Background on Eritrea

As is true with all African states, the State of Eritrea is a creation of colonialism. At different times, the territories of present day Eritrea have been ruled by the Ottomans, Egyptians, Axumites, Ethiopians and a sundry mix of indigenous powers.Footnote ¹¹ However, until the 1880s, there was no identifiable political entity that could be considered a precursor for Eritrea.Footnote ¹² This changed with Italian colonization in the second half of the nineteenth century.Footnote ¹³ The Italians set foot on what is now Eritrea in 1886, swiftly captured the whole landmass of the present day Eritrea, and signed treaties with neighbouring powers delineating the boundaries of the newly carved colonial territory.Footnote ¹⁴ By 1908, all sides of Eritrea except the Red Sea were delineated by treaties.Footnote ¹⁵ From then until 1941, when the Italians were forced to surrender Eritrea to the British as part of the Second World War skirmishes, Eritrea existed as a colony of Italy. British military administration governed Eritrea until 1952.Footnote ¹⁶

In the same year, Eritrea was federated with Ethiopia. The federal arrangement provided for an autonomous Eritrean government with legislative, executive and judicial powers over internal Eritrean affairs.Footnote ¹⁷ Nevertheless, Eritrean autonomy was not well understood by the other partner of the federation, Ethiopia, which in no time resorted to destroying the sprit of the federation agreement and eventually, in 1962, annexed Eritrea as a province of Ethiopia.Footnote ¹⁸ The abolition of the federal arrangement was followed by brutal Ethiopian governance which fed the discontent of Eritreans, many of whom had been in favour of full Eritrean independence as opposed to a federation. Once again Eritreans were keen to see the autonomy given to Eritrea restored and strictly respected. When this did not happen, Eritrean resentment became an armed struggle aimed at re-establishing Eritrean autonomy. Under the dominant leadership of the Eritrean Peoples Liberation Front (EPLF), Eritrea finally won its independence from Ethiopia in 1991.Footnote ¹⁹ In 1992, the EPLF formed a provisional government and has since ruled Eritrea under provisional and transitional frameworks, excluding all opposition political forces, which have remained in exile.Footnote ²⁰ In 1994 the EPLF was renamed the Peoples Front for Democracy and Justice (PFDJ).

Establishment of the Provisional Government of Eritrea

The transitional government, officially called the Provisional Government of Eritrea,Footnote ²¹ was established on 22 May 1992 by Proclamation No 23/1992.Footnote ²² Although establishment of the provisional government came a year later than the date the EPLF took full control of Eritrea, the EPLF was nonetheless the de facto government of Eritrea immediately after Independence Day. With its high emphasis on strict organizational discipline, the EPLF was criticized by its adversaries for being less democratic in its governance.Footnote ²³ Yet, before and at the time it liberated the whole of Eritrea, the EPLF was so popular that its conquest of the Eritrean capital and other areas previously under Ethiopia was received with mass jubilation that continued for years. Except for exiled opposition leaders who wanted an inclusive transitional government, the majority of the Eritrean public welcomed the leadership of the revolutionary heroes. Thus, establishing a provisional government was simple for the EPLF which simply changed its organs into the executive and the legislative branches of the provisional governmentFootnote ²⁴ and adopted the judicial structure of the defeated Ethiopian regime.Footnote ²⁵

On 19 May 1993, Proclamation No 23/1993 was replaced by Proclamation No 37/1993: Proclamation to Determine the Structures, Powers and Responsibilities of the Government of Eritrea. Before this, Eritreans had legally affirmed the de facto independence of their country under a UN supervised national referendum conducted in April 1993. For all purposes, Proclamation No 37/1993 became the interim constitution of Eritrea.Footnote ²⁶ Among other changes, article 4(4) of the interim constitution defined more specifically the timeframe of the transitional period to be four years counting from May 1993, within which time a constitution was to be drafted and accordingly elections were to be conducted for the establishment of a constitutional government.Footnote ²⁷

Drafting and ratification of the Constitution of Eritrea

The interim constitution gave powers to Eritrea's transitional National AssemblyFootnote ²⁸ to establish a commission that was mandated to draft a constitution. The National Assembly was also empowered to ensure that the draft constitution was approved by a representative body of the Eritrean public and to establish and monitor committees that would draft the legislation required for establishing constitutional order, such as press and election laws.Footnote ²⁹ Accordingly, a constitution drafting commission was established on 15 March 1994 by Proclamation No 55/1994: Proclamation to Provide for the Establishment of the Constitutional Commission (the Commission). The constitution was drafted and debated between 1994 and 1997. It was finally ratified on 23 May 1997 by a constituent assembly established for the purposes of ratification. Several scholars have emphasized that the Constitution is a product of popular participation, a will of the people. Professor Rosen for example noted:

Similarly Professor Hart also observed that “[b]etween 1994 and 1997, Eritreans engaged in constitutional education and consultation, addressing a nation with markedly low literacy rates through songs, poems, stories, and plays in vernacular languages, and using radio and mobile theatre to reach local communities”.Footnote ³¹ As an insider who knows the politics of the Eritrean independence struggle and the Eritrean public, the most authoritative testimony in this regard is Professor Dan Connell's observation:

McCord also agrees:

Indeed, the constitution-making process was the most democratic exercise the country had ever experienced. What is worth noting for the purpose of the main theme of this article is the fact the GoE fully backed the whole process.Footnote ³⁴ In fact, the GoE took much credit and received many compliments for the democratic nature of the process. However, some Eritrean opposition critics question the genuineness of the public participation and argue the whole endeavour was window-dressing; they assert that the public input was ultimately discarded.Footnote ³⁵ However, when many of the exiled opposition organizations' critics eventually boycotted the Constitution, they were criticized by many for boycotting the Constitution instead of accepting it initially and then seeking improvements.Footnote ³⁶ Clearly, it is politically more expedient to pressure the GoE to respect “a reasonable, well-written Constitution”Footnote ³⁷ than to denounce it outright.Footnote ³⁸ The opposition now seems to have accepted this line of argument. In their Unity Congress held from 5 to 11 May 2008, exiled opposition organizations passed a resolution announcing their “readiness to study means of holding a dialogue with the … [GoE] provided … [it] shows its readiness to find a peaceful means to resolve the political crisis in Eritrea by paving the way for a democratic transformation and establishing a constitutional rule that conforms to the will of the people and their aspiration for security and stability.”Footnote ³⁹

Betrayal of popular promises

Given the fact that the Constitution is the result of popular participation, a will of the people, grossly violating the Constitution represents a breach of the covenant between the GoE and the Eritrean people. Clearly, the preamble of the Constitution declares that the document is a covenant between the Eritrean people and the government which the people will form by their free will. However, almost 12 years after its ratification, the Constitution has remained unimplemented. The Constitution does not contain an entry into force clause nor any transitional provision that should have indicated the precise entry into force date. With the wealth of expertise represented by the Commission which drafted the Constitution, this omission appears glaring. One explanation for the omission of an entry into force clause may be found in the fact that the GoE was exceptionally popular during the period preceding ratification of the Constitution. The GoE offered substantial assistance to the process, so much so that there was, as the commissioner of the Commission explained, trust in the GoE. That trust led the Commission to believe that the GoE would launch the Constitution expeditiously after having brought all subsidiary legislation and practices into conformity with the Constitution.Footnote ⁴⁰ Nevertheless, ever since the ratification of the Constitution, the government has shown no genuine interest in its implementation nor in facilitating general elections, especially after a border conflict erupted between Eritrea and Ethiopia in May 1998 which lasted until 2000.

In the last 12 years, the GoE has provided many excuses to justify its failure to implement the Constitution, many of which are paradoxical. The most common excuse is the Eritrea-Ethiopia border conflict, which was resolved according to a major peace accord signed by the two countries in December 2000 and a final and binding international arbitration decision rendered in April 2002.Footnote ⁴¹ Although a tense political situation prevails between the two countries, legally speaking there is no situation of war or state of emergency to warrant the suspension of the Constitution for 12 years. In spite of this, the GoE continues to allege that prevalence of a war situation coupled with the threat of “internal sabotage” is hampering implementation of the Constitution.Footnote ⁴² However, the GoE's determined reluctance has been revealed in several interviews given by top GoE officials at different times. A recent example is that of the “president” who bluntly stated that the Constitution is “a paper” and therefore he does not want to cheat and mislead everyone that this paper is a panacea.Footnote ⁴³ By this statement, the president has undeniably pronounced his reluctance to implement the Constitution. The “president” also indicated that the rule of law is not the only option for good governance.

On the other and, in contradiction to his previous stand, the “president” recently explained that there is no longer an emergency situation between Eritrea and Ethiopia, implying that there is no good reason for the postponement of the country's democratization process. However, when asked when elections are going to be held in Eritrea, he replied that they may never happen or they may happen only after three to four decades. In addition, he made it unequivocally clear that he will not abide by the democratic principles outlined in regional and international treaties.Footnote ⁴⁴

Objectively, except for the period of war between May 1998 to 2000, there has been nothing of consequence to hinder the implementation of the Constitution, ie the democratization process in the country. For example, in 2004, nationwide sham elections for regional assemblies and local institutions were conducted in Eritrea.Footnote ⁴⁵ The very fact that these elections were conducted and, according to the GoE's evaluation, were free and fair and went smoothly, suggests that the alleged war situation was not a hindrance to general elections being conducted at national level and or to the Constitution being implemented. There is of course one important point to make here. Elections at regional level, even if free and fair, do not substantially affect the position of higher government officials, and they are good only for foreign consumption. On the other hand, had the Constitution been implemented and general elections conducted, there would have been no way the “president” could have held office up to now except in clear violation of the two term (each for five years) limitation under the Constitution.Footnote ⁴⁶ Unlike some African leaders who rigged elections and amended term limitations to enable them to stay in power longer, the Eritrean “president” opted to ignore the Constitution for 12 years. On the other hand, national elections in accordance with the interim constitution have not taken place in the last 17 years. The term of the transitional parliament (the National Assembly) and the “president” expired in 1997.

Implications of the GoE's refusal to implement the Constitution

As is shown in next section, the GoE's reluctance to end its transitional existence and open the country for constitutional democracy fits into the typical definition of unconstitutional change of government prohibited by the AU. The Eritrean case demonstrates a typical case of illegal perpetuation of a transitional government beyond the duly defined transitional period in clear contempt and defiance of the will of the people: the Constitution. In accordance with the Constitution, two rounds of elections for the national legislature should have been held by now. There has been none and there is none scheduled in the near future. To neglect a ratified constitution is tantamount to negating the will of the people whose delegates ratified the constitution.Footnote ⁴⁷

At the national level, the GoE is therefore in clear and material breach of the principle of pacta sunt servanda [commitments must be honoured]. Paragraph 8 of the Constitution's preamble reads that the Constitution will be “a covenant between [the Eritrean people] and the government, which [the people] will be forming by [their] free-will”. Paragraph 9 also reads that the Constitution is “the fundamental law of … Sovereign and Independent State of Eritrea.” In clear terms, article 2(1) provides that the “Constitution is the legal expression of the sovereignty of the Eritrean people”. Further, article 1(3) of the Constitution clearly provides that “[i]n the State of Eritrea, sovereign power is vested in the people, and shall be exercised pursuant to the provisions of this constitution”. Most importantly, article 2(2) reads that the “constitution enunciates the principles on which the state is based and by which it shall be guided and determines the organization and operation of government. It is the source of government legitimacy” (emphasis added). Article 2(3) also states that the Constitution “is the supreme law of the country and the source of all laws of the State, and all laws, orders and acts contrary to its letter and spirit shall be null and void”.

In the very first article of the Constitution, the state is founded on the principles of democracy, social justice and the rule of law; the Constitution requires the state “to guarantee its citizens broad and active participation in all political, economic, social and cultural life” and “to establish appropriate institutions to encourage and develop people's initiative and participation in their communities”. It requires the conduct of the affairs of government and all organizations and institutions to be accountable and transparent, and the organization and operation of all political, public associations and movements to be guided by the principles of democracy. Article 7(7) of the Constitution requires the state to “create conditions necessary for developing a democratic political culture defined by free and critical thinking, tolerance and national consensus”. An acceptable level of separation of powers is designed between the three main government branches. Article 10 and chapter VI as a whole provide for an independent and competent judiciary. Article 11 provides for a competent civil service. In chapter III, the Constitution contains a bill of rights comparable to the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic Social and Cultural Rights (ICESCR). In articles 53, 58 and 32(12) the Constitution further provides for institutions designed to support democracy. These include a judicial service commission, electoral commission and various parliamentary committees. Regrettably, nothing on the ground in Eritrea today remotely resembles the requirements stated in the Constitution.

Contextualizing the non-implementation of the Constitution

Between 23 May 1997 and late 2000, many Eritreans who trusted the GoE accepted that the border conflict between with Ethiopia was a legitimate hindrance to the implementation of the Constitution. After the end of the conflict, many Eritreans expected the GoE to implement the Constitution and facilitate constitutional order; the Constitution had been a law in force but not put into force due to an intervening factor or force majeure. Thereafter, the GoE's reluctance to implement the Constitution has been clear. In simple terms, the GoE deliberately set the Constitution aside, ignored the statutes and continued to govern without any legitimacy. Not only did the GoE disregard the Constitution, it passed legislation and ratified regional and international treaties that have never been respected in so far as they limit the GoE's powers. Disregard of the Constitution therefore constitutes complete defiance of the rule of law manifested in an extreme form. The criminal justice system in Eritrea has been devastated. The interim constitution in force since 19 May 1993 provides for an independent judiciary with powers to safeguard the rights of citizens. However, over time the judiciary has been emasculated and finally rendered impotent, such that it only serves to handle disputes between and among individuals with no implication whatsoever for cases related to fundamental rights and freedoms, or issues regarding the limitations of government power.Footnote ⁴⁸

There is no bar or any form of association for the legal profession. In fact there are no free associations and no political parties on Eritrean soil, no independent press and no privately owned media.Footnote ⁴⁹ There is no ombudsman or human rights commission, and no judicial service commission or similar institution required for there to be democratic order. During and after the border conflict with Ethiopia, the transitional National Assembly established by the interim constitution barely functioned.Footnote ⁵⁰ General and direct elections for the National Assembly have never been held. The transitional assembly's tenure expired in 1997. Three rounds of elections for regional assemblies were conducted. Whereas the first two rounds were relatively free and fair, the last one, together with many other minor elections for small grassroots institutions, were conducted mainly to cover the absence of elections at higher and more important levels. In any case, the so-called local institutions about which the GoE boasts have no meaningful powers. Human rights violations in Eritrea are rampant. Extensive research has documented the commission of crimes against humanity.Footnote ⁵¹ The following paragraph describes the situation:

In the past five years, the appalling human rights situation has been illustrated by the outflow of the Eritrea public, particularly the youth. Up to 25,000 Eritrean youths flee Eritrea each year, most of them into neighbouring Sudan and Ethiopia.Footnote ⁵³ A small country with fewer than 3 million people at home, Eritrea now stands as one of the top refugee generating countries.Footnote ⁵⁴ A recent study has concluded that Eritreans are fleeing from “a country ruled by a government that commits rampant human rights violations, persecutes political and religious groups, and is not capable of providing human security for its citizens”. The same study recommended that Eritrean asylum seekers should not be repatriated.Footnote ⁵⁵ Various tribunals determining asylum applications have reached the same conclusion.Footnote ⁵⁶ In short, the deviation of Eritrea from the ideals, norms and institutions provided by international, regional and national laws is extremely wide. This is, as shown below, a violation of the right to democratic governance. Specifically seen in the context of the AU's current legal framework, the GoE is illegitimate and must face several sanctions.

The right to democratic governance binding upon Eritrea

Article 1(2) of the UN Charter, to which Eritrea is a party,Footnote ⁶⁸ proclaims “the principle of equal rights and self-determination of peoples”. The right to self-determination has evolved into a more general notion of internationally validated political consultation, one that is beginning to be applied even to postcolonial states in the form of governance based on the wishes of the people.Footnote ⁶⁹ Thus, it enjoys primacy in international law, acquiring the status of jus cogens [a peremptory norm of international law from which no derogation is permitted]. In addition, article 55(c) of the UN Charter commits the UN to the promotion of “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Under article 56, “[a]ll Members pledge themselves to take joint and separate action in co-operation with the [UN] for the achievement of the purposes set forth in Article 55”. Although falling far short of authorizing unilateral or multilateral intervention to compel compliance with human rights standards, these provisions make clear that the pursuit of human rights does not constitute intervention “in domestic jurisdiction” under article 2(7) of the UN Charter.Footnote ⁷⁰

The UDHR, although not a treaty, is nonetheless an international document of high persuasion which many scholars confidently argue represents international custom.Footnote ⁷¹ Article 21(1) of the UDHR provides for the right to democratic governance in these words: “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”. More specifically, article 21(3) states that the “will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”. The rest of the document can only be respected in a democratic political system.

Article 1(1) of the ICCPR, which Eritrea has ratified, provides that “[a]ll peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.Footnote ⁷² The same right is also provided under article 1(1) of the ICESCR, to which Eritrea is a party.Footnote ⁷³ The ICCPR also guarantees the rights to liberty (article 9), freedom of thought, conscience and religion (article 18), hold opinions and freedom of expression (article 19), and assembly and association (articles 21 and 22). More specifically, under article 25 every citizen is guaranteed the right to take part in the conduct of public affairs and to vote and to be elected at genuine periodic elections. Article 20(1) of the African Charter on Human and Peoples' Rights (African Charter), to which Eritrea acceded in 1999, provides for the right to self-determination in words similar to the above mentioned instruments.Footnote ⁷⁴ In addition, article 13(1) provides that “[e]very citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law”.

As an institution empowered to interpret the African Charter, the African Commission on Human and Peoples' Rights has observed that the right of a people to determine its “political status” involves the right of citizens to be able to choose freely those persons or party that will govern them and that government by force is incompatible with the rights of peoples freely to determine their political future, contravening articles 13(1) and 20(1).Footnote ⁷⁵ This is reinforced by the right to liberation from bonds of domination provided under article 20(2) of the African Charter which is not limited to colonial situations but also extends to internal domination by whatever shape or form, including military regimes.Footnote ⁷⁶ The African Charter also provides for other rights such as: non-discrimination (article 2); the right to liberty (article 6); the right to receive information and to express and disseminate opinions (article 9); the right to association and assembly (articles 10 and 11); and the right freely to dispose wealth and natural resources (article 21): all important components for democratic governance. In addition, article 26 of the African Charter provides that states parties “have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter”.

Compared to the former OAU, the AU undertook a significant commitment to democratic governance when it replaced the OAU,Footnote ⁷⁷ and this commitment is evident in the AU's constitution: the Constitutive Act to which Eritrea is a party.Footnote ⁷⁸ Under paragraph 9 of the preamble of the AU Constitutive Act, African leaders expressed their determination “to promote and protect human and peoples' rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law”. Under paragraph 10 they stated their determination “to take all necessary measures to strengthen … [African] common institutions and provide them with the necessary powers and resources to enable them [sic] discharge their respective mandates effectively”. The act contains many aims, some of which (in article 3(f)(g)) are related to democratic governance, such as: the promotion of peace, security and stability on the continent; and the promotion of democratic principles and institutions, popular participation, and good governance. Article 3(h) also requires the AU to promote and protect human and peoples' rights, as articulated in the African Charter and other relevant human rights instruments. In particular, article 30 clearly provides that governments “which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union”. This sanction applies to governments who stay in power unconstitutionally. As provided under article 4 of the act, the AU is required to function in accordance with certain principles which include respect for democratic principles, human rights, the rule of law and good governance, and the rejection of unconstitutional changes of government.

Professor Udombana argued that the “rejection of unconstitutional forms of government is on its way to becoming customary international law in Africa”.Footnote ⁷⁹ Writing a few years later, Professor Levitt observed that there is a “revolutionary evolution of Africa's PDI [pro-democratic intervention] and humanitarian intervention regimes, which surpass in every conceivable way those of any other region”.Footnote ⁸⁰ In Africa, Professor Levitt further argued “a norm of PDI has crystallized through: (1) the consent doctrine (whether treaty-based or ad hoc); (2) customary regional law; (3) the doctrine of self-determination (a jus cogens norm); (4) the emerging doctrine on democracy (emerging customary international law); and (5) perhaps, customary international law similar to the doctrine of humanitarian intervention”.Footnote ⁸¹

This has been so when an established democracy is reversed by unconstitutional means.Footnote ⁸² According to Professor Levitt, examples of PDI are: the interventions by the Economic Community of West African States in Liberia, Sierra Leone, Guinea-Bissau, Guinea, Côte d'Ivoire and Togo; the Mission for the Implementation of the Bangui Agreement in the Central African Republic; Southern African Development Community's operation in Lesotho; and the AU's action in São Tomé and Príncipe.Footnote ⁸³ Professor Levitt contends that “there is no evidence in either African treaty law or state practice to conclude that a right of PDI exists against autocratic, corrupt, or politically as opposed to violently oppressive regimes”Footnote ⁸⁴ and external intervention simply to unseat a bad, democratically constituted government would be unlawful. Levitt also asserts that a government that is unduly oppressive to its citizens is not immune from PDI.Footnote ⁸⁵ The AU has been strong when it comes to juntas who overturn a democratically elected government. If the latter has already been turned to a tyranny, the AU has not insisted on re-instatement but rather on conducting elections to form a new government. On the other hand, the AU has not subjected inherently undemocratic regimes, such as the government in Libya, to the same democratic standards.

The Charter on Democracy and the PSC Protocol

The above mentioned instruments of the AU establish the core of the right to democratic governance. The specific parameters of the right have been articulated in a wealth of scholarly contributions,Footnote ⁸⁶ resolutions and declarations of various bodies,Footnote ⁸⁷ and judicial and quasi-judicial interpretations.Footnote ⁸⁸ As far as Africa is concerned, the Charter on Democracy has, by way of reference to several other documents, codified the details of the right to democratic governance.Footnote ⁸⁹ The Charter on Democracy together with the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (PSC Protocol)Footnote ⁹⁰ provide for measures that should be taken when an unconstitutional change of government takes place.

As clearly stated in the preamble, the AU adopted the Charter on Democracy, among other reasons: (1) inspired by the objectives and principles enshrined in its Constitutive Act which emphasizes the significance of good governance, popular participation, the rule of law and human rights; (2) committed to promote the universal values and principles of democracy, good governance, human rights and the right to development; (3) seeking to entrench in Africa a political culture of change of power based on the holding of regular, free, fair and transparent elections; and (4) concerned about the unconstitutional changes of governments that are one of the essential causes of insecurity, instability and violent conflict in Africa.

The objectives of the Charter on Democracy, outlined in article 2, include promotion of adherence to the universal values and principles of democracy and respect for human rights, and enhancement of adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, a constitution and constitutional order. Furthermore, the objectives include promotion of the holding of regular free and fair elections to institutionalize the legitimate authority of representative government as well as the democratic change of government. Prohibition, rejection and condemnation of unconstitutional change of government in any member state is another of the charter's objectives.

Article 3 outlines key principles on the basis of which African states have expressed their commitment to implement the Charter on Democracy. One of these is respect for human rights and democratic principles. Another is access to and exercise of state power in accordance with a constitution and the principle of the rule of law. Promotion of a system of government that is representative; holding of regular, transparent, free and fair elections; and condemnation and total rejection of unconstitutional changes of government are also key principles. In addition, strengthening political pluralism and recognizing the role, rights and responsibilities of legally constituted political parties, including opposition political parties, which should be given a status under national law, is another key principle.

Article 23 of the Charter on Democracy defines illegal and unconstitutional means of changing government not only to include the obvious coups or putsches against a democratically elected government but also any refusal by an incumbent government to relinquish power: a phenomenon that has happened in Eritrea, as described above. Article 23 also stipulates that such an act shall be met with appropriate sanctions by the AU. Under article 24 of the charter, the PSC is empowered to exercise its responsibilities in order to maintain constitutional order in accordance with relevant provisions of the PSC Protocol.Footnote ⁹¹

Specifically, in accordance with article 25(1) of the Charter on Democracy, when the PSC observes that there is an unconstitutional change of government in a member state, and that diplomatic initiatives have failed, it is empowered to suspend that state from the exercise of its right to participate in AU activities in accordance with articles 30 of the Constitutive Act and 7(g) of the PSC Protocol. The suspension takes effect immediately. In addition, article 25(7) of the Charter on Democracy empowers the AU Assembly to decide to apply other sanctions, including punitive economic measures, to perpetrators of unconstitutional change of government.

The AU Constitutive Act and the PSC Protocol have introduced far reaching changes that have affected the UN and OAU charter-based doctrines related to state sovereignty, non-intervention and monitoring of regional and global peace and security.Footnote ⁹² The PSC Protocol serves as the continent's first continent-wide, regional, collective security system.Footnote ⁹³ It also forms a vital part of the African regional human rights system. The PSC Protocol codifies and provides structure to make operational key provisions in the Constitutive Act, including: article 3(f) which is concerned with promoting “peace, security, and stability on the continent”; article 4(h) concerning the AU's right to “intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity”; and article 4(j) concerning the right of AU member states to “request intervention from the Union in order to restore peace and security”. Importantly, article 7(g) of the PSC Protocol provides that “[i]n conjunction with the Chairperson of the Commission, the Peace and Security Council shall … institute sanctions whenever an unconstitutional change of government takes place in a member State, as provided for in the Lomé Declaration”.Footnote ⁹⁴ This part has thus extended article 30 of the Constitutive Act which prohibits unconstitutional governments from participating in the activities of the AU.Footnote ⁹⁵

The Lomé Declaration provided for the OAU chairperson and secretary-general, together with a “Central Organ Sanctions Sub-Committee” to be the main actors for imposing sanctions. With the metamorphosis of the OAU to the AU and the establishment of the PSC, the equivalents of these three bodies are the chairperson of the AU, the chairperson of the AU Commission and the PSC itself. Thus, considering article 7(g) of the PSC Protocol, whenever an unconstitutional change of government takes place in a member state, the chairperson of the AU and the chairperson of the AU Commission in conjunction with the PSC are required, on behalf of the AU, immediately and publicly to condemn that change and urge for the speedy return to constitutional order. They are also required to convey a clear and unequivocal warning to the perpetrators of the unconstitutional change that, under no circumstances, will their illegal action be tolerated or recognized by the AU. Following the initial response of condemning the unconstitutional change, a period of up to six months may be given to the perpetrators to restore constitutional order. During the six month period, the government concerned should be suspended from participating in AU organs such as the AU Assembly and the Executive Council.

In accordance with the Lomé Declaration, the chairperson of the AU Commission and the PSC are, in the meantime, required to gather facts relevant to the unconstitutional change of government and establish appropriate contacts with the perpetrators with a view to ascertaining their intentions regarding the restoration of constitutional order in the country. At the expiry of the six month suspension period, a range of limited and targeted sanctions against a regime that stubbornly refuses to restore constitutional order should be instituted, in addition to the suspension from participation in AU organs. These could include visa denials for the perpetrators of an unconstitutional change, restrictions of government-to-government contacts and trade restrictions.

In the event that the unconstitutional takeover causes genocide, war crimes and crimes against humanity, the AU can intervene militarily. It is also arguable that the AU can also intervene militarily in the case of massive and serious human rights violations which have been specifically defined by the African Commission on Human and Peoples' Rights.Footnote ⁹⁶ This is indeed supported by the adopted amendments to the Constitutive Act, article 4 of which has expanded the AU's right to intervene in a member state to include circumstances of “serious threat to legitimate order to restore peace and stability to the Member State of the Union”:Footnote ⁹⁷ a situation which the GoE has caused not only in Eritrea but also in the whole Horn of Africa.Footnote ⁹⁸ In implementing sanctions, the AU is empowered to enlist the cooperation of member states, regional groupings and the wider international/donor communities.

Nevertheless, Africa is not governed entirely by fully fledged constitutional and democratic governments. Military and civilian despots and presidents-for-life are not lacking. Whereas perpetrators of unconstitutional change against a constitutional order should face the sanctions mentioned above, it is not plausible to impose the same sanctions on those who remove despots, provided the latter commit themselves to establishing constitutional order. Despots do not govern by law and do not allow legal or peaceful power-taking.Footnote ⁹⁹ Sanctioning coups directed against such governments would be outlawing one of the most common ways of removing despots. Emanating from their right to self-determination and their right to rebel against injustices, peoples have the right to decide for themselves what kind of government they want, and this includes the right to revolt and to carry on armed conflict in opposition to or in pursuit of the government they want.Footnote ¹⁰⁰

The Charter on Democracy and the PSC Protocol vis-à-vis EritreaFootnote ¹⁰¹

Eritrea has not ratified either instrument: evidence of its poor ratification record.Footnote ¹⁰² It is however arguable that these instruments bind Eritrea. The Charter on Democracy, although hitherto only ratified by one country (Mauritania), is an attempt to codify previously agreed provisions. It is therefore arguable that, at a minimum, the parts that deal with unconstitutional change of government reflect customary African law. In addition, as clearly stated in the preamble of the Charter on Democracy, the AU adopted the charter, among other reasons, inspired by the objectives and principles enshrined in its Constitutive Act, which Eritrea has ratified. The Charter on Democracy is also an extension of the Constitutive Act.

Arguably, the PSC Protocol also binds Eritrea in accordance with the exceptional principle provided by the Vienna Convention on the Law of Treaties (Vienna Convention).Footnote ¹⁰³ As provided under article 34 of the convention, the general rule regarding third states is that “[a] treaty does not create either obligations or rights for a third State without its consent”.Footnote ¹⁰⁴ However, there are exceptions to this general rule which arguably are applicable to the relationship between Eritrea and the PSC Protocol.

Article 35 of the Vienna Convention provides that “[a]n obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing”. Clearly the PSC Protocol is intended to establish obligations on non-party states. Specifically, “Member States” according to article 1(i) of the PSC Protocol, means “Member States of the African Union” and not member states of the PSC Protocol only. Paragraphs (2), (3) and (4) of article 7 of the PSC Protocol further support this argument by providing obligations to member states of the AU, thus clearly indicating that the protocol was intended to have effect on non-parties as well. Article 6(a) of the PSC Protocol further supports this argument by stating that the PSC “shall perform functions in … Africa”. However, for such obligations to bind a third state, the latter has expressly to accept that obligation in writing, which Eritrea has not done. The Vienna Convention regulates situations where treaties provide for rights for third states:

Article 4(j) of the Constitutive Act gives a member state a right “to request intervention” from the AU in order to restore peace and security. Article 4(j) of the PSC Protocol also gives that same right to all AU member States. Thus the PSC Protocol has in clear terms created a right to third states: to all AU members. It is arguable that Eritrea assented to this part of the PSC Protocol because, according to article 36(1) of the Vienna Convention, Eritrea has not indicated to the contrary: a case where silence amounts to acceptance. In addition, Eritrea has assented to the same right under the Constitutive Act.

Eritrea did not assent to the specific manner of intervention provided by the PSC Protocol. However, in accordance with article 36(2) of the Vienna Convention, Eritrea is bound to “comply with the conditions for its exercise” provided in the PSC Protocol. In this regard it is unequivocal that the PSC Protocol is basically the implementation mechanism of the Constitutive Act. If Eritrea were to invoke its right to “request intervention from the Union in order to restore peace and security”, it would only be in accordance with the mechanism put in place by the PSC. Indeed Eritrea or any other African state not a party to the PSC Protocol would not be justified to invoke its right to request intervention outside the mechanism already put in place by the AU. In most cases, the costs involved in establishing a new mechanism would be prohibitive. On the other hand, if Eritrea can use the mechanism established in accordance with the PSC Protocol in exercising its right to request intervention, it cannot reject the same intervention mechanism when the AU invokes its right to intervene, ie if the PSC opts to take measures that require intervention.

In any case, the application of the PSC Protocol on non-members to the protocol is rendered of no practical significance by subsequent state practice which, according to article 31(3)(b) of the Vienna Convention, is used to establish the agreement of the parties. At its 140th meeting held on 29 June 2008 at the level of heads of state and government, the PSC adopted decisions on a border clash between Djibouti and Eritrea.Footnote ¹⁰⁶ The PSC strongly condemned Eritrea's military action against Djibouti on the common border and demanded that Eritrea withdraw immediately and unconditionally from the Djiboutian territories it occupies.Footnote ¹⁰⁷ The PSC has also engaged Eritrea and Ethiopia for their lengthy border clash. In neither instance did Eritrea dismiss the PSC as lacking jurisdiction on the matter. The PSC was also faced with a resurgence of coups in 2008, three of which happened in non-members states to the PSC Protocol: Mauritania, Guinea-Bissau and Guinea. In the life of the PSC, Mauritania has faced two coups, the other being in 2008. The PSC was involved in all four of these incidents. With regard to the second coup in Mauritania, the PSC imposed sanctions. On 5 February 2009, the AU suspended Mauritania, froze assets and imposed visa and travel bans on members of the junta and its supporters.Footnote ¹⁰⁸ Interestingly, the PSC imposed the sanctions in defiance of the opposition from the chairman of the AU, the Libyan president.Footnote ¹⁰⁹ The sanctions were lifted in July 2009 only after the juntas agreed with civilian opposition leaders to conduct free and fair elections. Even though Mauritania is not a party to the PSC Protocol, the PSC was not challenged by the juntas.