Academic journal article
By Omorogbe, Eki Yemisi
Vanderbilt Journal of Transnational Law , Vol. 44, No. 1
This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even when the regime had popular and political support within the state. The Article concludes by arguing that the AU should pursue a more nuanced policy in this area.
TABLE OF CONTENTS I. INTRODUCTION II. INSTRUMENTS AND POLICIES ON UNCONSTITUTIONAL CHANGE A. The OAU Period (1963-2003) B. The Current African Union Treaties 1. Organs and Powers 2. Unconstitutional Change: Definitions and Responses C. The African Charter on Democracy, Elections and Good Governance (2007) III. THE AFRICAN UNION PRACTICE ON COUPS D'ETAT 1. Togo (2005) 2. Mauritania (2005 and 2008) 3. Guinea (2008) 4. Madagascar (2009) 5. Niger (2010) IV. CONCLUSION
From the end of the 1980s, Africa's one-party states and other authoritarian regimes faced internal and external pressure to conform to liberal democratic norms. (1) As a result, many states adopted multiparty political systems and introduced constitutional provisions for periodic elections and presidential term limits. (2) However, the democratic transitions were often an illusion. The elections were not free and fair, and many incumbents remained in office. (3) Consequently, the degree of democracy among African states continues to vary considerably, with authoritarian regimes at one extreme, functional multiparty systems at the other, and many forms of imperfect democracy in the middle. In 2009, the Freedom House Report described eight African states as fully democratic, twenty-five states as partially democratic, and twenty-one states as authoritarian. (4) The Organization for African Unity (the OAU), founded in 1963, and its successor, the African Union (the AU), which came into operation in 2003, have had the potential to influence the form of state governments in Africa. In practice, however, the OAU and the AU, endorsing the sovereign right of their member states to determine their own political systems, have generally tolerated governments that are undemocratic or imperfectly democratic. (5) The one exception, which has emerged since 1997, concerns unconstitutional changes of government by coup d'etat. Despite the argument that acting against coups violates the principle of noninterference in a state's internal affairs, the OAU and the AU have opposed coups in the belief that they threaten public order and economic development. (6) Part II of this Article traces the evolution of OAU and AU instruments and policies concerning unconstitutional change. It shows that the AU's understanding of the circumstances in which sanctions and intervention against coups are justified has progressed beyond that of the OAU. Part III discusses AU practice in relation to successful coups since the formation of the AU Peace and Security Council (PSC) in 2004. It demonstrates that the AU has consistently refused to recognize governments that come to power through coups even when those governments have popular and political support within the state in question. The Article concludes by arguing that the AU should pursue a more nuanced policy in this area.
II. INSTRUMENTS AND POLICIES ON UNCONSTITUTIONAL CHANGE
This Part considers the definitions of unconstitutional change in OAU and AU instruments and the response mechanisms that those instruments provide. …