Introduction
Much of Africa’s “post-colonial” history has been characterized by a struggle between democratic and anti-democratic forces. Today the former are now mostly ascendant on the continent, but the tendencies are not uniform.Footnote 1 With at least five successful coups in four countries between 2020 and 2023 (Mali, Guinea, Burkina Faso x 2, and Niger), the West African region accounted for the vast majority of all the unconstitutional changes of government (UCGs) that occurred on the African continent over the five years between 2020 and 2025. These developments occurred despite a decades-long effort on the continent to elaborate and institute robust regional international law frameworks prohibiting UCGs. They also transpired despite efforts by the relevant continental and sub-regional bodies to sanction actors that offend against the anti-UCG rules enunciated in the relevant regional legal texts. Thus, especially in West Africa, there has been an appreciable degree of dissonance between the robustness of the normative framework that prohibits and seeks to sanction UCGs, and the contrary socio-political realities on the ground. This essay explores the law on UCGs underpinning this dissonance—the most interventionist aspect of Africa’s international law of democracy. It examines the nature, gaps, and challenges of the implementation of Africa’s regional international law on UCGs. The essay begins by briefly mapping the terrain covered by the generally robust regional normative framework for dealing with UCGs on the African continent, locating its sources, discussing its content, and analyzing its significance. It thereafter turns its attention to the gaps and challenges that have afflicted attempts to implement this normative framework—focusing on the problems that have been experienced by the African Union (AU) and Economic Community of West African States (ECOWAS) sanctions regimes that have done the most to faithfully implement the continent’s regional international law on UCGs. The essay ends with brief concluding remarks.
The Prohibition of UCGs Under African Regional International Law
At the outset, a working definition of UCGs can be developed out of the applicable African instruments. While the proposed composite definition is not perfect, it suffices as a working guide. The AU’s predecessor body, the Organization of African Unity’s definition of UCGs lists several situations that would fit the scope of that concept, as follows:
a military coup d’etat against a democratically elected government; intervention by mercenaries to replace a democratically elected government; replacement of democratically elected governments by armed dissident groups and rebel movements; and the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections.Footnote 2
These four situations involve clear, formal legal breaks with the prevailing constitutional order. To these situations, the African Charter on Democracy, Elections and Governance (ACDEG) added a fifth situation, namely: “Any amendment or revision of the constitution or legal instruments which is an infringement on the principles of democratic change of government.”Footnote 3 Notice that this situation is considerably more interventionist, as it covers purportedly legal constitutional changes that undermine democracy.
It should be also noted that the new Article 28E of the Malabo Protocol (which has not yet entered into force),Footnote 4 would add the following circumstances to the list above, the first of which is a modification of the addition made by the ACDEG, namely: “Any amendment of the Constitution or legal instruments which is an infringement on the principles of democratic change of government or is inconsistent with the Constitution; and any substantial modification to the electoral laws in the last six months before the elections without the consent of the majority of political actors.”
On the continental level, UCGs are explicitly or implicitly prohibited in several AU treaties and instruments. Only the main sources of this prohibition are discussed here. As a matter of implicit prohibition, the concept is reflected at the level of constitutional principles included in the preamble to the Constitutive Act of the African Union, which states that the organization is determined to consolidate democratic institutions and culture on the continent.Footnote 5 Under Article 3 of this same treaty, one of the key objectives of the AU is to promote democratic principles and institutions, popular participation, and good governance. Article 4 of the treaty establishes respect for democratic principles, human rights, and the rule of law as one of the fundamental principles of the organization. Article 13(1) of the African Charter on Human and Peoples Rights guarantees that “every citizen shall have the right to participate freely in the government of [their] country, either directly or through freely chosen representatives.”Footnote 6 Article 20(1) of this treaty reinforces this entitlement by guaranteeing to all peoples the “unquestionable and inalienable” right to self-determination. As importantly, Article 10 of the ACDEG provides that the principle of the supremacy of the Constitution shall be entrenched in the political organization of states parties.Footnote 7 While the African law on unconstitutional changes of government ultimately flows from these principles of democracy and self-determination, it deepens it in significant respects.
Regarding the more explicit prohibition of UCGs on the continental level, the African Commission on Human and Peoples Right’s Resolution on the Military, adopted in November 1994, recognizes that “the forcible take-over of government by an Army, civilian or military group contravenes Articles 13(1) and 20(1) of the African Charter on Human and Peoples’ Rights.”Footnote 8 Similarly, Article 4(p) of the Constitutive Act of the African Union declares that the condemnation and rejection of UCGs is a fundamental principle of that organization. Article 5 of the ACDEG requires states parties to take all appropriate measures to ensure the constitutional transfer of power. Importantly, the coming into force of the Malabo Protocol would insert a new Article 28A into the existing (though still not in force) Protocol on the Statute of the African Court of Justice and Human Rights,Footnote 9 creating, inter alia, a new “crime of unconstitutional change of government.” Optimistically, this new international crime is to be adjudicated by the African Court and enforced by the African Union. This very act of internationally criminalizing persons who undertake UCGs also contributes directly to the prohibition of UCGs.
The ECOWAS system adds further depth to these norms as applicable within West Africa. Article 1 of the ECOWAS Supplementary Protocol on Democracy and Good Governance expresses the organization’s zero tolerance for UCGs within its area of geopolitical jurisdiction.Footnote 10 Article 20 of the same Protocol requires that the armed forces of ECOWAS member states be governed by “the legally constituted civilian authorities.”
Overall, on paper, the UCG prohibition under African regional international law is explicit, unequivocal, and robust.
Mechanisms for Implementing the UCG Prohibition in Africa
As robust as the normative framework prohibiting UCGs on the African continent is, it has never enjoyed an optimal record of real world implementation.Footnote 11 For example, the spate of military coups in West Africa over the last five years poses an arguably existential challenge to the survival of ECOWAS. This is mainly because of the greater-than-usual resistance offered by the relevant coup leaders to attempts by this regional grouping to enforce anti-UCG norms.
On the continental level, the AU has established a system imposing consequences in response to UCGs. Some provisions empower AU authorities to impose sanctions on governments or individuals that come to power through unconstitutional means. For example, Article 24 of the ACDEG mandates the AU Peace and Security Council (PSC) to “exercise its responsibilities in order to maintain constitutional order.” And Article 7(g) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union authorizes the PSC to “institute sanctions whenever an unconstitutional change of government takes place in a Member state.”Footnote 12
Other provisions impose institutional consequences, limiting offending governments’ voices at the continental level. For example, Article 30 of the Constitutive Act of the African Union requires that governments that come to power through unconstitutional means shall not be allowed to participate in the activities of the union. And under Article 25 of the ACDEG, if diplomatic efforts to revert to the status quo ante UCG fails, the state itself (and not just the offending government that came to power through a UCG) may be suspended from the AU by the PSC. The AU Assembly of Heads of States and Governments may also impose other types of sanctions on the offending state, or any other state that is proven to have instigated or supported the UCG.
Several African instruments also seek to enlist other African states and institutions in enforcement. Under Article 14(2) of the ACDEG, a duty of cooperation is imposed on states parties to punish those who attempt to remove an elected government through unconstitutional means. This could entail cooperation in the imposition and execution of sanctions, or in bringing them to a criminal trial (either domestically or internationally) as per Article 25(9) of the ACDEG. In the future, this could include a criminal trial within the proposed African Court of Justice and Human Rights.
Within West Africa, ECOWAS has also established similar mechanisms. Under Article 45 of the ECOWAS Supplementary Protocol on Democracy and Good Governance, the Authority of Heads of States and Governments may impose sanctions in cases of UCGs in member states. Upon the recommendation of the Mediation and Security Council, the Authority may decide to proceed with the matter under Article 45 of the ECOWAS Protocol on the Mechanism for Conflict Prevention, Management and Resolution. The main implication here is that—like the AU at the continental level—at the subcontinental level, ECOWAS is empowered to take steps to restore the elected or ousted government to power, including through the use of force. Remarkably, ECOWAS has indeed taken this kind of step in intervening in The Gambia in 2017, and recently threatened to do so against Niger in 2022 (albeit with problematic results).Footnote 13
Centrifugal Realities – Key Gaps and Challenges
The AU and ECOWAS regimes discussed above, designed to enforce their respective UCG prohibitions, have been activated in several cases, with a mixed record in restoring democratic rule.Footnote 14 More recently, the failure rate has been quite high, especially in West Africa. This was evident, for example, in ECOWAS’ efforts to sanction Burkina Faso, Mali, and Niger. Far from resulting in the restoration of democratic rule, these sanctions led these states to withdraw from ECOWAS altogether. These withdrawals occurred despite ECOWAS largely reversing the most severe measures it had originally imposed against those states.Footnote 15
Why has the record of efficaciously implementing the UCG prohibition been, on the whole, sub-optimal on the African continent, especially in recent years? And what gaps exist in the African normative frameworks and mechanisms for enforcing the continental prohibition on unconstitutional change?
The first gap is that the definitions of a UCG under African regional international law effectively give a pass to incumbent governments that were themselves brought to power via UCGs. The current governments in Egypt, Sudan and even Rwanda fit this bill. In addition, these definitions do not directly, or adequately, address or cover the phenomenon of UCGs launched against such governments themselves. Are, for instance, UCGs taken to overturn a prior UCG permitted? Would a UCG against any of these governments be covered by the relevant definitions, or not? This is unclear. A second and related definitional gap arises in cases in which incumbent—but non-democratically elected—governments have begun a credible transition to democracy but are overthrown in military coups before they could conclude this process. The situation in the Sudan between October 2021 and January 2022 fits this bill.Footnote 16 But here again, the available definitions of UCGs under African international law do not offer much guidance. Third, another question arises regarding the status under African international law of a UCG undertaken against an incumbent (but unconstitutional) government when the incumbent has been treated or accepted as lawful either by the domestic population or by, say, the United Nations. The recent example of the unsuccessful coup allegedly launched against the current military government of Burkina Faso is illustrative.Footnote 17
Another kind of gap relating to the definition of UCGs under regional African international law is that the AU definition is almost entirely process-based.Footnote 18 A key consequence of this orientation is that the definition (and thus its implementation) does not directly address or cover one of the most important and common anti-democratic phenomena on the continent. This is a situation in which an “elected” regime has in reality rigged itself into power and bribed or cajoled the domestic courts to issue orders declaring it to have been duly elected. Such allegations have long been credibly made in the Nigerian context.Footnote 19
Underlying these concerns is the broader observation that the UCG definitions at issue here tend to be problematically indifferent to the fact that not all UCGs in Africa are ethically undesirable. What of a UCG that removes an entrenched murderous, genocidal or highly repressive government from power?
The failure of the UCG definitions under African regional international law to address these scenarios is problematic. Such gaps result in loopholes that are likely to by abused by those who perpetrate UCGs in Africa to (continue to) escape accountability on the regional level. Moreover, without guidance on how to address such hard cases, African regional bodies are likely to have an even harder time than they already do implementing the UCG prohibition in a consistent and fair way.Footnote 20
Beyond these hard cases, the African anti-UCG frameworks are also beset by a series of shortcomings common to many international law regimes. Perhaps the most pronounced such shortcoming is the selectivity of the enforcement of the underlying norms. The strongest states on the continent (e.g., Egypt),Footnote 21 and in West Africa (e.g., Nigeria and Cote d’Ivoire), have tended to avoid accountability. This is evident, for instance, in the failure of either ECOWAS or the AU to respond meaningfully to the recent measures by Cote d’Ivoire’s incumbent president to amend the country’s Constitution in order to contest and win election for a third term—contrary to the then-governing Constitution.Footnote 22 This type of inconsistency or even double standard, which tends to be viewed by a significant share of the world’s population as unfair,Footnote 23 is capable of undermining the popular legitimacy of the anti-UCG regime itself, likely with dire consequences for its effectiveness.Footnote 24
Conclusion
Though not without its gaps, Africa’s regional anti-UCG framework is normatively and institutionally robust—far more so than the thin legal norms concerning democracy in general international law or in any other regional system. However, this theoretical strength contrasts with the reality of the framework’s quotidian implementation. Thus, the system remains constrained by both definitional gaps and fairness problems that risk undermining the legitimacy of the continental law of democracy. Ultimately, however, the robustness of the norms underpinning the African regional regime remains in itself an important (if qualified) victory for the continent. And from the perspective of general international law, the African system remains by far the most serious contribution to the advancement of democratic legal norms beyond the state.
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