Adaobi Egboka

Thank you so much. Christie, please.

Adaobi Egboka

Thank you so much. Obi?

Adaobi Egboka

Thank you so much. And please, Joshua.

Adaobi Egboka

Thank you so much. To kick off the discussion, I will start with Chris. Chris, I know from your experience you can answer this, where have we seen international law demand about democracy arise, and then in what circumstances does this tension between international law and democracy tend to come up on the continent? Is it always a response of some sort, or do you see it as a clash?

Christopher Fomunyoh

It is true that in the past three decades or so as democratization has taken root on the continent and many African countries have sought to make the transition from one-party military or authoritarian regimes to functioning democracies, that there have been tensions in the expansion of political space, citizen participation, and issues of human rights, rule of law have become flashpoints that have generated conflicts. And in some cases, the inability of national institutions, national courts to render justice and to provide remedy to the victims has led to international interventions in that arena.

The examples that come to mind—and I will just share three to open up the conversation—is when we look at the genocide in Rwanda in 1994, and we realized that the genocide, the trigger moment, really came about because of the failure of the Arusha Accords, the lack of implementation of the Arusha Accords. We may remember that when the negotiations began between the parties, the government of Rwanda at the time and the RPF, which was a rebel movement at the time, one of the first protocols to be signed in August of 1992 was the protocol on rule of law, human rights, and political pluralism. The idea behind the protocol was to expand political space so that citizens could participate peacefully in the transition that the country was about to experience, to move from that one-party state, from a military rule, into a functioning democracy. We saw what happened when the genocide broke out in 1994, and then the intervention of the International Criminal Court and all of the other institutions that stood up to deal with that conflict.

In more recent times, we also saw in Kenya in 2007 and 2008, the violence that broke out after the disputed elections in which incumbent president Mwai Ki declared himself the winner in the victory that was contested by the main opposition party led by Raila Odinga at the time and the fact that over 1,500 people died and there was a lot of destruction of property and ethnic-motivated violence in Kenya, which went beyond the power of the Kenyan judiciary to handle that situation, and we are all very conversant with the investigations of the International Criminal Court.

And also, in 2010–2011, we saw what happened in Cote d'Ivoire when after disputed presidential elections, there was violence, a dispute over the outcome. There was violence that led to over 3,000 deaths, including in the capital city of Abidjan itself. In that case, the International Criminal Court intervened. The president at the time, Laurent Gbagbo, ended up being charged and prosecuted at the court and spending many years at The Hague alongside some of his accomplices.

In a nutshell, as the continent struggles with democratization, we do have instances where the rule of law needs to be upheld, where national institutions may be unable to do so, and where regional and international entities are then called upon to intervene. Thank you.

Adaobi Egboka

Thank you so much. You have raised very key, vital points in terms of the crisis we saw in Kenya, the issue around the genocide, and then what happened in Cote d'Ivoire. I do not know if anybody has anything to add to that when we think about, has this always been a response, especially when it comes to election monitoring issues around democratic backsliding and coups. Obi, do you have anything to add to that, if I may?

Obiora Okafor

On election monitoring?

Adaobi Egboka

Yes. On where you have seen the legal demands about democracy arise.

Obiora Okafor

I can add to that. The normative frame on the continent in terms of demands for democracy and obligations is robust. We are very good at producing these texts and, to an extent, implementing them. The demand from below, so to speak, is extremely strong. Despite the torrent of coups in parts of the continent, all the data suggests that the vast majority of people on the continent demand democracy. So both in terms of the demands from above, in terms of normative framework, and demands from below, it is exceedingly robust.

I can just quickly illustrate that point. If you look at the African Charter, it is clear. So too if you look at the African Charter on Human and People's Rights. If you look at the African Charter on Democracy, Elections, and Good Governance, which is ratified by 38 of our 55 eligible states on the continent, it is very robust. Article 10(2) of this latter charter, the one on Democracy, Elections, and Good Governance, which is as far as telling states how to amend their constitution, this is unprecedented. It is that granular. It is that directive. You cannot simply amend your constitution by a parliamentary majority. That is what the law says. There is no equivalent anywhere else, at least in terms of treaties.

The Inter-American Court is quite robust and directive in terms of what it does from case law to case law, but in terms of a textual provision, you do not have documents as robust anywhere else on the continent.

It is a massive thing to tell a country how to amend its constitution. Most countries will not countenance being directed by an international court or international treaty as to how to do this. An international court, the African Court of Human and Peoples’ Rights, has implemented this provision in so-called Benin case, which is an extremely important case. My good friend and colleague, Olabisi Akinkugbe, has written about this in the American Journal of International Law, in the International Decision Section, about what went on. There was a series of amendments that altogether allegedly violated the plaintiffs’ right to stand as an independent candidate, made it harder for the opposition to run in Parliament. This was taken to the African Court, and the court held for the plaintiffs very robustly, ordering Benin to repeal those constitutional amendments on the basis of their violation of Article 10(2) and so on of the African Charter on Democracy, Elections, and Good Governance. This is a very robust type of approach.

But it does raise issues of subsidiarity in terms of the extent to which courts should defer to states. But as Jorge Contesse's article on the Inter-American Human Rights System has argued, there is a sliding scale when it comes to subsidiarity. Subsidiarity attends to context. When courts perceive that the states they deal with are more established democracies, they tend to give them more of a margin of appreciation, more deference. But when they perceive those states to be not as democratic, they tend to be robust. The African Court aligns in this way with the Inter-American Court in saying, we are not going to give you much room for maneuver, because we know that if we do, you are not going to use it for good purposes and so on. It tends to have that approach.

But there is an open question there, the extent to which eleven judges in Arusha will literally tell their parliament—I think it was passed with a massive majority in the parliament of the Republic of Benin—how to amend the constitution. That is very robust, and that is the key takeaway.

I will stop talking at this point. I have a million things to say, so I could go on and on.

Adaobi Egboka

I am going to come back to you on that, because that is essential in terms of that particular case and the robust ruling that came out of it. I am going to come back to you on that. Obi kicked off the discussion in terms of looking at the developments of legal norms that we are seeing in the continent and beyond. Christine, to what extent have the political bodies and regional organizations played a role in developing these norms? We have heard Obi talk about the Benin case. We hear about what is coming from ECOWAS, what is coming from the AU. Feel free to please engage.

Christiana Essie Sagay

Thank you. Like you said, Obi has mentioned in great detail about the African Charter on Democracy, Election, and Governance. A good place to start is to acknowledge—and I think you mentioned this—that democracy in and of itself as a concept is essentially contested. Chris also talked about pluralism. On the African continent, in some of the normative frameworks that I will also talk about, this is something key that we have seen, the shaping of norms, really understanding the context of countries on the African continent, the distinct ethnicities, the societies, the individuals, and how plural countries on the continent are.

In terms of frameworks, I will quickly touch on two, one in the ECOWAS sub-region, which is the Protocol on Democracy and Good Governance, which was adopted in 2001, and it was established to promote democracy. What I think is really important about this particular instrument is the specific context in which it was adopted. Through the reading of the document and the negotiations leading up to that, you see that there is a lot of emphasis on conflicts and instability in Africa, which there was a lot of that leading to the adoption in 2001 and also the framework thinking about economic challenges and regional integration. All of these very specific issues are wrapped around thinking about what democracy should look like on the continent.

In 2007, the ACDEG, which Obi talked about, was an extension of what has happened in ECOWAS and other sub-regions, really picking lessons from what the sub-regions in Africa had done—SADC, ECOWAS—and thinking about how to consolidate it on the continental level. In the document, like Obi graciously told us, there are very granular details about how countries on the continent should think about democracy, how they think about the constitutional amendment, and all those things go into really looking at the specifics and the context of countries in Africa, looking at historical context, how they came to be, how borders were established, and the conflicts surrounding borders and regions.

When you think about all of that and you think about where we are in Africa, there is the bottom-up approach. There is the agitation for democracy, but I think that these frameworks move beyond the limited approach of procedures and really go into thinking about what the substance of democracy should be like in very specific contexts.

I will stop there for now, and then we can talk more about the rulings of the courts, just to give some context.

Adaobi Egboka

Thank you for providing that baseline as we think about the robustness of the protocol and the framework that we are seeing developed by these key institutions. One thing we have seen a lot on the continent has been the idea that there is also huge democratic backsliding coming up from some countries. One response that we have seen from institutions like ECOWAS has been a lot of sanctions and threats to the use of force. As we talk about these frameworks and laws that we have in place, let us also look at the reactions that we have seen from key institutions.

I would like Joshua to speak on that. Joshua, thinking about how we have seen political bodies of regional organizations playing key roles and using sanctions and also really thinking that these countries are sovereign nations, though they have agreed and signed to many of these protocols, what would you say is the legality of the threats of use of force in response to these issues, and what other legal norms have been developed or principles that you see that have been violated in this regard? Joshua, please.

Joshua J. Niyo

Thank you. There is a sense in which we have institutions that are developing, both jurisprudence and also policy around the protection of democracy. When we look at it in the context of international criminal law, we have seen the draft law, the Malabo Protocol. The Malabo Protocol is a protocol that seeks to both engage in the protection of people's rights, and provide justice through criminal jurisdiction, for there to be accountability for international crimes like genocide. But of course, one thing we know about this particular protocol is the fact that it provides for the crime of the unconstitutional change of government, which is very probable. One of the things that you could say, is that this development could be critical in the African context, regarding normative building, particularly where it comes to not just speaking about unconstitutional change of government as a bad thing or as an undemocratic thing, but as something that could attract—normatively—criminal responsibility.

There are a lot of questions about the operationalization of such a provision, especially when it comes to how it interacts with other parts of this protocol. But I think in terms of norm-development, it is very interesting. If you look at it, it highlights some of the critical aspects, including the fact that any kind of push or pull against a democratically elected government would actually amount to international crime. There is also a very clear understanding within the context of what amounts to a democratically elected government.

The use of force has been an option that has been explored, particularly by ECOWAS. It has been a threat to use force for the most part and the big question is, is this a legal act that can be taken? Within the context of international law, we understand that there is a prohibition of the use of force under Article 2(4) of the UN Charter. We also have a very stringent category of exceptions or justifications; the UN Security Council authorization, or self-defense under Article 51, whether it is collective or individual self-defense. What we see, with ECOWAS, what it did, is invoke another form of capacity to use force in these states. That is through the idea of consent. Consent, we know broadly, is one of these circumstances under which force can be used in a particular state if it grants ad hoc consent to a party to use force.

But within the context of the ECOWAS system, we have the protocol, which, in a sense, allows ECOWAS to use force within states, and it is states that give some sort of anticipated invitation or anticipated consent for ECOWAS to use force within its context.

One of the circumstances for the use of force, with regard to our conversation, is in Article 25(b), which talks about situations where there is an attempt to overthrow the democratically elected government, as a circumstance where force could probably be used. There have been questions about whether this is legal. How do we fit this within the context of the prohibition of use of force much more broadly? We could have robust conversations on the idea of anticipated consent, what does that mean for governments that come subsequently in a country and are not necessarily interested in the use of force in their state. But for many of the states that we are looking at, what happens when the military junta itself decides to revoke consent in those situations?

I think there is a lot of consensus in different spaces that an anticipatory form of invitation or consent could be admitted, especially where states have ratified this, but within the context of understanding that this consent could actually be revoked. If we have situations where anticipated consent is revoked, then use of force will not be legal. But then the question arises, who can revoke that consent? Can the undemocratically elected government actually revoke that consent? Can a military junta revoke that consent? When you look at the circumstances of consent and revocation, once we narrow down the circumstances where this consent can be used and suggest situations where that consent cannot be revoked, particularly where there are undemocratic situations or changes of government; this could be a possible avenue that can be explored for the good of the state but—admittedly—with a lot of caution. Thank you.

Adaobi Egboka

Thank you so much for that review of looking at the Malabo Protocol and the UN Charter and all the sanctions and threats to use of force that we are seeing from ECOWAS.

I am trying hard not to dwell on that because we are having the sanctions going on in many countries now, and we also know the socioeconomic impact on many of the citizenry, which we are not going to go into in this panel. But that is an angle that has been looked at by many when we are talking about this whole reaction by regional institutions.

One thing that has come up positively—and I wanted to briefly dwell on that—is how the court has helped, because now when we talk about sanctions, we are reactional, but how the courts are developing new frameworks that we are seeing, what are the norms that we have seen from these institutions? I know a lot has come out, but I wanted to just focus on the Benin case. What was it about, and what came out of it, and how does that help us? Not just thinking about reaction, but thinking about preventing such.

Obiora Okafor

Yes, I am happy to keep talking about the Benin case. The Benin case, for me, illustrated something that is not new but has existed for quite a while. I want to bring in the role of civil society groups, because they are absolutely central. Civil society groups, I refer to them as activist forces in work I did as far back as early 2000s on this issue, have formed a virtual alliance with these courts on the continent, and not just courts, the African Commission, in the heydays of military rule in Nigeria, for instance, on human and people's rights, and so on, the ECOWAS court, now the African court, to expand the repertoire of resources available to them in order to pressure for democracy on the continent. They have themselves actively mobilized international law and these international judicial and quasi-judicial bodies in order to augment their ability to pressure.

They have expanded the terrain of conflict, not just around the institutions of their own societies, by internationalizing it, by judicializing it, and therefore have had impact. In my 2007 book on the African system and activist forces, I show how that yielded positive results, not just in Nigeria, but in post-apartheid South Africa as well. The Benin case is one more illustration, one step along that way, just another example of this kind—and there are many. There are many. People like James Gathii, Solomon Ebobrah, a lot of people have written about it. There are many instances all over the continent where activists have been able to deploy these courts and quasi-judicial bodies in order to increase the range of pressure and even the potency of the pressure.

It is important not to think of these institutions, these treaties, these courts, as simply automatic weapons that you can just deploy and it produces a set result, right? But it is important to think of them as among a pool of resources, many resources that are deployable and that are often deployed, and that often—not always—lead to appreciable and significant outcomes.

Adaobi Egboka

Interesting. Thinking about how these African institutions and civil society have pushed the courts to really get a lot on democracy and human rights in the continent, I wanted to also think about, as you respond to that, how have we seen the national courts develop this concept? Because I see a lot coming out of the national courts, looking at Kenya, what we see in Senegal, in Malawi, a lot of them. What are you seeing from that concept, Chris, please?

Christopher Fomunyoh

Sure. And thank you. My co-panelists have raised some very interesting issues, and I would say to Mr. Obi that the Benin case is one good example, and another case that comes to mind also, which was really an act of judicial bravery, was the trial of the former president of Chad, in Senegal, when criminal charges were brought against Hissène Habré for gross human rights violations when he was president of Chad. That was a precedent-setting case, because the continent had not had that kind of experience before, but it also came out of protracted negotiations about not surrendering African leaders to international jurisdictions.

On the one hand, you can look at the continent and say there are instances where judicial institutions within the continent have tried to exert their influence and have made rulings on critical legal matters, but we also should acknowledge that the political will that has allowed the African Union, for example, to set up the African Court on Human and Peoples’ Rights in Banjul or ECOWAS leadership that has led to the formation of the ECOWAS court, that that political will is not necessarily translated in compliance or implementation of court rulings or rulings by those jurisdictions.

For example, some of you may be aware of the fact that in Cameroon, there is an ongoing armed conflict that began in 2017. That is now seven years running. Thousands of lives have been lost. Hundreds of thousands of people are now internally displaced. Tens of thousands are refugees in Nigeria. But the African Court in Banjul, the Court on Human and People's Rights, had a ruling on Cameroon years before the conflict began, and in that ruling, it obliged the government of Cameroon to look into the political grievances of the Anglophone minority. But basically, the government of Cameroon ignored that ruling. Had it executed the ruling of the court in Banjul, we probably would not be where we are with the conflict in Cameroon.

We also know that a couple of times the ECOWAS court has ruled with regards to election laws from some countries, and those countries have basically ignored those rulings. So there is a dichotomy in that regard on the continent that we should also focus our attention to.

That said, the good news seems to be coming from national courts, because we saw in Malawi in 2019 that the court ruled one year after Peter Mutharika had been elected president in 2019, the court ruled in May of 2020, that the presidential election had been fraudulently called. It nullified that election and asked for new elections, which the country then proceeded to conduct and in which the true winner, the current president, won and was accepted by all of the people—or the majority of the people of Malawi. That was a very precedent-setting decision by the Supreme Court of Malawi.

Similarly, in Kenya, we saw just in 2020, after the elections between Uhuru Kenyatta and Raila Odinga, that the court also ruled that the elections had to be nullified and re-run within sixty days. That was also a precedent-setting decision by the Supreme Court of Kenya, which, of course, the election commission complied with, and a new presidential election was conducted.

In the last two months we have seen a lot of political independence and fortitude coming out of the Constitutional Court of Senegal, which was determined to make sure that the incumbent president respected the constitution and the electoral laws of the country. I would dare say that without the firm stance of the Constitutional Court of Senegal, which ruled that President Macky Sall could not postpone the presidential election, that even parliament did not have the powers to legislate and change the date of the transfer of power in Senegal. Without that independence and bravery from the Constitutional Court of Senegal, Senegal would have probably converged into an unprecedented crisis that probably would have led to the loss of life and a lot of violence.

We are beginning to see that national institutions, national judiciaries, are willing and eager and are showing the backbone to play their role as independent arbiters of the political space with regards to democratization. I think those national institutions deserve a lot of support and partnerships that can make sure that their voices are heard and their decisions are respected while waiting for the more regional and international institutions to be able to exercise jurisdiction over some of these matters. Thank you.

Adaobi Egboka

Thank you so very much for pointing out what is going on.

Joshua J. Niyo

Chris mentioned something really interesting about national courts, and to add to what he is saying, the national courts are a very interesting piece, because they can be instrumental in pushing the democratic agenda forward, as we have seen in Kenya with a bold position by the court. But right next to Kenya in Uganda, we have seen situations where the court has been used in a sense to entrench undemocratic principles. We have seen situations where the courts have not necessarily been bold to take a step.

For a number of years, the Supreme Court in Uganda has been taking the stance that in spite of malpractices, in spite of illegalities within an election process, they did not find substantial malpractice or substantial illegality to overturn the results. But of course, what that means, is it perpetrates a particular way of exercising or carrying out electoral practices. And, although such findings in the courts have been used within Uganda to push for electoral reforms, there has been—still—a need for a much bolder step with regards to the state from the courts.

Of course, there are a lot of issues around political stability, which usually these courts have in mind. They are aware that they could issue decisions that could have repercussions on the stability and security within a country. But as we saw in Nairobi (in Kenya), it is possible for such bold decisions to be taken and actually move the needle forward and that perhaps we need to have a much more bolder judicial branch within the continent that is able to push forward the democratic process, even in times where we have politically entrenched autocratic regimes.

Adaobi Egboka

You have raised a point I was going to quickly mention. We are having all of these positive outcomes come out from some countries, but we also know what we are seeing in places like Uganda, even in Nigeria recently, in terms of judicial pronouncements as it relates to elections. That brings me to the thoughts on compliance. You have raised a very vital point, Chris and Joshua, looking at what is the compliance pool. Christie, I will it turn over to you. These developments are coming from the regional courts and we are seeing a lot from the national courts. But another thing we are seeing heavily is compliance level. What is your take on this, and does the low compliance level matter in relation to precedent setting?

Christiana Essie Sagay

That is a very good question. Obi mentioned that it is not for want of norms or frameworks. We have the norms on the continent. We have the decisions of the courts. We also have heard from Joshua what is happening at the national level. When we put all of that together and start to think about what is happening on the continent, I tend to think about it in two ways. We are having this conversation. It shows that there is the push from the grassroots. There is the push from the top that these are very important issues and these are things that we are trying to get to where we want to get to.

But there is still a lot of work that has to do with compliance, and so when we think about that, broadly speaking, in terms of pace setting, then it becomes a question of how do we think about democratization on the continent in the next couple of decades? What are we seeing, and how do we create space for more democratic processes?

The protocol for the ACDEG talks—Article 8 specifically talks about really thinking about ethnic, cultural, religious diversity in democratic spaces. When we think about compliance in the future, I think that it is also important to think about the settings of the countries that are in Africa and conflict as well on the continent.

I am hopeful that in the coming years, Africa will be at a place where it is going to set a pace for other—not just countries in Africa, but internationally as well in terms of thinking about democracy. I will just stop there for now.

Adaobi Egboka

Thank you for that. I will say that even if we really think about it, compliance is always a problem, assessing and developing international legal norms in itself is very important. We think about the extent to which these contributions have been understood as international or specific to Africa and then really looking at what contributions that we are seeing.

Thank you, everyone.