Introduction
This essay considers major landmarks in the development of a norm on democracy in Africa and the elevation of democratic participation into a standard of continental significance. There are at least two—potentially contradictory—reasons why this is important. First, it calls into question suggestions that governmental legitimacy is an exclusively local matter. Second, this transition may also raise complicated questions regarding democratic deficit when regional institutions are seen to insert themselves into domestic political processes or to oversee them. While regional institutions can no longer abdicate jurisdiction in disputes over governmental legitimacy,Footnote 1 they may nevertheless suffer constraints as to the scope of remedies that they can offer in such situations. The trajectory of a continental law of democracy for Africa could depend on how it navigates these tensions.
Two complementary principles defined statehood and governance in post-colonial Africa. First, how government came to power was regarded as essentially a subject of domestic jurisdiction and not a matter for external oversight.Footnote 2 Second, coups d’état were said to be “the most frequently attempted method of changing government,”Footnote 3 and “the normal mode of political change.”Footnote 4 Some even considered the coup d’état to be a legitimate instrument of foreign policy.Footnote 5 These factors made the coup d’état a “clear event, easy to date and (if successful) possible to document.”Footnote 6
Yet, by the beginning of the millennium, a normative shift occurred that recognized rule by men in military fatigues as largely discredited. Consequently, “in the 2000s, elections and term limits replaced death and coup d’état as the most common ways in which African presidents and prime ministers left office.”Footnote 7 The African Charter on Democracy, Elections and Governance (ACDEG) crystallizes this in treaty form, declaring in its preamble the explicit goal of entrenching “in the Continent a political culture of change of power based on the holding of regular, free, fair and transparent elections.”Footnote 8 This evolution was shaped by painful history, state practice, and regional jurisprudence.
Undoing Democratic Destitution
The colonial project was a European coup against Africa that did not pretend to be a democracy. Africa’s interstate system began in the General Act of the Berlin Conference, which essentially denied both the sovereignty of African territories and the humanity of Africans.Footnote 9 European occupation of the continent crystallized thereafter in the doctrine of effective occupation regarded pre-existing African kingdoms as “destitute of any recognizable form of sovereignty”;Footnote 10 and pronounced Africans as “so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.”Footnote 11 In 1935, Benito Mussolini’s Italy invaded Ethiopia (the sole African state to be spared colonial occupation), overthrew the government and mounted a hostile occupation of the country until 1941.Footnote 12
The history of the African continent in the aftermath of decolonization was dominated by coups,Footnote 13 sometimes accompanied by political assassinations.Footnote 14 Ali Mazrui explains that, at independence, African states simultaneously confronted two major challenges of civic integration and political legitimacy. Integration on the one hand was a problem of hewing together diverse peoples into mutual coexistence. The challenge of legitimacy, on the other hand, addressed the acceptance by the peoples and citizens of the new countries of the authority to rule of the post-colonial political leadership.Footnote 15 Both challenges were conducive to a rise in what has been called “post-formation instability”Footnote 16 and a “proliferation of authoritarian regimes.”Footnote 17
In response, the continental interstate system retreated behind a carapace of domestic jurisdiction erected on the foundation of the Charter of the Organization of African Unity (OAU Charter).Footnote 18 The adoption of the African Charter on Human and Peoples’ Rights (Banjul Charter) broke through this armor.Footnote 19 Among its many provisions, two elements in the Banjul Charter deserve attention. One was the guarantee therein of a right to democratic participation;Footnote 20 the other was the establishment of an African Commission on Human and Peoples’ Rights (African Commission) with competence to protect and promote human rights on the continent.Footnote 21 These two innovations catalyzed continental oversight of democracy. The African Court on Human and Peoples’ Rights has thus held that the right to participation in Article 13(1) of the Banjul Charter “is very broad. It does not cover only direct and indirect participation in the government of their countries through elections.”Footnote 22 The Banjul Charter system additionally confers jurisdiction on continental institutions to oversight this and to develop norms for that purpose. It equally provides the basis for the recognition of elections as foundational to the authority to govern in Africa.Footnote 23
From Bullets to Ballots?
By 1989, Africa’s continental institutions began a re-evaluation of the complementary doctrines of non-interference and domestic jurisdiction. At its 1990 summit, the Assembly of Heads of State and Government of the OAU declared themselves “fully aware that in order to facilitate this process of socio-economic transformation and integration, it is necessary to promote popular participation of our peoples in the processes of government and development.”Footnote 24 They committed themselves to both democratization and “the consolidation of democratic institutions in our countries.”Footnote 25
In the same year and with the support of the OAU, West Africa’s regional economic community, ECOWAS, deployed a regional standby force known as the ECOWAS Monitoring Group (ECOMOG) to intervene militarily in the conflict in Liberia, signaling a fundamental break with domestic jurisdiction as the doctrinal anchor of the African interstate system. This development would have signal implications for the laws of democracy in Africa.
The following year, in 1991, OAU member states committed to themselves to “respect and promote human rights and fundamental freedoms in all their plentitude including in particular freedom of thought, conscience, association, religion or belief for all our peoples without distinction as to race, sex, language or creed,”Footnote 26 and to “strive to encourage and promote in each our countries, political pluralism and those representative institutions and guarantees for personal safety and freedom under the law that are our common heritage.”Footnote 27 The early contours of a continental norm on democratic participation had begun to emerge. By the turn of the millennium, therefore, the OAU could declare that “the phenomenon of coup d’état has resulted in flagrant violations of the basic principles of our continental organization and of the United Nations,”Footnote 28 and that “coups are sad and unacceptable developments in our Continent, coming at a time when our people have committed themselves to respect of the rule of law based on peoples’ will expressed through the ballot and not the bullet.”Footnote 29
Regional Courts and Tribunals in Africa and the Norm on Democratic Participation
Regional courts and tribunals in Africa, especially the African Commission, the African Court on Human and Peoples’ Rights, and the Courts of Justice of the Regional Economic Communities, were central in the evolution of this continental normative framework. The assumption of jurisdiction by regional courts and tribunals over cases concerning or arising from regime change was the clearest indication that the age of tolerance of constitutional instability was at an end. A brief illustration of the institutional geography and chronology of some of the relevant jurisprudence is essential.
The African Commission played a defining role in clarifying the elements and scope of the norm on democracy in Africa founded on Article 13 of the Banjul Charter. In so doing, it laid the foundations for a continental norm against unconstitutional changes of government (UCGs), holding that changes of government had ceased to be matters essentially within the domestic jurisdiction of affected states. Three cases decided by the Commission deserve attention in this respect.
On June 12, 1993, Nigeria’s military rulers organized a presidential election to return the country to civilian governance after a decade of military rule. Ten days after the vote, with results about to be declared, the military regime reprised the example of their Algerian peers from two years earlier,Footnote 30 and issued an announcement nullifying the ballot. A group of Nigerian advocacy organizations approached the African Commission claiming that the nullification of the election violated the Banjul Charter. In upholding their challenge, the Commission found that the nullification of the election violated Articles 13 and 20(1) of the Banjul Charter.Footnote 31 It thereby established an important principle concerning the sanctity of elections in Africa.
Four years after the developments in Nigeria, the military in 1997 overthrew the elected civilian government of Burundi, a land-locked state. In response, Burundi’s neighbors in East and Central Africa imposed a regional blockade on the country. The Association Pour la Sauvegarde de la Paix au Burundi, a non-governmental organization, initiated proceedings before the African Commission against the blockading neighbors, claiming various violations of the Banjul Charter. Dismissing their claim, the African Commission affirmed the need for regional action against UCGs in Africa and upheld the regional blockade as “legitimate intervention in international law.”Footnote 32 Addressing the threshold for regional engagement, the Commission explained that “the military coup which deposed the democratically elected government constituted a threat to, indeed a breach of the peace in Burundi and the region.”Footnote 33 This decision explicitly confirmed that the UCG had become a legitimate matter of regional attention in Africa.
Following his ouster from power by soldiers in 1994, The Gambia’s former president, Dauda Jawara, similarly approached the African Commission, questioning the legitimacy and powers of the usurper regime. In this complaint, the Commission addressed for the first time the compatibility of UCGs with the Banjul Charter, declaring that the 1994 military coup in The Gambia was “a grave violation of the right of Gambian people to freely choose their government as entrenched in Article 20(1) of the Charter.”Footnote 34
At the time of his ouster in July 1994, Dauda Jawara had been in power for nearly a quarter of a century, since April 1970 and with no end in sight to his presidency. His overthrow by the military was, of course, a coup but it was difficult to see how the people could have peacefully brought an end to his tenure. In deciding this case as it did, the Commission focused its condemnation against military coups, avoiding questions as to how power was retained or for how long.
These two questions (how power is retained and for how long) arose in EACSOF v. Attorney-General of Burundi. The dispute before the East African Court of Justice (EACJ) here arose from the decision on May 5, 2015 by Burundi’s Constitutional Court dismissing an application to nullify the bid for third term by President Pierre Nkurunziza. In December 2019, the EACJ’s First Instance Chamber dismissed the case on the merits. While the case was pending on appeal, President Nkurunziza died in June 2020. In November 2021, the Appeal Chamber determined that the remedies sought had become moot in the light of the death of President Nkurunziza and the presidential succession that followed. Crucially, however, it nevertheless observed that the decision by the Constitutional Court offering him a third term in 2015 violated the East African Community Treaty.Footnote 35 This decision suggests that, in addition to regime change by coups and nullification of elections, tenure prolongation by incumbent leaders is a matter for the law of democracy in Africa.
Conclusion
The developments surveyed in this essay have begun to define the elements of a continental norm concerning democracy in Africa. Broadly, these norms comprise three elements. First, there are norms regulating access to political power. Concerning this, the African Commission asserts that “AU Member States have adopted democracy as their political system” based on the principle of one person one vote.Footnote 36 Complementarily, the African Court has helpfully clarified the elements of democracy to include the “regular conduct of free and transparent elections … through universal suffrage.”Footnote 37 These norms are anchored in the prohibition contained in the Constitutive Act of the African Union against “Governments which shall come to power through unconstitutional means.”Footnote 38
Second, there is a body of norms against executive tenure indeterminacy. Underscoring this point, the African Union has clarified that “constitutions shall not be manipulated in order to hold on to power against the will of the people.”Footnote 39 It is thus arguable that power originally acquired legitimately could subsequently cease to be so,Footnote 40 and that manipulation of national constitutions to extend presidential tenure could be classified as both anti-democratic and a coup.Footnote 41
Third, when power has been acquired legitimately and the holder respects tenure limits, the African system recognizes a norm that the holder shall not be removed from office except by lawful and constitutional means or expiration of tenure. Above all, this body of norms confirms that in Africa, how the mandate to govern is acquired, retained, or lost has become a subject of both continental norms and oversight. The evolution of this continental law of democracy remains work in progress and it is likely that the contours and limits will continue to be shaped over the years to come.
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