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Presidential Term Limits and the African Union

  • Micha Wiebusch (a1) and Christina Murray (a2)

Abstract

A growing number of states have modified constitutionally determined presidential term limits or adopted a flexible interpretation of relevant constitutional provisions to allow incumbent leaders additional terms in the highest office. This article investigates African Union (AU) responses to attempts to overturn or weaken term limits on executive power, one of the most tenacious constitutional trends in Africa. Inspired by the AU's well-established discourse on “unconstitutional changes of government” under the African Charter on Democracy, Elections and Governance, the article frames the manipulation of presidential term limits as “undemocratic changes of the constitution”. From this perspective it argues for a more active role for the AU in monitoring and enforcing constitutionalism and respect for democratic standards by member states when they amend their constitution. It concludes with a tentative set of principles to guide processes of constitutional change in Africa.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Corresponding author

Footnotes

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*

Associate research fellow, UN University Institute on Comparative Regional Integration Studies; associate research fellow, University of Antwerp, Institute of Development Policy; research fellow (PhD), School of Law, SOAS University of London.

**

Senior adviser, Standby Team of Mediation Advisers, UN Department of Political Affairs; emeritus professor of human rights and constitutional law, Faculty of Law, University of Cape Town.

Footnotes

References

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1 See, for example, Bratton, MThe ‘alternation effect’ in Africa” (2004) 15/4 Journal of Democracy 147; Maltz, GThe case for presidential term limits” (2007) 18/1 Journal of Democracy 128; Fombad, C and Inegbedion, NAPresidential term limits and their impact on constitutionalism in Africa” in Fombad, C and Murray, C (eds) Fostering Constitutionalism in Africa (2010, Pretoria University Law Press) 1; Cheeseman, NAfrican elections as vehicles for change” (2010) 21/4 Journal of Democracy 139.

2 According to the AU Commission, which is the AU's executive arm and secretariat, “[c]onstitutional and legal frameworks should determine the tenure and number of terms that a head of state and government can stand for elections”. See Report of the Interim Chairperson on the Proceedings of the African Conference on Democracy, Elections and Governance (communiqué of the Pretoria Conference on Elections, Democracy and Governance, organized by the AU Commission in collaboration with the Electoral Commission of South Africa, EX/CL/35 (III)) (copy on file with the authors).

3 “Regionwide presidential term limit proposal dropped” (5 August 2015) Economist Intelligence Unit, available at: <http://country.eiu.com/article.aspx?articleid=1163405300&Country=Togo&topic=Politics&subtopic=Forecast&subsubtopic=Political+stability&u=1&pid=297227613&oid=297227613&uid=1> (last accessed 14 January 2019).

4 See Murray, C, Alston, E and Wiebusch, MPresidential term limits and the international community” in Baturo, A and Elgie, R (eds) The Politics of Presidential Term Limits (forthcoming, Oxford University Press).

5 These institutions include the Peace and Security Council, the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights and the African Peer Review Mechanism.

6 The authors’ survey of the 55 constitutions of AU member states found at least 19 different categories of eligibility criteria for assuming the presidency, including nationality, religion, age, possession of political and civil rights, criminal record, physical and mental capacities, moral capacities, residency, property, professional incommensurability, professional qualifications, educational qualifications, national liberation credentials, public declaration of assets, financial requirements, popular support, political party membership, no secret society membership and parliamentary eligibility. Some countries, such as Cameroon, Comoros and Tunisia, refer to law or organic law to develop presidential eligibility criteria further.

7 In parliamentary systems, governments, including the head of the executive, can usually be removed by a vote by members of the legislature (called a vote of no confidence). In contrast, presidents with fixed terms can usually only be removed by special (and onerous) procedures, which set more or less objective requirements. Importantly, unlike the situation in a parliamentary system, a directly elected president cannot be removed because of a political difference between him or her and the legislature.

8 Ginsburg, T, Melton, J and Elkins, ZOn the evasion of executive term limits” (2011) 52 William and Mary Law Review 1806 at 1818; BM Dulani Personal Rule and Presidential Term Limits in Africa (PhD thesis, 2011, Michigan State University) at 63.

9 See, for example, Prempeh, HKProgress and retreat in Africa: Presidents untamed” (2008) 19/2 Journal of Democracy 109; Prempeh, HKPresidential power in comparative perspective: The puzzling persistence of imperial presidency in post-authoritarian Africa” (2008) 35/4 Hastings Constitutional Law Quarterly 761.

10 See, for example, Cheeseman, N and Klaas, B How to Rig an Election (2018, Yale University Press).

11 See, for example, Udombana, NJArticulating the right to democratic governance in Africa” (2004) 24 Michigan Journal of International Law 1209 and Prempeh, HKAfrica's ‘constitutionalism revival’: False start or new dawn?” (2007) 5/3 International Journal of Constitutional Law 469.

12 Barkan, JDLegislatures on the rise?” (2008) 19/2 Journal of Democracy 124; Mattes, R and Mozaffar, SLegislatures and democratic development in Africa” (2016) 59/3 African Studies Review 201.

13 Steytler, NDomesticating the leviathan: Constitutionalism and federalism in Africa” (2016) 24/2 African Journal of International and Comparative Law 272; Dyzenhaus, ADecentralisation: Accountability in local government” in Cheeseman, N (ed) Institutions and Democracy in Africa: How the Rules of the Game Shape Political Developments (2018, Cambridge University Press) 327.

14 Egbewole, W (ed) Judicial Independence in Africa (2017, Wildy, Simmonds and Hill).

15 HK Prempeh “Africa's ‘constitutionalism revival’”, above at note 11.

16 Historical examples of states without limits on the duration of the presidential mandate are the “presidents for life” introduced in Malawi (Hastings Banda 1971–93), Equatorial Guinea (Francisco Macías Nguema 1972–79), Central Africa Republic (Jean-Bédel Bokassa 1972–76), Tunisia (Habib Bourguiba 1975–87) and Uganda (Idi Amin 1976–79).

17 Three states permit four years (Egypt, Ghana and Nigeria), two states permit six years (Chad and Liberia) and four states permit seven years (Burundi, Cameroon, Equatorial Guinea and Gabon).

18 Other constitutions that provided for a maximum of three terms in the past include those of Seychelles (1993), Madagascar (1998) and Tunisia (1959).

19 HK Prempeh “Africa's ‘constitutionalism revival’”, above at note 11.

20 As of November 2018, term limit changes in Gambia and Sudan were pending but not finalized, so these changes are excluded from the analysis.

21 These include Zambia (2001), Malawi (2002), Nigeria (2006), Burkina Faso (2014) and Benin (2005 and 2017). Changing term limits has been discussed on many more occasions, but this study is limited to cases in which proposed change had a fair chance of success and does not consider cases in which proposals to change term limits are, among other things, part of opposition activism without a realistic chance of success or at the level of undisclosed cabinet meetings.

22 Elections in South Sudan were postponed and the incumbent's presidential mandate extended twice by constitutional amendments adopted by Parliament. In DRC, the Constitutional Court decided that the president may stay in power until a newly elected president is installed.

23 Constitution of Burkina Faso (2015), art 37.

24 See note 34 below.

25 The justification of the Burundian Constitutional Court is similar to that of the Namibian Parliament when it permitted Sam Nujoma to run for a third term in 1999.

26 See Vandeginste, SLegal loopholes and the politics of executive term limits: Insights from Burundi” (2016) 16/2 Africa Spectrum 39.

27 See Adjolohoun, SHMade in courts’ democracies? Constitutional adjudication and politics in African constitutionalism” in Fombad, CM (ed) Constitutional Adjudication in Africa (2017, Oxford University Press) 247 at 273.

28 Constitution of Malawi (1994), art 83(3).

29 State v Ex Parte Muluzi and Another (2 of 2009) [2009] MWHC 13 (16 May 2009). Incidentally, when in office, Muluzi launched an unsuccessful campaign to remove term limits.

30 See Fombad, CMSome perspectives on durability and change under modern African constitutions” (2018) 11/2 International Journal of Constitutional Law 382; Ginsburg, T and Melton, JDoes the constitutional amendment rule matter at all? Amendment cultures and the challenges of measuring amendment difficulty” (2015) 13/3 International Journal of Constitutional Law 686; Dixon, RConstitutional amendment rules: A comparative perspective” in Dixon, R and Ginsburg, T (eds) Comparative Constitutional Law (2011, Edward Elgar) 96.

31 A Abebe “Taming regressive constitutional amendments: The African Court as a continental (super) constitutional court” International Journal of Constitutional Law (forthcoming).

32 Roznai, YUnconstitutional constitutional amendments: The migration and success of a constitutional idea” (2013) 61/3 American Journal of Comparative Law 657.

33 The authors’ survey of 55 AU constitutions revealed at least 15 categories of unamendable clauses: republican character of the state and / or government; monarchical character of the state; democratic credentials; human rights credentials; linguistic credentials; (territorial) integrity or unity of the state or cohesion among people; symbolic credentials; term limits; independence; reconciliation; decentralization; state of war, siege, emergency or exceptional powers; presidential vacancy; eligibility criteria; and amnesties.

34 States that currently have unamendable clauses on presidential term limits include Burkina Faso, Central African Republic, Niger, DRC, Madagascar, Guinea, Mauritania, Senegal, Tunisia, Algeria and Egypt.

35 The ACDEG confirms this interpretation in art 10(2): “State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.” Accepting that a referendum may reflect national consensus suggests that consensus does not mean unanimity.

36 As discussed below, courts may be involved when processes are challenged or when it is argued that amendments conflict with fundamental constitutional principles. See, for instance, Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC); Juma, L and Okpaluba, CJudicial intervention in Kenya's constitutional review process” (2012) 11 Washington University Global Studies Law Review 287; Colon-Rios, JBeyond parliamentary sovereignty and judicial supremacy: The doctrine of implicit limits to constitutional reform in Latin America” (2013) 44 Victoria University of Wellington Law Review 521.

37 This confirms the “formal institutionalization” thesis of Posner and Young in Posner, D and Young, DThe institutionalization of political power in Africa” (2007) 18/3 Journal of Democracy 126.

38 See similarly Tull, D and Simmons, CThe institutionalisation of power revisited: Presidential term limits in Africa” (2017) 52/2 Africa Spectrum 79.

39 See, generally, the operationalization of the African Peace and Security Architecture, the African human rights system and the African Governance Architecture.

40 See Declaration of the OAU Assembly of Heads of State and Government on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World, AHG/Decl.1 (XXVI) (1990). See also M Wiebusch, CC Aniekwe, L Oette and S Vandeginste “The African Charter on Democracy, Elections and Governance: Past, present and future” in this issue.

41 The AU's normative framework on democratic governance is built around various treaties, protocols, resolutions, declarations and decisions; for an overview, see African Governance Architecture “Shared values” instruments, available at: <http://aga-platform.org/index.php/about> (last accessed 14 January 2019). For an overview of the AU's normative and enforcement framework on protecting constitutionalism, see Wiebusch, M The Role of Regional Organizations in the Protection of Constitutionalism (2016, International Institute for Democracy and Electoral Assistance).

42 See, for example Evans, M and Murray, RThe state reporting mechanism of the African Charter” in Evans, M and Murray, R (eds) The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006 (2008, Cambridge University Press) 49.

43 See for example Aniekwe, CC and Atuobi, SMTwo decades of election observation by the African Union: A review” (2016) 15/1 Journal of African Elections 25.

44 Although the APRM was created outside the (O)AU system, the AU Assembly of Heads of State and Government decided to incorporate it into the structures of the AU. See 23rd ordinary session of the AU Assembly of Heads of State and Government in Malabo, Equatorial Guinea, June 2014 (Assembly/AU/Dec.527(XXIII)).

45 ACDEG, art 49. See also “Guidelines for state parties’ reports under the ACDEG” (2016), annex, available at: <http://aga-platform.org/sites/default/files/2018-10/Rules%20Of%20Procedure%20FINAL.pdf> (last accessed 13 February 2019). At the time of writing only one state (Togo) had submitted a report.

46 See Protocol Relating to the Establishment of the Peace and Security Council of the African Union (2002).

47 For an overview of the ACtHPR's recent practice, see L Burgorgue-Larsen and GF Ntwari “Chronique de jurisprudence de la Cour Africaine des Droits de l'Homme et des Peuples (2015–2016)” [Chronicle of jurisprudence of the African Court of Human and Peoples’ Rights] (2018) 113 Revue Trimestrielle des Droits de l'Homme 127.

48 For an overview of ACHPR practice in protecting human rights, see Evans and Murray (eds) The African Charter, above at note 42.

49 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court (1998), art 3(1).

50 Formally, the ACDEG is only binding on those states that have ratified it. As of January 2019, the ACDEG had been signed by 46 member states and ratified by 32. However, this has not prevented the AU from invoking it in the political crises in states that have not ratified it, such as Egypt (2013–14), DRC (2016–18) or Gambia (2016–17).

51 ACDEG, art 10(1).

52 Id, art 3.

53 Id, art 5.

54 See Feldman, D‘Which in your case you have not got’: Constitutionalism at home and abroad” (2011) 64 Current Legal Problems 117; and, for the relationship between democracy and constitutions, Scheppele, KAutocratic legalism” (2018) 85 University of Chicago Law Review 545.

55 See AU Constitutive Act (2000), preamble and arts 4(m), 4(p) and 30.

56 See the set of common values and principles for democratic governance in the Lomé Declaration.

57 See ACDEG, preamble and particularly arts 2, 3, 4, 5, 10, 14, 15 and 32.

58 Report of the Commission on Governance, Constitutionalism and Elections in Africa (Assembly/AU/9(XXVI)) (2016), para 27 (copy on file with the authors).

59 ACDEG, art 10(2).

60 Ezulwini Framework for the Enhancement of the Implementation of Measures of the African Union in Situations of Unconstitutional Changes of Government in Africa (2009).

61 Decision on the Prevention of Unconstitutional Changes of Government and Strengthening the Capacity of the African Union (Assembly/AHG/Dec.269 (XIV)) (2010), para 6(ii)(a).

62 Lomé Declaration; ACDEG, art 23(1)–(4). The anti-coup norm has also been codified in other AU instruments including the AU Constitutive Act. See Wiebusch The Role of Regional Organizations, above at note 41.

63 ACDEG, art 23(5).

64 Report of the Ministerial Meeting on the Draft African Charter on Democracy, Elections and Governance (2006) (copy on file with the authors).

65 Ibid. Decision on the African Charter on Democracy, Elections and Governance (EX.CL/Dec.320 (X)) (2007).

66 See, for example, the AU response to sanction the military coups in Central African Republic (2003 and 2013), Mauritania (2008), Guinea (2008), Madagascar (2009), Niger (2010), Mali (2012), Guinea Bissau (2012), Egypt (2013) and Burkina Faso (2015).

67 See similarly Manirakiza, PInsecurity implications of unconstitutional changes of government in Africa: From military to constitutional coups” (2016) 17/2 Journal of Military and Strategic Studies 86.

68 PSC Communiqué of the 207th Meeting (29 October 2009), AU doc PSC/AHG/Comm3(CCVII).

69 PSC Communiqué of the 216th Meeting (19 February 2010), AU doc PSC/PR/Comm 1(CCXVI).

70 PSC Communiqué of the 465th Meeting (3 November 2014), AU doc PSC/PR/COMM. (CDLXV).

71 See PSC Communiqué of the 432nd Meeting (29 April 2014), AU doc PSC/PR/BR.(CDXXXII). On the AU's position vis-à-vis popular uprisings, see SA Dersso “The status and legitimacy of popular uprisings in the AU norms on democracy and constitutional governance” and P Manirakiza “Towards a right to resist gross undemocratic practices in Africa”, both in this issue.

72 See Closa, C and Kochenov, D (eds) Reinforcing Rule of Law Oversight in the European Union (2016, Cambridge University Press).

73 Aniekwe and Atuobi “Two decades of election observation”, above at note 43 at 33–35.

74 Decision on the Meeting of Experts on Elections, Democracy and Governance in Africa, EX.CL/Dec. 124(V) (2004).

75 Revised country self-assessment questionnaire for the APRM (2012).

76 For a similar view, see European Commission for Democracy Through Law (Venice Commission) Report on Term-Limits: Part I: Presidents (study no 908/2017, CDL-AD(2010)015), adopted at 114th plenary session, Venice, 16–17 March 2018, available at: <http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2018)010-e> (last accessed 14 January 2019).

77 Country Review Report of Uganda (2009, APRM) at 26.

78 Id at 348.

79 Country Review Report of Chad (2016, APRM) at 44.

80 Country Review Report of Benin (2008, APRM) at 79.

81 Country Review Report of Rwanda (2005, APRM) at 41.

82 Id at 40–41.

83 Id at 41.

84 Id at 45.

85 Country Review Report of Uganda, above at note 77 at 83.

86 An exception is the APRM review of Zambia (2013), which provides a thoughtful analysis of the country's constitutional review process. In that case, the 2011 country review overlapped with (rather than being triggered by) a process of constitutional change. Eventually, Parliament rejected the proposed constitutional amendments, but that did not prevent the APRM from critically reviewing the proposals. See Country Review Report of Zambia (2013, APRM) at 274–79.

87 Revised country self-assessment questionnaire for the APRM (2012).

88 Gruzd, S and Turianskyi, YThe African Peer Review Mechanism at 15: Achievements and aspirations” (2018) 170 SAIIA Policy Briefing 1 at 2.

89 See, for example, the ACHPR “Guidelines on freedom of association and assembly in Africa” (2017) and the ACHPR “Guidelines for the policing of assemblies by law enforcement officials in Africa” (2017). See also the various ACHPR resolutions on the right to freedom of association, expression and participation in government.

90 For examples of the ACtHPR's freedom of expression jurisprudence, see: Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo and Burkinabe Human and Peoples’ Rights Movement v Burkina Faso ACtHPR 013/2011; Lohe Issa Konaté v Burkina Faso (Konaté) ACtHPR 004/2013; and Ingabire Victoire Umuhoza v Republic of Rwanda (Ingabire) ACtHPR 003/2014.

91 Report of the Delegation of the African Commission on Human and Peoples’ Rights on its Fact-Finding Mission to Burundi (7–13 December 2015), available at: <https://www.uantwerpen.be/images/uantwerpen/container2673/files/Burundi%20DPP/conflit/oig/CADHP0516E.pdf> (last accessed 31 January 2019). In its final report, the ACHPR eventually found a series of violations of the human rights set out in the African Charter, arts 2 (freedom from discrimination), 3 (equality before the law and equal protection of the law), 4 (life), 5 (prohibition of torture and inhumane treatment), 6 (personal liberty and protection from arbitrary arrest), 7 (fair trial), 9 (information), 10 (freedom of association), 11 (freedom of assembly), 13 (participation in government), 14 (property), 16 (health), 17 (education) and 23 (national and international peace and security).

92 Legal Resources Foundation v Zambia ACHPR 211/98; Mouvement Ivorien des Droits Humains (MIDH) v Côte d'Ivoire Commission 246/02.

93 Lawyers for Human Rights v Swaziland ACHPR 251/02.

95 Tanganyika Law Society and Legal and Human Rights Centre and Reverend Christopher R Mtikila v United Republic of Tanzania ACtHPR 009 and 011/2011.

96 Actions Pour la Protection des Droits de l'Homme v Republic of Côte d'Ivoire (APDH v Côte d'Ivoire) ACtHPR 001/2014. For analysis of this case, see B Kioko “The African Charter on Democracy, Elections and Governance as a justiciable instrument” and G Niyungeko “The African Charter on Democracy, Elections and Governance as a human rights instrument”, both in this issue.

97 APDH v Côte d'Ivoire, id, para 132.

98 Order on the request for interim measures Kayumba Nyamwasa and Others v Republic of Rwanda ACtHPR 016/2015, para 8.

99 Id, para 4.

100 African Charter, art 5(1)(a).

101 PSC Press Statement of the 791st Meeting on 22 August 2018, (PSC/PR/BR (DCCXCI).

102 Decision on Governance, Constitutionalism and Elections in Africa (2016), Assembly/AU/Dec.592(XXVI).

103 ACDEG, preamble and arts 2(2), 3(2), 4(1), 5, 10, 14, 15 and 32(8). See also AU Constitutive Act, preamble and art 4(m). See with specific reference to constitutional reform, the legally binding Decision on the Prevention of Unconstitutional Changes of Government, above at note 61, para 6(ii)(a).

104 ACDEG, art 38.

105 AU Constitutive Act, art 4(o).

106 ACHPR “Guidelines for the policing of assemblies by law enforcement officials in Africa” (2017).

107 ACDEG, arts 14 and 32(5).

108 Decision on Governance, Constitutionalism and Elections, above at note 102.

109 African Charter, arts 13 and 20.

110 Id, art 9(2); ACDEG, arts 2(10) and 27(8).

111 African Charter, art 11.

112 Id, art 10.

113 Id, art 6.

114 Id, arts 4–5.

115 See, for example, ACHPR “Guidelines on freedom of association and assembly”, above at note 89, paras 77–93. Also see, for example, ACtHPR jurisprudence in Konaté, above at note 90, paras 125–66 and Ingabire, above at note 90, paras 120-63, establishing standards for restrictions on freedom of expression.

116 Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1 (XXXVIII) (2002) establishes the main criteria for “free and fair” elections.

117 ACDEG, preamble and arts 2(3), 3(4), 17, 20 and 32 add the criterion of “transparency” for elections.

118 The benchmark for “credible” elections is established through the practice of the AUEOMs.

119 See ACDEG, arts 2(5) and 32 for judicial independence. See id, art 15 for the independence of public institutions that promote and support democracy and constitutional order.

120 See id, art 17 for the independence and impartiality of election management bodies. In APDH v Côte D'Ivoire, the ACtHPR clarified (para 118) that “an electoral body is independent where it has administrative and financial autonomy; and offers sufficient guarantees of its members’ independence and impartiality”. See also ACDEG, art 22 on independent and impartial national election monitoring or observation mechanisms.

121 ACDEG, art 3(5); Lomé Declaration.

122 ACDEG, arts 10(2) and 38. See also decisions by the PSC, AU Chairperson and AU Commission Chairperson, and recommendations by AUEOMs.

123 ACDEG, arts 8, 29, 31 and 38.

124 Id, preamble and arts 2(10), 3(7), 4(2), 27(2), 30 and 38. See also AU Constitutive Act, art 3(g); African Charter for Popular Participation in Development (1990); and the Lomé Declaration.

125 ACDEG, preamble and arts 3(8), 12, 13 and 33(2). Again, negotiation to reach a consensus should ideally be inclusive in the sense of including all sectors of society; however, this may be difficult to achieve post-conflict and failure to fulfil the principle of inclusivity in its broadest sense will not necessarily mark a process that fails the test of national consensus.

126 Id, art 29(2). Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), art 9.

127 ACDEG, art 31. African Youth Charter (2006), art 11.

128 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa (2016), art 5(3).

129 ACDEG, art 31(1). See also Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (2018), arts 4, 21 and 22.

130 ACDEG, art 8(3).

131 Id, art 3(11); Lomé Declaration.

* Associate research fellow, UN University Institute on Comparative Regional Integration Studies; associate research fellow, University of Antwerp, Institute of Development Policy; research fellow (PhD), School of Law, SOAS University of London.

** Senior adviser, Standby Team of Mediation Advisers, UN Department of Political Affairs; emeritus professor of human rights and constitutional law, Faculty of Law, University of Cape Town.

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