Published online by Cambridge University Press: 14 May 2019
During the first decade of the African Charter on Democracy, Elections and Governance, one significant political development in Africa has been the resort to popular protests or uprisings against tyrannical rule. These uprisings have been remarkable for their scale and extraordinary political ramifications, and succeeded in unseating longstanding authoritarian rulers. They presented serious challenges to the African Union's democratic and constitutional governance norms, in particular regarding the status of uprisings in relation to the ban on unconstitutional changes of government and the determination of whether and when resultant changes of government are constitutional. In addressing these issues, this article contends that, although popular uprisings (also called “democratic revolutions”) are not a priori deemed constitutional, the AU's application of its norm banning unconstitutional changes of government to the popular uprisings in North Africa and Burkina Faso has opened a legal avenue that offers constitutional legitimacy for popular uprisings overthrowing authoritarian regimes.
Adjunct professor, College of Law and Governance Studies, Addis Ababa University; founder, Amani Africa (a policy research and training think tank based in Addis Ababa). This article is written strictly in a personal capacity and does not reflect any of the author's official or institutional affiliations. The author greatly appreciates the very useful inputs that he received from the editors.
1 See generally Dersso, SA “Defending constitutional rule as a peacemaking enterprise: The case of the AU's ban of unconstitutional changes of government” (2017) 24/4 International Peacekeeping 639CrossRefGoogle Scholar; Souaré, I “The African Union as a norm entrepreneur on military coups d’état in Africa (1952–2012): An empirical assessment” (2014) 52 The Journal of Modern African Studies 69CrossRefGoogle Scholar; Yemisi, OE “A club of incumbents? The African Union and coups d’état” (2012) 44 Vanderbilt Journal of International Law 123Google Scholar.
2 See MT Maru “The North African uprisings under the AU's normative framework” (paper presented at the Inter-African Group Conference on the Implications of North African Uprisings for Sub-Saharan Africa, Nairobi, 2 April 2012) at 169.
3 This distinction relates to the nature of law and its relationship to justice. For legal positivism, law refers to the rules that those with authority enact in accordance with duly established procedures applicable in society. Any set of rules meeting such criteria constitutes law, irrespective of its justness. By contrast, the natural law theory posits that what determines the legality of a rule or a political act is its consistency with its inherent purpose or with principles of justice, rather than how the rule is made or whether the act is clearly stipulated in an identifiable source of law. Thus, unlike the positivist school for which whether or not something is constitutional can only be determined by reference to what the constitution says, for the natural law theory constitutionality depends on the act's consistency with the essential purpose of the constitution or principles of justice.
4 The contrary view among positivist legal scholars has been that popular uprisings or revolutions are exclusively political issues that do not lend themselves to legal analysis. T Frank thus argued that “to debate whether revolution is unconstitutional is pointless sophistry”: Khan, A “A legal theory of revolutions” (1987) 5 Boston University International Law Journal 1 at 2Google Scholar. For a recent work relying on the effectiveness theory, see Obse, K “The Arab Spring and the question of legality of democratic revolution in theory and practice: A perspective based on the AU normative framework” (2014) 27/4 Leiden Journal of International Law 817CrossRefGoogle Scholar.
5 R Stengle “Person of the Year introduction” (14 December 2011) Time (New York), available at: <http://content.time.com/time/specials/packages/article/0,28804,2101745_2102139_2102380,00.html> (last accessed 4 December 2018).
7 Khan “A legal theory”, above at note 4 at 2.
8 H Kelsen Pure Theory of Law, as quoted in Obse “The Arab Spring”, above at note 4 at 820.
9 Khan “A legal theory”, above at note 4, calls this “social acceptability”.
10 Declaration on the Framework for an OAU Response to Unconstitutional Change of Government, OAU doc AHG/Decl.5 (XXXVI) adopted in Lomé, Togo at the 36th ordinary session of the OAU, July 2000.
11 Khan “A legal theory”, above at note 4, noted (at 18) that such a position confuses “a legal order with a mere presence of coercive force”.
12 See for details Kufuor, KO “The OAU and the recognition of governments in Africa: Analyzing its practice and proposal for the future” (2002) 17/2 American University International Law Review 369Google Scholar, noting (at 375) that the OAU had accepted the “principle of effective control as one of the conditions for recognition of governments”.
13 See generally Dersso “Defending constitutional rule”, above at note 1.
14 Dersso, S “The adequacy of the African Peace and Security Architecture to deal with serious democratic deficits” (2012) 21/3 African Security Review 4CrossRefGoogle Scholar. See also Tieku, TK “Multilateralization of democracy promotion and defense in Africa” (2009) 56/2 Africa Today 75CrossRefGoogle Scholar.
15 Tieku, ibid.
16 For details of these, see SA Dersso “Unconstitutional changes of government and unconstitutional practices in Africa” (paper no 2 presented at Tufts University, Fletcher School of Law and Diplomacy, World Peace Foundation African Peace Missions, Massachusetts, June 2016), available at: <https://sites.tufts.edu/wpf/files/2017/07/2.-UCG-Dersso-f.pdf> (last accessed 4 December 2018).
17 Lomé Declaration, preamble, para 4.
18 Id, para 5.
19 AU doc Assembly/AU/4(XVI), adopted at the 14th ordinary session of the AU Assembly, 30 January 2010.
21 Ambassador R Lamamra (AU commissioner for peace and security) “Key note address to the open session of the 284th meeting of the Peace and Security Council of the AU” (Addis Ababa, Ethiopia, 11 July 2011) (copy on file with the author).
22 See “Tunisia swears in interim leader” (16 January 2011) Al Jazeera, available at: <https://www.aljazeera.com/news/africa/2011/01/201111513513854222.html> (last accessed 4 December 2018).
23 PSC Communiqué of the 257th Meeting on the Situation in Tunisia (15 January 2011), AU doc PSC/PR/COMM.2(CCLVII), para 3.
24 Id, para 2.
25 PSC Communiqué of the 268th Meeting on the Situation in Tunisia (23 March 2011), AU doc PSC/PR/BR.2(CCLXVIII), para 2.
26 See “Egypt Protests: Key moments in unrest” (11 February 2011) BBC News, available at: <https://www.bbc.com/news/world-middle-east-12425375> (last accessed 4 December 2018).
27 PSC Communiqué of the 260th Meeting on the Situation in Egypt, AU doc PSC/PR/COMM.(CCLX), para 2.
28 Id, para 3.
30 PSC Communiqué of the 260th Meeting, above at note 27, para 8.
31 See N Ketchley “How Egypt's generals used street protests to stage a coup” (3 July 2017) The Washington Post, available at: <https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/03/how-egypts-generals-used-street-protests-to-stage-a-coup/?noredirect=on&utm_term=.6e82071aad96?> (last accessed 4 December 2018). See also “Egypt and the coup: Inside the 11 days that toppled Morsi” (3 July 2018) Middle East Eye, available at: <https://www.middleeasteye.net/news/egypt-coup-inside-story-sisi-events-topple-morsi-july-2013-five-years-1727562284> (last accessed 4 December 2018).
32 PSC Communiqué of the 384th Meeting on the Situation in Egypt, AU doc PSC/PR/COMM.(CCCLXXXIV), para 6.
34 SA Dersso “AU stance on Egypt a rare show of commitment” (Monday 15 July 2013) Cape Argus (Cape Town) at 15. See also E Jobson “Cairo unhappy about temporary suspension from the African Union” (8 July 2013) Business Day (Johannesburg), available at: <https://www.businesslive.co.za/bd/world/africa/2013-07-08-cairo-unhappy-about-temporary-suspension-from-the-african-union/> (last accessed 4 December 2018).
35 PSC Communiqué of the 25th Meeting on the Situation in Togo (25 February 2005), AU doc PSC/PR/Comm (XXV), para 2.
36 See SA Dersso “Unconstitutional changes of government and popular uprisings: Mending the cracks in the AU norm and practice” (briefing paper delivered at the PSC's open session on 29 April 2014) (copy on file with the author).
37 PSC Press Statement regarding open session (29 April 2014), AU doc PSC/PR/BR.(CDXXXII).
38 Dersso “The adequacy of the African Peace and Security Architecture”, above at note 14.
39 AU High-Level Panel on Egypt Final Report (June 2014) PSC/AHG/4.(CDXVI).
40 Solemn Declaration on the Common African Defense and Security Policy (AU, 2004).
41 See UDHR, preamble.
42 J Locke Second Treatise of Government (2017, Jonathan Bennet) at 74, available at: <https://earlymoderntexts.com/assets/pdfs/locke1689a.pdf> (last accessed 4 December 2018); American Declaration of Independence, para 2; UDHR, preamble.
43 Locke, id at 194.
44 UDHR, preamble.
45 AU High-Level Panel on Egypt Final Report, above at note 39 at 31.
46 See, for example, F Ajami “Demise of the dictators” (14 February 2011) News Week (New York) at 18–27. See also Masoud “The upheavals in Egypt and Tunisia”, above at note 29 at 20–34; and F Zakaria “The revolution” (14 February 2011) Time at 18–19.
47 See Dersso “The adequacy of the African Peace and Security Architecture”, above at note 14 at 6–7.
48 AU High-Level Panel on Egypt Final Report, above at note 39 at 31.
49 OB Yedder “Tunisia: Lessons from the uprising” (February 2011) New African at 20.
50 See generally R Laremont (ed) Revolution, Revolt and Reform in North Africa (2014, Routledge).
51 Yedder “Tunisia”, above at note 49.
52 See Dersso “Defending constitutional rule”, above at note 1.
53 African Charter on Human and Peoples’ Rights, art 11.
54 M Wiebusch “The role of regional organizations in the protection of constitutionalism” (2016, International IDEA discussion paper 17) at 24.
55 See African Commission on Human and Peoples’ Rights “Guidelines on freedom of association and assembly in Africa” (2017), para 70(b).
56 See PSC Communiqué of the 265th Meeting on the Situation in Libya (10 March 2011), AU doc PSC/PR/COMM.2(CCLXV).
57 AU High-Level Panel on Egypt Final Report, above at note 39 at 31.
58 J Levy “Egypt: Should we cheer the people or weep for democracy?” (5 July 2013) Time, available at: <http://ideas.time.com/2013/07/05/egypt-should-we-cheer-the-people-or-weep-for-democracy/> (last accessed 4 December 2018).
59 See: A Essa “Q&A: What does AU suspension mean for Egypt?” (6 July 2013) Al Jazeera, available at: <http://www.aljazeera.com/news/africa/2013/07/20137518523285137.html> (last accessed 4 December 2018).
60 See, for example, Ajami “Demise of the dictators”, above at note 46. See also Masoud “The upheavals in Egypt and Tunisia”, above at note 29; and Zakaria “The revolution”, above at note 46.
61 See Ketchley “How Egypt's generals”, above at note 31.
62 See A Al-Arian “Egypt's democratic outlaws” (4 July 2013) Al Jazeera, available at: <https://www.aljazeera.com/indepth/opinion/2013/07/201374115114452703.html> (last accessed 4 December 2018).
63 M Bishara “Three questions: Egypt's ‘zero sum’ politics” (6 July 2013) Al Jazeera, available at: <https://www.aljazeera.com/indepth/opinion/2013/07/20137515562854215.html> (last accessed 4 December 2018).
64 KM Abou El Fadl “The perils of a ‘people's coup’” (7 July 2013) New York Times, available at: <https://www.nytimes.com/2013/07/08/opinion/the-perils-of-a-peoples-coup.html?src=recg> (last accessed 4 December 2018).
65 PSC Communiqué of the 465th Meeting (3 November 2014), AU doc PSC/PR/COMM.(CDLXV), para 2.