecturer, Institute of Development Policy and Management and post-doctoral fellow, Faculty of Law, University of Antwerp. An earlier draft of this article was presented at the conference on African constitutionalism: “Present challenges and prospects for the future”, held at the University of Pretoria in August 2011. The author thanks Koen De Feyter, Sahla Aroussi, Chandra Sriram and Christina Murray for their helpful questions and comments. Email:

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The African Union, Constitutionalism and Power-Sharing

  • Stef Vandeginste

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