In the Service of Democratic Governance: The African Union Normative Framework on Unconstitutional Change of Government and ECOWAS Protocol on Good Governance and Democracy in the Post-Arab Spring

Introduction

At the turn of the century, Africa’s political landscape was characterised by instability and military authoritarianism that gradually gave way to constitutional democracy. During this period, many one-party states and military regimes embarked on democratisation and constitutional process. The dominant norm was constitutional democracy, which generally became the acceptable currency of governance. This period equally witnessed a continental renewal and commitment by African leaders to adopting the policy of total abhorrence for unconstitutional change of government, a novel and robust policy framework that was continentally adopted by the regional as well as sub-regional organisations. The then regional body − Organisation of African Unity (OAU) − began the foundational block and normative framework for a governance regime that is built on constitutionalism and democratic principles. The birth of the Africa Union from the OAU was later to consolidate the framework for undemocratic and unconstitutional changes of government. This was contained in its Lomé Declaration of 2000 and enshrined in the AU Constitutive Act (AU, 2000).

However, two or three decades into Africa’s renewed constitutional democracy, the scorecard revealed mixed results of little consolidation and reversals. The continent’s democratic and constitutional governance credentials revealed that some emerging or developing democracy had consolidated while some had reversed to unconstitutionalism. This reversal was more pronounced in the west African region which had recorded about 45.2% coups d’états, more than any other region in the continent (McGowan, 2003: 355, Striebinger, 2012). Unfortunately, the regional body, ECOWAS, had equally toed the line of the continental body on unconstitutional change of government. Its Protocol on Good Governance and Democracy strongly abhorred unconstitutional regimes, especially ones that derailed any democratic process (ECOWAS, 1999; ECOWAS, 2010).

The recent popular uprising (called the Arab Spring) in the northern African countries of Tunisia, Egypt and Libya (TEL), has in a way challenged the continent’s posturing on engendering constitutional democracy as well as ensured compliance with its framework on unconstitutional changes of government. Similarly, a recurrence of coups in the post-Arab Spring west African states of Guinea Bissau, Mali and Burkina Faso had put to test the political will and capacity of ECOWAS’s resolve to put an end to all forms of unconstitutional change of government. While the post-Arab Spring events in TEL countries have provoked debate as to the proper contextualisation of the AU’s framework on unconstitutional changes of government, the AU response has also been an issue of serious contestation. In the same fashion, the recurrence of coups in the west African region has cast a big doubt on the ECOWAS Protocol in terms of serving as deterrence or promotion of democratic values. Be as it may, the study intends to assess the AU’s Normative Framework on unconstitutional changes of government as it relates to the post-Arab Spring countries of Tunisia, Egypt and Libya. The study will also assess the ECOWAS Protocol on Democracy and Good Governance; specifically Article 1b which states that ‘Every accession to power must be made through free, fair and transparent elections’, and Article 1c of zero tolerance for power obtained or maintained by unconstitutional means in respect to the coups in Mali and Guinea Bissau (ECOWAS, 2001; ECOWAS, 2008; ECOWAS, 2009; Kane, 2008; Kufuor, 2002).

The study is divided into five sections. The first section is an introduction to the study. The second section explores the background, and of course the AU Framework on the unconstitutional changes of government and the ECOWAS Protocol. The third section provides historical background and contextualises the post-Arab Spring cases of unconstitutional changes of government. Furthermore, it situates the subsequent coups in Mali and Guinea Bissau within the ECOWAS Protocol. The fourth section provides a critique of both the AU and ECOWAS responses. The final section draws on the lessons learnt and offers concluding remarks on future occurrence.

Background to AU and ECOWAS principles on unconstitutional change of government

The founders of the contemporary African Union and the authors of its Constitutive Act have been commended as visionary as well as ingenious for a paradigmatic shift of the continental body from an outmoded and irresponsive Organisation of African Unity (OAU). The reasons for this commendation are not far-fetched. First, the OAU was conceived and designed to eliminate and liberate Africa from colonialism; this the regional organisation achieved with the liberation of South Africa which was in a way the last outpost of colonialism. The fall of apartheid was therefore seen as an end of history, given that liberation and decolonisation campaigns were considered as strong mobilising ideologies of the OAU. Second, Africa needed an immediate continental body that could provide appropriate response to the post-Cold War global politics. This was because new world politics were no longer built along bloc lines as globalisation dismantled Cold War era. Third, the developmental challenges of the continent could be driven with the post-independence continental body, the OAU. Fourth was the security challenges occasioned by the Rwanda experience and the need for a continental response.

While these reasons can at best be considered as issues, it must be noted that the new continental body was a sharp departure from what used to operate in the old OAU. The AU Constitutive Act expunged the clause of non-interference in members’ domestic affairs and empowered its Peace and Security Council (PSC) to intervene in conflict in member states. This is enshrined in Article 9 of the Protocol Relating to the Establishment of the PSC of the AU, which stipulates the role of the PSC thus: the PSC shall take initiatives and actions it deems appropriate with regard to situations of potential conflicts, as well as to those that have already developed into full blown conflicts. It is also empowered to intervene in a conflict for which a settlement has already been reached from escalating (Yabi, 2010; Omotola, 2011; Cowell, 2011).

There is no doubt that the ‘non-interference clause’ was one of the major impediments to the former continental body; its removal signalled a new era of ‘non-indifference’ (Williams, 2007). To many scholars, this clause was regarded as fundamental to the efficiency of the ‘new’ AU. Therefore, the era of interventionism equally gave way to a new position on democracy and constitutionalism. Within the thinking of the AU leadership, the absence of democratic order and popular participation has fuelled the recurring conflicts in the continent. The leadership recognised that the principles of good governance, transparency and human rights are essential elements for building representative and stable government and contribute to conflict prevention (OAU, 1997; Deng and Zartman, 2002; Tieku, 2009, Akude, 2009). Given the recurrence of political instability, coups and counter-coups, the AU through its Constitutive Acts came up with a framework supportive of democratic processes and outlawing unconstitutional takeovers of power, backed up with punitive measures in instances of violation (AU, 2002, 2003, 2006, 2008, 2009, 2010, 2011).

However, the clamour for unconstitutional changes of government is linked to the 1997 OAU summit in Harare (McMahon and Baker, 2006: 134, cited in Witt, 2013; Omorogbe, 2011: 127). This was in response to the forceful takeover of government in Sierra Leone at a period when President Ahmed Kabbah was attending the summit. The Assembly of Heads of State and Government and the Council of Ministers condemned the coup, called for the immediate restoration of constitutional order, asked the international community to refrain from supporting the coup plotters, and called upon the regional body ECOWAS to ‘assist the people of Sierra Leone to restore constitutional order’ (OAU, 1997; OAU, 1999).

Thus, the Harare condemnation marked a turning point in the history of coups in the continent that has been characterised by either indifference or tacit recognition by member states. So, the clamour for unconstitutionalism gained more momentum in the post-Harare Summit. Through the Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution that was established in 1993, the Central Organ of the OAU created a sub-committee that was given the mandate to look at unconstitutional changes of government (Witt, 2012b). In their subsequent meeting, the sub-committee came up with five scenarios that could be regarded as unconstitutional. These were:

When the Central Organ debated the propositions submitted by the sub-committee, it requested that the list of changes hitherto considered unconstitutional be extended to include electoral frauds, palace coups and discuss ‘all undemocratic changes’ (Witt, 2012a: 4). The sub-committee submitted the second framework on unconstitutional changes of government at the OAU summit in Lomé and it was at the meeting that the Assembly adopted a Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government called the Lomé Declaration. At the Lomé Declaration, the Heads of State and Governments of the Organisation of African Unity meeting at the Thirty Sixth Ordinary Session in 2000 had this to say:

Having undertaken a review of the Political Developments on the Continent and in particular the state of consolidating democracy in Africa, we express our grave concern about the resurgence of coups d’état in Africa. We recognize that these developments are a threat to peace and security of the Continent and they constitute a very disturbing trend and serious set back to the ongoing process of democratization in the Continent. We recognize 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. The phenomenon also contradicts and contravenes the position taken by our Organization in Harare in 1997 following the coup d’état in Sierra Leone, in which we unequivocally condemned and rejected any unconstitutional change of government. We reaffirm 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. (OAU, 2000)

In order to give practical effect to the principles they enunciated above, they agreed on the following definition of situations that could be considered as situations of unconstitutional change of government:

This was equally adopted by the Lomé Declaration. Because at the same summit in Lomé the AU Constitutive Act was adopted, the provisions of the Lomé Declaration were taken up in the latter, as well as later on in the Protocol Relating to the Establishment of the Peace and Security Council (AU, 2002).

Thus, Article 3(g) of the Constitutive Act mandates the Union to ‘promote democratic principles and institutions, popular participation and good governance’, while Article 4(p) defines the ‘condemnation and rejection of unconstitutional changes of government’ as one of the principles of the Union (AU, 2000). Furthermore, Article 30 stipulates that ‘Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union’, a situation in which the PSC is mandated to institute sanctions (AU, 2002: Art. 7 (1g)). The Protocol Relating to the Establishment of the PSC adopted in Durban, South Africa on 9 July 2002 empowers the PSC to institute sanctions whenever an unconstitutional change of government takes place in member states, as provided for by the Lomé Declaration and built on the punitive measures already adopted in cases of unconstitutional change which include among others:

A fifth element was added to the definition in the African Charter on Democracy, Elections and Governance, adopted in 2007, stating that any amendment or revision of the constitution or legal instruments is an infringement of the principles of democratic change of government (AU, 2007). This provision is aimed at preventing the constitutional tampering that enabled political office-holders to manipulate the constitution for their selfish ends. This was done by Presidents Yoweri Museveni of Uganda and Biya of Cameroon to outstay their two terms of office.

To further strengthen these instruments, the PSC finally established the committee on sanctions on 13 March 2009 in conformity with the provisions of Article 8(5) of the PSC Protocol (Omotola, 2011). This considerably expanded the powers of the PSC to use sanctions once the Democracy Charter entered into force (as of 27 January 2011 the Charter had eight out of the required 15 ratifications) (Sturman, 2011).

Despite the Lomé Declaration and its adoption by the AU Peace and Security Council (PSC) in 2004, the African Union has reacted to eight coups d’état: in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), Niger (2010), Mali (2012), and Guinea Bissau (2012). Many scholars posited that while the Lomé Declaration narrates the development of the anti-coup norm as interventions in defence of democracy, the AU response has triggered critique both in terms of an observed inconsistency in the reactions as well as with regard to the neglect of root causes and a general focus on reactive as opposed to preventive strategies (AU Commission, 2010;Hayatou 2010; Ikome, 2007; Engel, 2010; Souaré, 2009; Sturman, 2008, 2010; Vandeginste, 2011, cited in Witt, 2012). Witt further questioned the reasons for this inconsistency which is often left unaccounted for. However, attempts will be made in the later part of the study to provide a reasonable understanding of the reasons for the inconsistency.

The AU Framework on unconstitutional changes of government was not perfect. Nevertheless, it was a bold and novel attempt to consign the regime of coups, tenure elongations and subversion of democratic processes to the dustbin of history. In fact, the attempt was not only institutionalised at the regional body, the sub-regional organisations within the continent also created frameworks and protocols for its institutionalisation.

In particular, ECOWAS, a regional organisation in the western part of Africa, initially made up of 16 member nation but now 15 after Mauritania withdrew its membership. ECOWAS unarguably is a haven of coups and counter-coups. It has recorded more political and constitutional instabilities than any other region in Africa. In fact, as at 2003, it had a record of 45% of all coups in Africa (McGowan, 2003:355) and since 2003, all the coups in Africa except in Madagascar were recorded in the region. The ECOWAS region has exhibited two of the four scenarios considered as unconstitutional changes of government. These are:

The first scenario is a common trend of unconstitutional changes of government in the region. The second was recorded in Côte d’Ivoire during the regime of President Laurent Gbagbo; as an incumbent, President Gbagbo refused to hand over after clearly losing the election. Despite ECOWAS undemocratic changes of government credentials, the regional body has been at the forefront of the institutionalisation of unconstitutional changes of government. For example, its Protocol on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Resolution, Peacekeeping and Security, provides in Article 1 (b-e) thus:

However, recent uprisings (Arab Spring) in the north African countries of Tunisia, Egypt and Libya (TEL) led to the collapse of both constitutional and autocratic regimes. The Tunisian and Egyptian revolts led to changes of what can be described as constitutional government but the Libyan scenario was completely different because the political situation in Libya was neither democratic nor constitutional, it was purely an autocratic but legitimate regime. However, the revolution in Libya degenerated to armed rebellion and this calls for proper contextualisation within the AU’s framework of unconstitutional changes of government. The study therefore posits if it could be proper to conclude that the armed rebellion in Libya was an unconstitutional attempt to change a regime that was recognised as legitimate. Furthermore, how did the AU respond to the Tunisia, Egypt and Libya regime changes considering the provision or definition of the AU’s unconstitutional changes of government?

While the changes in government did not stop with the TEL countries, the west African region in the immediate post-Arab Spring was also engulfed in quite a number of unconstitutional changes of government. In Mali, Guinea Bissau and Burkina Faso, the changes were made through coups, a legendary method of regime change that has gained notoriety in the region but which the regional body ECOWAS has fought to delegitimise. The coup in Mali and the 2015 coup crisis in Burkina Faso were however perceived as a setback and unexpected. They were closely associated with the fallout of the Arab Spring. But the Guinea Bissau coup was not unusual; the country is notoriously known for regime instability and coup.

The post-Arab Spring and unconstitutional changes of government in north Africa and the ECOWAS region

Many Western scholars have argued that the Arab Spring was a revolution. This position is however debatable. For some African scholars, the north African Spring was beyond mere prescription of a revolution. It was deeper and fundamentally evolving. In this study, we will not attempt to join this side of the debate and will be contented to describe the Arab Spring as a popular uprising or revolt. Indeed, the popular uprising that began in the city of Tunis can be described as spontaneous, dramatic and eventful. Though unprecedented and popular, the popular demonstrations that eventually engulfed Tunisia and spread to Egypt and Libya led to fundamental changes in the pattern of governance in north Africa. These protests demanded greater political freedom, economic opportunity, and an end to systemic corruption; they resonated deeply across the three countries and sparked calls for change throughout the continent (ACSS, 2011). The Report of the Africa Centre for Strategic Studies (ACSS) states that in the months following the launch of the Arab Spring, there were protests in more than a dozen African capitals calling for greater political participation, transparency and adherence to the rule of law (ACSS, 2011). In their judgement, the spillover or contagious effect reverberated in the countries of Burkina Faso, Uganda, Sudan, Gabon, Cameroon, Nigeria, Malawi, Senegal and Mauritania. These protesters drew direct parallels with Egypt and Tunisia and Libya.

While the above position requires no validation, it is important to note that the uprisings in Tunisia, Egypt and Libya (TEL) carried more weight in the understanding of the AU’s Lomé Declaration on unconstitutional changes of government than ever. In this section of the paper, we intend to properly contextualise the Arab Spring within the Lomé Declaration on unconstitutional changes of government. We are therefore confronted with question like can the Arab Spring in the north African countries of TEL be described as unconstitutional or constitutional? And if yes or no what is or are the response(s) of the African Union on the issue? In a similar fashion, the coups in the west African nations of Mali, a country with enviable decades of democracy, and Guinea Bissau, one of the poorest countries in the world, were both decried as unconstitutional and unacceptable by ECOWAS and AU. These coups clearly presented an analytical platform for a proper assessment of the regional body’s Protocol on Democracy and Good Governance.

Though the Arab Spring in north Africa was dramatic and spontaneous, its impact now appears to have redefined the contour of governance within the region. While it may be difficult to completely draw concluding remarks on the uprising, the unfolding drama continues to shape Africa’s governance landscape. The uprising began in the city of Tunis and quickly spread to the city of Cairo and Benghazi in Libya. The demonstrations led to the overturning of a century of autocratic rule and demanded greater political freedom, economic opportunity, and an end to systemic corruption (ACSS, 2011).

In a synopsis, it is therefore imperative to examine the nature and dynamics of the revolution within the context of unconstitutional changes of government. The Arab Spring in north Africa began in Tunisia and quickly uprooted the regime of Zine al Abedine Ben-Ali who had been in power for about three decades. Though his regime was autocratic in nature, nonetheless, it was a constitutionally elected regime. The popular revolt ended his regime but not without his hurried exit and eventual handover to the Speaker. The handover was done within the stipulation of the constitution of the country. Therefore, the succession process did not in any form contravene the AU’s framework on unconstitutional changes of government. Just like the Tunisia case, Egypt was under the democratically elected President Hosni Mubarak when the popular protest birthed in Cairo. Like Ben-Ali, Mubarak had been in power since the death of Anwar Sadat in October 1981. The uprising was later to put an end to his regime. However, Mubarak is perceived to have been pushed aside by the military in collaboration with the dominant powers (Mehari, 2012). But because of the powerful military institution, power was handed over not to the Vice-President or the Speaker as the Egyptian constitution stipulates, but to a military council. This act was a case of unconstitutional regime change and therefore negates the AU Framework.

As stated earlier, the Tunisian case fell within the definitional framework of constitutional changes of government, because power was transferred to the Speaker in line with the constitution. The Egyptian transfer of power to a military council harbours elements of unconstitutional change of government and this negated and contradicted the AU Framework (Mehari, 2012). Unfortunately, the Mubarak regime had just been elected only weeks earlier. Consequently, it is official, the referee and kingmaker in Egypt’s post-Mubarak upheavals, the Egyptian army, has now one of its own as the country’s new president. Former army chief Abdel Fatah el-Sisi has overwhelmingly won the presidential election held on May 26−28, gaining around 93% of the votes cast. As the last major component of the processes meant to bring the military-dominated transition of post-Morsi Egypt to a close (by having an army man as president), this election marks the last chapter in the ruling political elite’s efforts to return Egypt back to normal politics. It is to be recalled that riding on massive protests that erupted in Egypt on 30 June 2013, the military took the decisive step of removing Egypt’s first democratically elected President Mohamed Morsi on 3 July 2013. Although many in the international community did not condemn it, neither did they welcome the ouster of Morsi. Indeed, Egypt’s international relations, including with its major ally the US, soured following Morsi’s removal and the suspension of Egypt’s 2012 constitution. Most notable in terms of international action was, the AU’s principled decision on 5th July 2013 suspending Egypt’s membership of the Union. The AU treated the ouster of Morsi as an unconstitutional change of government, prohibited in its various instruments and to which Egypt had subscribed. Under the Lomé Declaration of 2000, unconstitutional change of government was defined. In its decision, the AU did not specify which of one of the four instances listed under the Lomé Declaration applies to Egypt. Despite this omission and the reluctance of AU officials at the time to call it a coup, it was generally considered that the overthrow of Morsi, although backed by huge popular support, was a military coup.

In the Libyan case, the revolution was a marked departure from the events in Tunisia and Egypt. It degenerated into armed conflict with foreign intervention. But given the autocratic nature of the Gaddafi regime, it was neither a democratically elected government nor an illegitimate government. To therefore define the regime within the AU’s framework of unconstitutional government was problematic. As Sturman (2011) noted, the uprising against Gaddafi was easier to exempt from the definition of unconstitutional changes of government than those against Mubarak or Ben Ali. This is because Gaddafi has never held so much as a charade of elections since coming to power in 1969, disqualifying Libya from even the broadest definition of a ‘democratically elected government’. But the Libyan case was purely an armed conflict and the overthrow of Gaddafi was also done in similar fashion. Within the definition of the AU Framework on unconstitutional changes of government, regime change through armed rebellions by the military, ‘armed dissident groups’ or rebel movements is therefore unconstitutional and unacceptable. While it is therefore difficult to label the Libyan case as constitutional change of government on the one hand, it also fits into the classification considering that the regime was toppled by armed rebels. In its decision, the AU did not specify which of one of the four instances listed under the Lomé Declaration applied to the case of Libya. Despite this omission and the reluctance of AU officials at the time to call it a coup, it was generally considered that the overthrow of Gaddafi, although backed by huge popular support, could also satisfy the definition of unconstitutional change of government.

North African and west African regions were once dominated by military heads of state, the majority of whom came to power through the usurpation of constitutional order. Therefore, the issue of undemocratic succession to power was not foreign to the region. However, since ECOWAS adoption of the Protocol on Good Governance and Democracy, the region has recorded quite a number of coups. In the immediate post-Arab Spring, the states of Mali, Guinea Bissau and Burkina Faso have been involved in what the AU and ECOWAS term unconstitutional changes of government. It is on record that no regime in Guinea Bissau has completed its term (Akenroye, 2012).

The coup in Mali was perceived as unusual for two major reasons. One, Mali has a history of democratic stability having last experienced a coup in 1991; thus, it was believed that democracy had reached a level of consolidation. Second, Mali was expecting an election at the end of April 2012 with the incumbent ready to step down without contesting. The momentum for coup was informed by the internal political tension, corruption, and the inability of the Malian army to suppress the rebellion in the north after the fall of Col. Muammar Gaddafi in Libya. The crisis in Libya created a flood of weapons into Mali, bolstering a longstanding rebel movement in the country’s vast desert north and delivering many defeats to Malian forces. According to the mutinous soldiers and the leadership of the coup, they cited the poor way Mali’s government was confronting the rebellion and complained about being underequipped for the fight. The argument of whether the Malian case was unconstitutional change of government did not arise. The argument here lay in the postponement of elections in Mali in view of the rebellion in the north, which is an unconstitutional change of government. It was purely a coup and undemocratic means not after the constitution was suspended. The response of the ECOWAS was also to reflect their rhetoric of zero tolerance as this paper will show later.

If one can describe the Mali coup as a setback and unexpected, the Guinea Bissau coup did not fit this description. Guinea Bissau is a small nation in the west African region and one of the poorest states in the world. It is politically unstable and notoriously considered as a haven for drug barons. The history of Guinea Bissau is therefore associated with coups. On 12 April 2012, Guinea Bissau as usual experienced another coup d’état, its second in two years. Like Mali that was expecting an election, Guinea Bissau was in the middle of an election that had already gone through the first round. The coup d’état was staged by elements of the armed forces about two weeks before the second round of a presidential election between Carlos Gomes Junoir and Mohammed Iala Embalo (Ojeme, 2012:23-24). The reason for the intervention was neither logical nor acceptable. It was the usual intervention carried out by drug barons, supported by the military, who perceived a threat to their narcotic business. Again, to argue whether the coup negates the AU Framework and the ECOWAS Protocol on unconstitutional changes of government is unnecessary. The coups in Mali and Guinea Bissau in the post-Arab Spring were clear cases of unconstitutional changes of government.

The responses of both the AU and ECOWAS to the cases of the TEL countries and Mali and Guinea Bissau deserve bolder and critical analysis. This is to allow for proper assessment of the workability, gaps and challenges within the Framework and Protocol with a sole aim of providing options for stronger democracy and putting an end to future unconstitutional changes of government.

AU and ECOWAS responses, challenges and options to unconstitutional change before and after the Arab Spring

Since the Harare Summit, the AU and ECOWAS have made serious and spirited attempts to put an end to any forms of unconstitutional changes of government. The continental body and its sub-regional organisations have evolved, redefined, adopted and expanded the frameworks outlining what constitutes unconstitutional changes of government. According to many writers, this attempt is considered as bold and novel, considering the evolution of the continental body from its adopted policy of non-interference to indifference and now to what we may call responsibility to interfere (R2I) or policy of non-indifference.

Thus, as at 2015 and since the establishment of the Peace and Security Council (PSC) in 2004, the African Union has reacted to nine coups d’état: in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), Niger (2010), Mali (2012), Guinea Bissau (2012).and Burkina Faso (2015). Similarly, the ECOWAS as a regional body has shown what could be described as the most potent reaction to unconstitutional changes of government. The military intervention in the restoration of the Tejan Kabbah regime in Sierra Leone marked the beginning of its zero tolerance to undemocratic changes of government. Despite these strong efforts, the continent and the sub-region has not been totally cured of its undemocratic changes of government though the continent had seen a geometrical progress in democratic governance.

While this is noted, one questions why the AU Framework and ECOWAS Protocol have not successfully served as deterrents to undemocratic or unconstitutional changes of government even in the post-Arab Spring era. Could the answer be located in the responses that greeted past and present forms of unconstitutional changes of government in both the continental and regional bodies? Or could it have been what Sturman (2011) described as an observed inconsistency in the reactions as well as with regard to the neglect of root causes and a general focus on reactive as opposed to preventive strategies (see Ikome, 2007; Engel, 2010; Souaré, 2009; Sturman and Hayatou, 2010). To answer this question depends on the kind of responses in both the historic and present contexts. We have therefore focused on the post-Arab Spring responses to changes of government. Nonetheless, by February 2011, the AU Peace and Security Council (PSC) had issued two of its strongest statements ever made in support of the ‘legitimate aspirations’ of the people of Egypt and Libya and condemning violence and violation of international humanitarian law against civilians in Libya.

At the beginning of the uprising in Tunisia and Egypt to the point where it degenerated into bloody conflict in Libya, the AU response was close to silence and when the AU leadership was to make a pronouncement on the unfolding events in Libya, the rhetoric of silence was also heard rather than condemnation. However, African members in the UN Security Council did support UN Resolutions 1970 and 1973.

The PSC communiqué of 16 February 2011 sided unequivocally with the protesters and against the Egyptian government, expressing ‘AU solidarity with the Egyptian people whose desire for democracy is consistent with the relevant instruments of the AU and the continent’s commitment to promote democratization, good governance and respect for human rights’ (Sturman, 2011:16-17). Similarly, on 23 February 2011, in a statement issued on the situation in Libya, the PSC ‘strongly condemns the indiscriminate and excessive use of force and lethal weapons against peaceful protesters, in violation of human rights and international Humanitarian Law… [and] underscores that the aspirations of the people of Libya for democracy, political reform, justice and socio-economic development are legitimate’.(African Union Peace and Security Council (AUPSC), 2011) The language of these two communiqués is perceived as remarkable because Egypt and Libya are regarded as two of the AU’s ‘big five’ members, each responsible for paying 15% of the organisation’s ordinary budget (Nigeria, Algeria and South Africa are the other three members). All the more remarkable is that at the time the PSC included some of the most authoritarian states on the continent: Equatorial Guinea, Zimbabwe, Chad and Libya itself. This demonstrates that the principle of democracy promotion has reached a level of institutionalisation within the AU.

Having read Sturman’s views on Francis Ikome’s argument on ‘good coups’ and ‘bad coups’, one cannot but advance the case of good coup against bad government or bad coups against good government in the proper contextualisation of the AU Framework and ECOWAS Protocol. The ‘Good Coup or good revolution against Bad Government or bad coups or revolutions against good government’ theory is quite fascinating but this needs to be explicitly defined. But ‘Good coups’, in which the overthrow of bad governments is met with jubilation on the streets, which Sturman argued could present a ‘dilemma’ for the AU’s ‘blanket injunction’ on unconstitutionalism, may not necessarily translate to good coup. Popular jubilation is not tantamount to acceptability or legality. While one agrees that they are regimes of bad government who may not respect the rights of the people and may trample on their rights, a more democratic means must be designed to change such a regime. Otherwise, the AU through its peer review mechanism may use the option of pressuring the regime to abdicate power.

Again the constitutionalism on which the AU’s democracy promotion is founded does not currently provide for an adequate response to popular democratic uprisings. The events of early 2011 demonstrate the limitations of the AU’s architecture for promoting democracy (Sturman, 2011:18). Taking to the streets to remove a head of state from power is clearly an unconstitutional change of government, since constitutional democracy only allows for the removal from power by elections. A fine line lies between a spontaneous expression of the will of the people and mob rule, since the people’s will may be determined haphazardly by estimation of numbers and not by an accurate vote (Sturman, 2011:16; Legler and Kwasi, 2010).

The west African region was once dominated by military heads of state, the majority of whom came to power through the usurpation of constitutional order (Striebinger, 2012). Therefore, the issue of undemocratic succession to power was not foreign to the region. However, since the Arab Spring, there have been coups in the west Africa region. The position of the regional body on recent coups in Burkina Faso, Mali and Guinea Bissau was conformed to the principles in its Protocol for Good Governance and Democracy. The immediate response of the regional body was not totally different from its usual position in similar situations − greeted with condemnation, suspension and pleas to return to constitutional order. However, a new dimension introduced was a call for military intervention if diplomatic efforts failed. For example, in Mali, weeks of sustained pressure for a return to constitutional order were partly backed by a subtle threat of military intervention; this might have influenced elements of its military towards a reversal of the forceful takeover of government to an arrangement that appeared to be democratic.

As in the case of Mali, the regional body once again bared its fangs against the military junta in Guinea Bissau, which took power through unconstitutional means. The body, through the president of the ECOWAS Commission, Désiré Kadré Ouedraogo, reiterated the community’s opposition to the military coup and its determination to see the restoration of constitutional order. In a statement on 12 April 2012, in Yamoussoukro, the capital of Côte d’Ivoire, Ouedraogo registered disappointment with the timing of the coup attempt, coming just days after a joint ECOWAS-AU-UN mission met with the military hierarchy to warn against any temptation to disrupt the ongoing electoral process.

While the Commission firmly denounced this latest incursion by the military into politics and unreservedly condemned the act, it demanded the immediate restoration of constitutional order to allow for the completion of the ongoing electoral process. The African Union, to which ECOWAS member states belonged, also took a cue from the regional body to denounce the junta, with threats of further action against the coupists. However, ECOWAS later dispatched a delegation to Guinea Bissau to meet with the junta and demand immediate restoration of constitutional order.

The refusal of the junta in Guinea Bissau to heed the advice of the community to go back to the barracks has so far attracted economic sanctions from ECOWAS and AU, the sort of action that forced the hand of the Malian coupists to relinquish power to the new civilian transition government led by the country’s Speaker of Parliament. The tough stance of the body against the junta in Mali was a resolve of ECOWAS not to tolerate usurpation of power. This position has gradually seen the return of Mali to constitutional order and the junta in Guinea Bissau has followed the same path.

There is no doubt ECOWAS has been very forceful and ready to intervene in any member state by whatever means to restore constitutional order; this is a major shift from its traditional position of indifference and tacit support accorded to coups and unconstitutional or undemocratic changes in government. The recent examples − successes recorded by piling pressure on the junta in Mali to recant and Guinea Bissau − can be regarded as major impacts on the enforcement of the protocols.

Finally, following the not unexpected coup on 16 September 2015, Burkina Faso has been plunged into a constitutional crisis and political turmoil. And as result of the mass protests in Burkina Faso, Blaise Compaore, the country’s president for over 27 years, resigned and fled the country. Following this, the military seized power on the premise that it wanted to restore order and was not interested in ruling long-term. This seizure was contrary to both Burkina Faso’s and the AU’s procedural norms following the resignation of a president and was no less a violation than Compaore’s earlier attempts to amend the constitution in order to prolong his reign. The actions taken by the military were arguably against the will of the people, who protested against military rule and were harshly restrained by troops. The AU gave the military two weeks to restore civilian government or face sanctions; this was the first time that the organisation did not use sanctions from the outset, following an unconstitutional change in government. The military restored civilian rule one day before the sanctions were to be actioned. This was eagerly applauded by the AU as a positive move forward.

However, in light of events (notably, the appointment of Lieutenant Isaac Yacouba Zida as prime minister), it is worth considering whether this praise was too hasty and whether the AU perceived that the actions by the military, only a few hours before the deadline, were a superficial move to avoid sanctions. Additionally, the AU’s actions went against their own norms and this creates confusion as to what the organisation’s policy is in these scenarios. The AU has previously emphasised its rejection of unconstitutional changes in government and stated that it would take firm action on seizure of power by illegal means. However, the AU was slow to identify Burkina Faso as a crisis situation despite early signs of turmoil before the resignation of Compaore, and was weak in demanding an immediate release of power by the military. One could have argued that this suggests that its claims are superficial and that its policies need reviewing. There have been calls for a need for AU policymakers to clarify the organisation’s position on leaders who attempt to change their country’s constitution for personal gain and how to take early action in response to protest movements in order to avoid crisis situations as well as unconstitutional changes in government. This will be particularly relevant for other African countries who may, in the near future face similar challenges and who will likely look for guidance from the AU’s stance on protocols of good governance and transfer of executive power.

Concluding remarks: Lessons and options

In the event of the Arab Spring and emerging dramas in TEL countries, the AU Framework in particular has demonstrated the shortfall and gap in the definition of unconstitutional changes of government. Neither of the cases in Egypt and Libya could be adequately explained. On the other hand, the ECOWAS Protocol may have similar pitfalls but the scenario in Guinea and Mali did not give this study a proper analysis of the possible scenario in the eventuality of popular revolt. The revolution and popular protest were not adequately addressed.

The continent has advanced democratic governance but it is also important to contextualise a growing divergence in support for these principles in respect to the events in TEL countries. The intervention of the West and the Arab league has made AU look like an unresponsive body. Both the West and the Arab league disregarded the AU on the revolt in Libya. Its strategy for intervention was not only ignored, the Union was totally disrespected. Again, the AU has been perceived as not generally being at the forefront of recent democratic breakthroughs. The AU was surprised by and unable to organise a common position regarding the popular uprisings in Egypt and Tunisia. Subsequently, it was awkwardly late in recognising Libya’s National Transitional Council (NTC) relative to virtually every other relevant international organisation.

This shows the AU to be less supportive of democratic change than the Arab League. In fact the AU was out of step with its own membership with 22 African states recognising the NTC before the AU finally did. A similar, though less stark, pattern emerged in the post-election standoff in Côte d’Ivoire. Whereas ECOWAS took an early and decisive stand in support of the election outcome, the AU position was more equivocal.

However, ECOWAS responses even before the Arab Spring have been commendable. One must recognise the potency of condemnation by the body and the capacity to deploy force and sanctions as elements of greater commitment to democracy. Its threat to launch military intervention in case of non-compliance with a return to democratic process has produced positive results. (Sierra Leone, Togo, Mali, Guinea-Conakry, Niger, Guinea Bissau and Burkina Faso were at one time threatened with sanctions and military intervention if return to democratic order fails). In addition to the above cases, ECOWAS regularly and proactively deploys members of its Council of the Wise, its Mediation and Security Council, and regional police personnel to defuse political crises and monitor elections in the sub-region. This has all helped raise the bar that political authorities in west Africa must meet in order to be recognised as legitimate. This commitment has made west Africa a locus of democratic reform. While the continental and sub-continental bodies need review of their jurisprudence against unconstitutionalism, the need for periodic review of the framework of what constitutes unconstitutional changes of government is always necessary. It must also devise practicable means to create systems of sanctions on violators of its protocol on unconstitutional changes of governments.