Extra-constitutional changes of government in Africa
- Brian Kagoro and Bob Wekesa
Presidents and prime ministers in Africa refuse to hand over power after their constitutionally limited time in office ends.
Twenty changes in constitutions have occurred since 2003. Military coups, once thought a practice of the past, have come back in a big way. Unconstitutional and extra-constitutional changes of government are not straightforward phenomena. This is evident when the mix of internal and external factors is considered.
External drivers of unconstitutional changes of government
The first exogenous factor is that unconstitutional changes of government stem from the unfinished and uneven processes of state- and nation-formation. The seeds were sown during transitions from colonialism to independence, which coincided with the ideological proxy wars of the Cold War. Second, the exogenous and endogenous root causes of the problem are inseparable. Often, external factors and actors prey on and fuel internal conflict.
The third factor follows from the second. In many African countries, post-colonial state- and nation-building was framed as constitutionalism for self-preservation rather than as a matter of principled conviction. The constitutional political culture adopted by many autocratic leaders was often a defensive response to fears of externally induced regime change. Fourth, African countries engaged in competing geopolitical balancing acts. For instance, the Western bloc held a collective advantage over the Eastern bloc in African countries’ ideological orientations. Eastern bloc-leaning countries faced the specter of regime change from Western bloc powers more than the reverse.
The fifth issue also links exogenous and endogenous factors. A major development in the post-Cold War era was the establishment of the International Criminal Court (ICC), designed as an international mechanism for addressing intra-state human rights abuses, with the Global South generally, and Africa specifically, often perceived as the principal sites of abuse.
Intra-African legal and institutional responses
Concerned about the fate of their peers, African leaders and states responded through a 2009 African Union decision not to cooperate with the ICC in several cases. They instead advanced the Malabo Protocol, which reconfigured the African Court of Human and Peoples’ Rights with three forms of jurisdiction: human rights, general affairs, and international crimes.
The acts of unconstitutional change of government enacted in the Malabo Protocol are saddled with conceptualization problems. Three analytical levels can help move debates towards a better understanding and ameliorative action.
First, it may seem like an oxymoron to talk of “unconstitutional constitutional amendments” until one considers several incipient developments from nations across the continent. Basically, countries are forcing changes to constitutions under the cover of constitutionality
Second, the right to revolution, rebellion, and protest versus the proclivity for regimes to preserve longevity in power is a major paradox. Several constitutions, including African ones, recognise forms of resistance to unconstitutional, oppressive, or anti-democratic rule. Yet these rights are wantonly abused.
Third, many countries invoke the principle of non-interference in the domestic affairs of sovereign states to oppose external intervention. On the other hand, external actors often cite the principle of responsibility to act or protect the citizens of a beleaguered state as justification enough for foreign intervention.
Fourth is elected authoritarianism and executive capture. The notion of a “democratically elected government” is often contested, particularly where state institutions have been repurposed to give anti-democratic rule an electorally backed veneer of legitimacy. Fifth, the current legal approach remains conceptually and operationally incomplete. Aspects of the Malabo Protocol seek to prohibit coups, mercenary intervention, dissidence, rebellion, incumbents’ refusal to relinquish power, failure to transfer power after elections, and legal-political manipulation. Yet the provision addresses mainly the procedural forms of unconstitutional change of government, rather than the deeper conditions that generate it.
Toward a coherent regional governance architecture
Three priorities are required. First, the AU governance architecture as an empowered mechanism capable of meaningful preventive diplomacy and early crisis response before governance crises become security crises. Second, the integration of AU shared values into a single protocol or legal instrument with consistent and harmonised definitions and procedures. Third, the reconsideration of subsidiarity and complementarity doctrines in light of the Malabo Protocol and the need to eliminate inconsistencies in how the AU addresses violations of the Constitutive Act and its shared values agenda.
Brian Kagoro is the Managing Director, Programs, Open Society Foundations, and Bob Wekesa is the Director of the African Centre for the Study of the United States, University of the Witwatersrand.