The Lomé Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government

Between 1956 and 2001, sub-Saharan Africa experienced 80 successful and 108 failed coups d'état, with 30 states experiencing at least one successful coup during this period.Footnote ³ The Lomé DeclarationFootnote ⁴ was prompted by the desire of African leaders to find a response to the scourge of coups that marked the history of post-colonial Africa. Because military coups are not the only type of unconstitutional accession to power, the AU tried to expand its definition of norm violating behaviour requiring its attention, introducing the concept of unconstitutional change of government. However, as shown in this article, AU practice remains strongly focused on coups and the AU struggles with the exact scope of what constitutes an unacceptable transfer of power.

The Lomé Declaration puts forward a set of common values and principles for democratic governance. These include the adoption of and respect for a democratic constitution, separation of powers, political pluralism, protection of human rights and the organization of free and regular elections. While the declaration states that non-adherence to those common values and principles often causes a political and institutional crisis which then culminates in an unconstitutional change of government, the latter concept does not include all violations of those same values and principles. The Lomé Declaration limits the notion of an unconstitutional change of government to four types of situation: (i) a military coup d'état against a democratically elected government; (ii) an intervention by mercenaries to replace a democratically elected government; (iii) the replacement of a democratically elected government by armed dissident groups and rebel movements; and (iv) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections.Footnote ⁵

In the event of an unconstitutional change of government occurring in a member state, the Lomé Declaration requires the OAU to condemn that change and to urge for a speedy return to constitutional order.Footnote ⁶ A period of up to six months should be given to the perpetrators to restore constitutional order. During this period, the government concerned should be suspended from participating in the policy organs of the OAU. After the six month period, a range of limited and targeted sanctions should be imposed against a regime that refuses to restore constitutional order, including visa denials, trade restrictions and restrictions of intergovernmental contacts.Footnote ⁷ The Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution, later replaced by the PSC, was charged with implementing the Lomé Declaration.

The AU Constitutive Act

While maintaining the principle of “non-interference by any member state in the internal affairs of another”Footnote ⁸ as a cornerstone of the functioning of the AU, the Constitutive Act of the AU (the Constitutive Act) combines this “tradition” of non-interference as a foundation for relations between equal and sovereign states with the “novelty” of non-indifference of the AU.Footnote ⁹ As one of the guiding principles for the functioning of the AU, the Constitutive Act puts forward “respect for democratic principles, human rights, the rule of law and good governance”.Footnote ¹⁰ Reflecting this policy of non-indifference, the act stipulates that the functioning of the AU shall be guided by the principle of “the condemnation and rejection of unconstitutional changes of government”.Footnote ¹¹ Without an explicit limitation to the four types of unconstitutional changes mentioned in the Lomé Declaration, article 30 (suspension) of the Constitutive Act declares that governments coming to power through unconstitutional means shall not be allowed to participate in the activities of the AU.

The Optional Protocol of 9 July 2002 Relating to the Establishment of the Peace and Security Council of the AU (Optional Protocol)

The PSC was established in March 2004. It is the “standing decision-making organ for the prevention, management and resolution of conflict” and the “collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa”.Footnote ¹² The Optional Protocol puts forward respect for constitutional governance as one of the guiding principles for the election of PSC members. Under the protocol, the PSC, in conjunction with the chair of the AU Commission, shall “institute sanctions whenever an unconstitutional change of Government takes place in a Member State, as provided for in the Lomé Declaration”.Footnote ¹³

While the Lomé Declaration in itself of course remains a source of no more than “soft” law, this provision, given the binding legal nature of PSC decisions, clearly enhances its potential impact (including through the use of sanctions) on the states parties to the Optional Protocol. Before the Charter entered into force, the Lomé Declaration continued to be referred to as the main normative basis for AU policy vis à vis unconstitutional changes of government. This continues to apply to member states that have not yet ratified the Charter.

The African Charter on Democracy, Elections and Governance

The Charter was adopted as a legally binding instrument at the eighth ordinary session of the AU Assembly of Heads of State and Government (the AU Assembly) in Addis Ababa on 30 January 2007. It entered into force on 15 February 2012, 30 days after the requisite 15 states had deposited their instruments of ratification with the chair of the AU Commission.Footnote ¹⁴ Compared with the Lomé Declaration, the Charter is more ambitious in imposing standards about how political power is to be exercised (and not only about how political power is transferred). Also, the Charter expands the definition of an unconstitutional change of government as well as the range of sanctions that may apply to states as well as to individuals.

AU Assembly decision 269(XIV) of 2 February 2010

Alarmed by the resurgence of (attempted) coups d'état in Africa in 2008, the AU Assembly adopted a decisionFootnote ³³ in February 2009 to support the activities undertaken by the PSC in view of an immediate return to constitutional order in the countries affected by a coup. The AU Assembly also urged member states to ratify the Charter. On 2 February 2010, the AU Assembly adopted a decisionFootnote ³⁴ which clearly finds inspiration in the Charter in order to enhance the effectiveness of the AU response. In particular, it includes sanctions put forward in article 25(1), (4), (6) and 7 of the Charter. In addition, this decision adds an important diplomatic sanction, stating that “Member States should, upon the occurrence of an unconstitutional change of Government, not recognize the de facto authorities” and calling on all non-African international bodies including the United Nations “to refrain from granting accreditation to such authorities”.Footnote ³⁵

A return to the constitutional status quo ante

In some situations, the requested return to constitutional order amounts to a return to the status quo ante [the re-establishment of the constitutional order as it existed before the unconstitutional change of government], which is a classical remedy for internationally wrongful behaviour. This remedial policy is adopted in situations in which the PSC calls for the reinstatement of the ousted authorities or for the application of the constitutional rules on succession of power.

In the case of the CAR, the AU demanded the reinstatement of the democratically elected government. With Togo, the PSC requested a return to constitutional legality through the resignation of Faure Gnassingbe and compliance with the provisions of the Togolese Constitution regarding the succession of power. In the case of São Tomé and Principe, the PSC welcomed the return of the elected president. With Madagascar, the PSC demanded that all parties comply with the constitutional provisions on interim arrangements in the event of the president's resignation. Regarding Guinea, the PSC initially called for the constitutional provisions relating to the succession of the head of state to be respected, but later amended its position (as explained below). In the case of Niger, following the coup of 18 February 2010, the PSC requested the restoration of constitutional order in the country as it existed before the referendum of 4 August 2009.Footnote ³⁸ With Mauritania (2008), the PSC demanded the unconditional restoration of the elected president.Footnote ³⁹

Elections, possibly preceded by temporary power-sharing, as a return to constitutional order

In other situations, the requested return to constitutional order amounts to the de facto authorities being replaced by a new, constitutionally established regime. The AU actively supports and legitimizes such an outcome insofar as it is done through a process of free and fair elections. This alternative remedial policy is particularly relevant when a return to the constitutional status quo ante has become legally or practically impossible, for instance in the case of a constitutional vacuum due to the assassination of the president and his constitutional interim successors. Depending on the particular situation, presidential and/or legislative elections have been put forward as the necessary – but, insofar as they are free and fair, also sufficient – condition for the “re-constitutionalization” of the political order, therefore also resulting in the lifting of AU sanctions. In theory, and in accordance with the time-frame put forward in the Lomé Declaration, the PSC calls for the return to constitutional order through the holding of elections within a period of up to six months. In several cases, however, the PSC has expressed support for the organization of electoral processes after the six month deadline, recognizing that the review of electoral legislation or the establishment of independent electoral commissions and other aspects of the organization of elections may inevitably require more time.

In the case of Mauritania (2005), the PSC dispatched a ministerial delegation to discuss the “modalities for a speedy restoration of constitutional order in the country”.Footnote ⁴⁰ In the months following the coup, the PSC noted with satisfaction the commitments made and the steps taken “towards the swift restoration of constitutional order by a process which will culminate in the holding of free, fair and transparent elections”.Footnote ⁴¹ In Niger, where a return to the constitutional status quo ante had become legally impossible (given the unconstitutional rule by the ousted president), the PSC called for a transitional period not exceeding six months and ending with elections, leaving it to the de facto authorities to decide on the modalities of Niger's return to constitutional order. Revising its initial position on the situation of Guinea in light of the political reality on the ground, the PSC called for a rapid return to constitutional order, expressing its support for a temporary power-sharing arrangement, to be followed by legislative and presidential elections.

In some situations, the newly elected, constitutional regime has been made up of the de facto authorities born out of the coup d'état “legitimating” and “legalizing” themselves through elections. Faced with severe criticism of these situations of “democratically legitimated” electoral coups, the AU refined its policy. Even before the Charter entered into force, and with reference to the AU Assembly decision of 2 February 2010, the PSC recently rejected the participation of perpetrators of unconstitutional changes of government in elections held to restore constitutional order.

In the cases of CAR, Togo and Mauritania (2008), the PSC expressed satisfaction at the holding of elections and lifted AU sanctions, despite the fact that the elections paved the way for the de facto authorities (led by François Bozize, Faure Gnassingbe and Abdel Aziz respectively) to remain in power. More recently, regarding Niger, the PSC welcomed elections but excluded the participation of the authors of the unconstitutional change of government in the elections scheduled at the end of the period of transition. In the case of Guinea, the PSC repeatedly welcomed the announcement of elections as the decisive step towards the restoration of constitutional order, satisfied that those responsible for the unconstitutional change of government had agreed not to participate in the elections.

In some situations, the AU has actively supported the establishment of temporary transitional governments though interim political power-sharing arrangements, pending the holding of new elections. In the case of Mauritania (2008), the AU welcomed the signature of the Dakar Framework Agreement of June 2009, the establishment of the transitional government of national unity on that basis (including the participation of the movement responsible for the unconstitutional change of government), and the announcement of presidential elections. As a result, both the suspension measure against Mauritania and the sanctions imposed on individuals were lifted. In Madagascar, the AU actively supported negotiations that led to the Maputo Agreements of 8 and 9 August 2009 and the Addis Ababa Additional Act of 6 November 2009, which provided for the establishment of a transitional consensus government of national unity (including the participation of the movement responsible for the unconstitutional change of government), and the announcement of general elections. In the case of Guinea, the AU welcomed the Ouagadougou Joint Declaration of January 2010, which led to the establishment of a government of national unity, as an interim arrangement leading to presidential elections held in December 2010.

Types of situations in which the AU supports power-sharing agreements

First, power-sharing agreements are sometimes resorted to as a temporary arrangement in the aftermath of an unconstitutional change of government. Here, power-sharing is advocated as an interim measure to enable a return to constitutional order through elections.

Secondly, and more frequently, power-sharing is a component of internationally mediated peace accords, which have become the dominant mode of ending internal armed conflicts. Power-sharing agreements, in this case, essentially amount to compromises which reflect the prevailing balance of (bargaining) power between the negotiating parties and which address their concerns and serve their interests. These power-sharing agreements generally include provisions on the exercise of political authority in one or more of four dimensions: political, economic, security and territorial power-sharing.Footnote ⁴² These dimensions are a backbone of all constitutional orders and it therefore comes as no surprise that power-sharing agreements may be at odds with the prevailing constitutional order.

Thirdly, “crisis” power-sharing agreements have been used in the context of post-electoral violence. Two well-known cases are the situations of Kenya and Zimbabwe (both in 2008) where, in the wake of “collapsed” electoral processes, a power-sharing agreement was resorted to in order to prevent a further escalation of political violence. It would be erroneous, however, to assume that this has now developed into a new norm. In the case of Côte d'Ivoire (2010), with two self-declared winners of the presidential elections, the theoretical option of negotiating a power-sharing deal was in reality never (at least publicly) put forward as a solution. Looking back at the experience in Kenya and Zimbabwe, the AU Commissioner for Political Affairs noted in September 2009 that a response to violent contestations of the outcome of electoral processes through power-sharing is problematic:

In its 2010 report on election related disputes and political violence, the AU Panel of the Wise equally observed that the use of post-electoral crisis power-sharing arrangements, if not well managed, “may spiral out of control and become a political tool, abused for purposes of manipulating the democratic process and annulling the people's vote”.Footnote ⁴⁴

Types of power-sharing

Power-sharing arrangements can, so far as their objectives are concerned, be divided into two categories. First, as referred to above, power-sharing is mostly advocated as a short term, peace and security-oriented, “cake-sharing” arrangement. Its mere objective is to bring an end to hostilities by offering the carrot of political, economic, military and / or territorial power to elites. Secondly, power-sharing has been used as a longer term strategy of promoting representative and inclusive governance in deeply divided, in particular ethnically segmented, societies. While recognizing the difficulties of transplanting power-sharing mechanisms from well-established democracies to societies that are negotiating their exit from internal armed conflict, proponents have recommended the use of consociational and other accommodating power-sharing as a tool for post-conflict state (re-)construction, including regarding constitutional design.Footnote ⁴⁵ The objectives are not mutually exclusive and peace accords may contain power-sharing agreements that are inspired by both. This is particularly relevant when the segmental cleavages in society are also reflected in the leadership of the armed opponents and when the armed struggle is, at least partly, motivated by collective grievances of one or more of the societal segments. In the case of Burundi, for instance, successive peace agreements have included both types of power-sharing.

Power-sharing and the constitutional order

Power-sharing agreements are not necessarily incompatible with the existing constitutional order. It may well be possible to attribute positions in the political, military or economic sphere in a way that is fully compatible with the constitutional order. In particular, this is the case when the power-sharing agreement does not involve the most senior positions.

In the 2006 power-sharing agreement between the government of Burundi and the rebel movement Palipehutu-National Forces of Liberation (FNL), a total of 33 posts (at the level of embassies, state owned enterprises, ministerial advisers, etc) were granted to the FNL in return for the latter's agreement to lay down arms. The agreement accorded fully with the constitution.

Generally much more problematic are situations in which strong executive power is shared. Particularly in Africa's strongly presidential systems, in which executive power is largely concentrated in the hands of the presidency, political power-sharing (mostly through the creation of positions of vice-president or prime minister with autonomous executive power) is difficult to organize without violating or amending the constitution. In practice, most power-sharing agreements are therefore clearly incompatible with the constitutional order. Most power-sharing agreements, whether or not part of a larger peace agreement, clearly reflect the “constitution-making” intentions of the parties. The “contract” signed between the parties often awards itself a quasi-constitutional status for the shorter term, includes a new and longer term constitutional blueprint and includes wording to ensure the incorporation of the power-sharing arrangement in the existing legal and constitutional order. In some situations, the text of the power-sharing agreement does not deal with its own legal status and simply fails to address its compatibility with the prevailing constitution.

In the case of Guinea, the Ouagadougou Joint Declaration of 2010 was signed by leading members of both the National Council for Democracy and Development (CNDD), the movement responsible for the coup d'état, and the international mediator. They agreed to establish a National Council of Transition composed of 101 members representing all sectors of society. The agreement confirmed the interim de facto presidency of Konate (CNDD) and provided for the appointment of a prime minister from the Forum des Forces Vives du Guinée opposition movement as the head of a government of national unity. The PSC repeatedly welcomed the Ouagadougou Joint Declaration which, undoubtedly, violated the constitution, but which was seen as a necessary interim agreement prior to the organization of elections.

Similarly, the N'Djamena August 2007 power-sharing agreement in Chad clearly violated the constitution on several points, for instance by extending indefinitely (“until the time of election of a new national assembly”) the legislature which, under the prevailing constitution, ended in 2007. While no explicit wording was included regarding its own legal or constitutional status, the agreement also stipulated that no laws adopted as a result of the power-sharing agreement could possibly be amended in a way that derailed them from their original objectives as put forward by the agreement.

In other situations, this incompatibility is explicitly acknowledged, but provisions are included which either rule out the possibility of challenging the constitutionality of the power-sharing agreement or award it supra-constitutional status.

Article 35 of the Comprehensive Peace Agreement for LiberiaFootnote ⁴⁶ stipulates:

Also, by suspending the Supreme Court, the agreement ruled out the possibility of Liberians challenging its constitutionality. In the case of Madagascar, the 2009 Maputo Charter of the Transition (Maputo Charter),Footnote ⁵⁰ in addition to announcing that a new Constitutional order would be designed,Footnote ⁵¹ stipulated that the charter constituted the constitutional law of the transitionFootnote ⁵² and that all constitutional and legislative provisions that were not contrary to the charter remained in force,Footnote ⁵³ clearly granting it supra-constitutional status. The PSC repeatedly expressed its support for the power-sharing agreement, urging the de facto authorities borne out of the unconstitutional change of government formally to accept the Maputo Charter and the Addis Ababa Additional Act of 6 November 2009 and “to revoke any domestic legal instrument which contains contrary stipulations”.Footnote ⁵⁴

In the case of Burundi, the 2000 Arusha Peace and Reconciliation Agreement (the Arusha Agreement) provides for the establishment of transitional, power-sharing institutions for a period of up to three years, stipulating:

Furthermore, the Arusha Agreement stipulates that, by its signature, “the National Assembly agrees, within four weeks, to (a) adopt the present protocol as the supreme law without any amendments to the substance of the Agreement”.Footnote ⁵⁶ It was also agreed that a new constitution would be drafted during the period of transition and in conformity with the principles (including the consociational power-sharing rules) set forth in the Arusha Agreement. The Constitutional Court was charged with verifying the conformity of the post-transition constitution with the constitutional framework put forward by the Arusha Agreement. Although, in practice, this did not occur,Footnote ⁵⁷ it clearly indicates the intention of the signatory parties to award supra-constitutional status to the agreement. The power-sharing provisions in the 2003 peace agreement between the transitional government, established in accordance with the Arusha Agreement, and the CNDD-FDD rebel movement, also award themselves supra-constitutional status, stating that “any constitutional, legislative or regulatory provisions which are inconsistent with this Agreement shall be amended as soon as possible in order to bring them into line with this Agreement”.Footnote ⁵⁸

In some situations, constitutional “emergency” amendments or arrangements are called upon in order to keep up the appearance of constitutional continuity and conformity of the power-sharing agreement with the constitution. In Kenya, highly creative use was made of a (retroactive) “transitional constitution” arrangement. A power-sharing “Agreement on the principle of partnership of the coalition government” was signed on 28 February 2008, with a draft “National Accord and Reconciliation Act” as an integral part to it. The latter act was adopted in Parliament on 6 March 2008. The power-sharing agreement and the act provided for the creation of the position of a prime minister as head of the grand coalition government. The autonomous executive power granted (at the request of one of the negotiating parties) to the prime minister was clearly contrary to the prevailing constitution. The agreement stipulated that the act be entrenched in the constitution. The act stipulated that it would cease to apply upon dissolution of the tenth Parliament, if the coalition government was dissolved or a new constitution enacted. There was a clear intention to give quasi-constitutional status to the act. The act also stated that Parliament would convene at the earliest opportunity to enact these agreements, in the form of an act of Parliament and the necessary amendment to the constitution. Upon entry into force, on 17 April 2008, opposition leader Odinga took office as prime minister. At the same moment, a Constitution of Kenya Amendment Act and a Constitution of Kenya Review Act were adopted, in order to facilitate a comprehensive review of the constitution. A constitutional review committee was established, which submitted a draft constitution in November 2009. A new constitution was approved by referendum in 2010 (the 2010 Constitution), which, quite interestingly, no longer provides for the position of a prime minister. However, as part of its transitional arrangement, the 2010 Constitution itself stipulates that some of its provisions (including on the executive) will not apply, and that the power-sharing agreement and the National Accord and Reconciliation Act will continue to apply until the 2012 elections (which retroactively confirmed their quasi-constitutional or “transitional constitutional” status).

In the case of Sierra Leone, the power-sharing agreement did not elaborate on its constitutionality, but contained provisions to ensure that possible incompatibilities between the agreement and the existing constitution or other legislation were removed retroactively.

The 25 May 1999 Lomé Agreement for Sierra Leone stipulated:

In Zimbabwe, the need to ensure conformity with the constitution through a constitutional amendment was explicitly recognized and an “urgency amendment” of the constitution was adopted when the power-sharing agreement entered into force. Article XX of the 2008 power-sharing agreement laid down the “[f]ramework for a New Government” and stipulated that the executive authority of the power-sharing government was to be vested in and shared among the president, prime minister and Cabinet. Further provisions, clearly contrary to the prevailing constitution, detailed the powers of these institutions. In accordance with article 20.1.6 of the power-sharing agreement, opposition leader Tsvangirai was sworn in as prime minister on 11 February 2009. Parliament adopted the Constitutional Amendment Act No 19 on the same day. This amendment was adopted in accordance with article XXIV (“interim constitutional amendments”) of the power-sharing agreement which provided: “[t]he constitutional amendments which are necessary for the implementation of this agreement shall be passed by Parliament and assented to by the president as the Constitution of Zimbabwe Amendment Act No 19. The Parties undertake to unconditionally support the enactment of the said Constitution of Zimbabwe Amendment No 19.” In addition to this “urgency amendment” of the constitution, article VI of the power-sharing agreement provided for a longer term constitutional review process.

In Côte d'Ivoire (2002), use was made of a “state of emergency” clause in the constitution itself to allow for the implementation of a power-sharing agreement provision which otherwise, ie without application of that clause, would have been unconstitutional. In order to implement a power-sharing agreement provision on the eligibility of presidential candidates, stating that it should suffice if the candidate is born of a father or (instead of and) a mother born Ivorian (which was contrary to the strict Ivoireté citizenship requirement laid down in article 35 of the constitution), incumbent President Gbagbo, under strong international pressure and despite his personal reluctance to do so (see below), used his powers under article 48 of the constitution. This “state of emergency” clause grants exceptional powers to the president to adopt measures needed to save the integrity of the country. On this basis, a presidential decree of 5 May 2005 was adopted to implement part of the power-sharing agreement, stipulating that, exceptionally and for the sole purpose of the presidential election of October 2005, candidates presented by the political party signatories to the Linas-Marcoussis Power-Sharing AgreementFootnote ⁶⁰ were automatically eligible (contrary to other candidates who had to meet the constitutional requirement under article 35). This decision also prevented the Constitutional Council from verifying the eligibility of presidential candidates presented by the parties to the Linas-Marcoussis Agreement.Footnote ⁶¹

The case of Côte d'Ivoire also illustrates how the requirement for a power-sharing agreement to conform to the constitution lends itself to selective, political use when this serves the interest of one of the negotiating or signatory parties.

When the AU and the wider international community called for the implementation of the power-sharing agreement and, more specifically, the amendment of article 35 of the constitution, incumbent president Gbagbo argued that this required a two thirds majority in Parliament (in accordance with article 126 of the constitution) and that the amendment also needed to be passed by a referendum. He argued that, in line with article 127 (ruling out the possibility of a constitutional amendment when the integrity of the territory is under threat), this was not possible until rebel forces were disarmed. This resulted in stalemate. In the end, the compromise was found through the use of article 48 of the constitution.

The AU, power-sharing and constitutionalism: Some interim conclusions

This brief analysis of recent power-sharing agreement practice reveals, first of all, that most power-sharing agreements do not accord with the prevailing constitutional order, in which case the agreements are generally given supra-constitutional status. Secondly, power-sharing agreements often contain constitutional blueprints and/or give rise to far-reaching constitutional reform processes. Thirdly, creative strategies are used to harmonize power-sharing agreements with the requirements of constitutional continuity or, at the very least, to keep up appearances of constitutional continuity. At the same time, this concern for constitutional continuity offers an argument that can be strategically used by some of the negotiating parties when it serves their interests. In conclusion, with the active support of the AU, power-sharing agreements are used in order to re-design both the short term and the long term constitutional order in a way that is felt politically desirable by the negotiating parties (which essentially reflects their bargaining power around the negotiating table).

In most of the situations in which power-sharing deals have been negotiated, the agenda of the AU and other intergovernmental institutions is not, or rather is not primarily, driven by a concern for constitutional rigour (which, in the particular situation, may no longer be practically feasible anyway). Peace and security, short term stability as well as the need to limit human suffering appear to be overriding concerns. As a result, there is an undeniable tension between, on the one hand, AU support for power-sharing agreements and, on the other, the provision that “[g]overnments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union”,Footnote ⁶² as well as, more generally, the AU's adherence to the value of constitutional rule. This raises the question whether, for the AU, a return to constitutional rule after a coup, an armed conflict or failed elections must meet certain substantive criteria of legitimacy and accountability of governance.

Free and fair elections

In several respects, elections conducted in accordance with democratic standards of freedom and fairness are a legitimizing factor that shapes AU policy on constitutional rule. First, the definition of an unconstitutional change of government refers to activities undertaken against democratically elected governments and to incumbents refusing to relinquish power after free, fair and regular elections. Secondly, in the three types of situations referred to above, the AU welcomes “founding” free and fair elections held after a period of power-sharing as the starting point for a new constitutional order. The Charter adds further weight to the importance of elections as an element in AU policy on constitutional rule. Chapter 7 of the Charter deals with democratic elections and pays particular attention to advisory services offered by the AU Commission as well as to the deployment of electoral observer missions.

From a normative perspective, the case could be made that AU policy should more clearly reflect the fact that incumbent regimes are particularly good at consolidating their power, including through seemingly free and fair elections (and that the AU should therefore develop or refine its standards accordingly). One might also argue that incumbents remaining in office after fraudulent elections should be treated similarly to those responsible for an unconstitutional change of government as defined by the Charter. Furthermore, while some literature confirms the “self-reinforcing” power of elections as an instrument to promote a politically more liberal and competitive regime, it has become clear that elections are cleverly used by incumbent regimes to consolidate and “autocratize” their rule, while keeping up democratic appearances and organizing multi-party elections.Footnote ⁶⁴ The case could also be made that, insofar as the AU wishes to promote alternation of powers as an indicator for democratization, it may insist on inserting presidential term limits in the new constitution. A draft of the Charter, prepared for the meeting of AU foreign affairs ministers in June 2006, referred to the need to prevent the manipulation of constitutions and legal instruments to prolong an incumbent regime's tenure of office. No such provision was included in the final version.

Accountability for past abuses

To what extent is accountability of those individuals responsible for the events leading to a violation of the constitutional order an element in the AU policy of legitimizing a return to constitutional rule? First, this question relates to vetting individuals from senior political office. Contrary to the Lomé Declaration, which remains silent on this issue, but in line with the Charter and the AU Assembly decision of February 2010, the PSC increasingly systematically requires that those responsible for an unconstitutional change of government do not participate in elections that should put the country back on track towards constitutional order. From the PSC decisions, it is not entirely clear what motivates this new policy. It might be inspired by reasons of legality: coups generally being contrary to domestic criminal law, those responsible must be banned from participating. This explanation is however contradicted by the fact that the PSC is generally supportive of amnesty legislation for coup plotters being included in a power-sharing agreement. A second possible, and more convincing, argument relates to the fact that, without excluding those individually responsible, the elections (and the AU support for them) end up legitimizing the de facto but illegal authorities who, because of their control over state resources, stand a good chance of winning the elections. Indeed, the AU was criticized for legitimizing an “electoral coup” in the cases of CAR, Togo and Mauritania (2008). From a normative perspective, it should be noted that vetting from political office obviously leaves open the possibility of a “real” commander hiding behind the back of the so-called coup leader. Also, vetting a leader from taking part in elections, may not prevent this person from taking a powerful position in the security forces.

Remarkably, AU policy is radically different in situations that, so far, have not been classified as unconstitutional changes of government by the PSC but in which power-sharing agreements are concluded that very often are contrary to the constitution. In such situations, the transformation of rebel movements into political parties and the participation of their leaders in elections is strongly encouraged. Levitt rejects “the ludicrous assumption” inherent in power-sharing practice “that warlords and rebels are intent on becoming practicing [sic] democrats”.Footnote ⁶⁵ The contradiction is indeed striking. As a result, the PSC inevitably sends the message to potential rebels that political violence, not through a coup but through armed conflict and a negotiated settlement, is an accepted way of acceding to political power. This can lead to the remarkable situation (as in Chad and Burundi 2000) in which those responsible for a successful coup cannot participate in elections, whereas those responsible for a failed coup attempt, starting a civil war and negotiating a power-sharing deal are actively encouraged to participate.

There are at least two possible explanations for this apparent contradiction. First, the AU position may reflect its policy of sanctioning those responsible for reversing a democratic order, but not necessarily rejecting the possibility of insurgents waging war against non-elected authoritarian regimes. If correct, this explanation should require the AU to differentiate its policy depending on the kind of regime against which the insurgents wage war. Secondly, and more likely, in supporting power-sharing (and subsequent elections) with armed insurgents, the AU may well be inspired by a short-term peace and security agenda rather than by longer term objectives of state building and constitutionalism.

Does the AU require accountability, possibly through criminal prosecution, of those responsible for criminal offences under national law (insurrection, endangering the security of the state, etc) or acts amounting to crimes under international law (war crimes, crimes against humanity, torture)? In several power-sharing agreements (as in Mauritania in 2009) some kind of amnesty is included and therefore at least indirectly encouraged by the AU. From a normative perspective, the case could be made for AU guidelines, possibly along the lines of the UN mediation policy on this issue,Footnote ⁶⁶ preventing the PSC from endorsing an amnesty for crimes under international law as part of a power-sharing agreement.

What prospects does the Charter offer on this point? As noted above, a vetting provision is included stipulating that “[t]he perpetrators of unconstitutional change of government shall not be allowed to participate in elections held to restore the democratic order or hold any position of responsibility in political institutions of their State”.Footnote ⁶⁷ Paragraph 9 also includes an “extradite or prosecute” provision for perpetrators of unconstitutional changes of government.Footnote ⁶⁸ No provisions are included in the Charter regarding accountability for human rights crimes under international law committed in the context of coups or other unconstitutional processes of acceding to power.

Popular ownership and responses to conflict-related collective grievances

What does the AU require concerning the social foundations of the new constitution, procedurally (in terms of participation in the constitution-making process) or substantively (should, for instance, the new constitution address the root causes of identity-based armed conflict in ethnically divided societies)?

In its recent practice, the PSC has expressed satisfaction at the fact that a referendum was held when a new constitution was adopted (such as in Kenya) or that power-sharing negotiations were not merely a matter of opaque elite deals but imply broader society representation (such as the process of national dialogue in Mauritania). However the AU does not seem to apply a more systematic policy on inclusiveness, participation and transparency of constitution-making processes. Article 10 of the Charter stipulates that “State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.” It will be hard to reconcile this provision with the kind of “emergency” constitutional amendments to which power-sharing agreements have given rise in recent practice. Also, in particular in ethnically divided societies, a referendum may have potentially divisive effects and should therefore be handled with great care during a constitution-making process.

Substantively, the case could be made that, in legitimizing a new constitution, the AU should require that underlying societal grievances that gave rise to the coup, contested elections or internal armed conflict must be addressed in the new constitutional order (and, as a result, in the electoral legislation). The AU Panel of the Wise noted in July 2010 that:

This could be read as encouraging African ethnically segmented societies to introduce consociational or other accommodating power-sharing elements in their constitutional design.

More generally, there seems to be a clear need for the AU to adopt a more norms based (in fact Charter based) approach as part of its mediation policy in order to restructure its remedial policy around a return (or transformation) to a democratic constitutional order.