This Article is written by Daniellah Akampwera, a Second-Year Law Student of Islamic University in Uganda, Kampala Campus

ABSTRACT

The recent military coups in Africa, particularly in West African Nations like Mali, Burkina Faso, Niger, and Guinea, have raised critical questions about whether such unconstitutional changes can ever be recognized as legitimate. Should a coup be considered valid when it overthrows a corrupt, exploitative, or ineffective democratically elected government? What should the oppressed citizens do? Should they be encouraged to resist a change of government even if their last option is a coup?

This article examines these critical questions by exploring why, in certain circumstances, coups might warrant recognition as legitimate, particularly when they arise as a response to abuse of power by a democratically elected government. This discussion reveals the situations where such drastic actions may serve as a last resort for seeking justice and protecting the rule of law, especially when citizens have been silenced. Therefore, this article aims to shed light on the complexities of governance in Africa and the fine line between rebellion for justice and unlawful seizure of power.

INTRODUCTION

A coup d’etat is often referred to as an unauthorized invasion of a town by soldiers who dismantle public order and then suspend the rule of law within their community. These putschists, having assumed power, sometimes drag the elected or appointed officials to jail without the benefit of a fair hearing or due process. [1]Sometimes, the overthrown leaders are detained incommunicado leading to their violation of their rights to liberty and security of a person. This creates a storm where the foundations of governance are shaken leaving people in a state of uncertainty and tension.

BACKGROUND OF UNCONSTITUTIONAL CHANGE OF POWER IN AFRICA.

Since the 1780s, oppressed people across the world have undertaken revolutions, coups, and various forms of resistance to liberate themselves from exploitative and unjust governments. In the 20th century, many African nations stood up against colonial rule to rid themselves of exploitative practices imposed by colonialists and pursue self-rule. Africans were yearning for freedom, equity, and the ability to handle their political, social, and economic affairs.

However, even after attaining independence, this never amounted to liberation as African rulers also became authoritative, and dictatorial and some even adopted exploitative tendencies reminiscent of the colonialists. This led to the rise of several coup d’états as Africans sought to remove exploitative leaders who had failed to uphold the principles of justice and the rule of law. For instance, in 1986, Uganda experienced a successful coup led by the National Resistance Army (NRM), which sought to liberate the country from oppressive regimes. Similarly, Nigeria experienced a coup in 1975, and Ghana underwent one in 1966 and both aimed to end corrupt and tyrannical regimes.

Most recently, Africa has witnessed another series of coups that aimed to address the challenges of governance and the persistent desire for change. These include the coups in Zimbabwe (November 2017), Mali (August 2020 and May 2021), Sudan (October 2021), Chad (April 2021), Guinea (September 2021), and Burkina Faso (January and September 2022). Therefore, coups can prove to be the source of change desired by the population itself as much as the international community as they can reflect the people’s frustration or grievances and their determination to fight for their rights or to reclaim the rule of law and the governance that truly serves their interests.

WHY LEGITIMISE COUPS?

Coups are generally considered unconstitutional and unlawful methods of seizing power under international law as they often disrupt the democratic process and violate legal frameworks.[2] They are usually seen as a direct challenge to the principles of sovereignty, the rule of law, and the orderly transfer of power which are core tenets of international norms and conventions.[3] However, this view often clashes with the inherent right of people to self-determination. This emphasizes that people have a right to determine their social, economic, political, and cultural Affairs.[4] When oppressive or corrupt democratically elected governments fail to meet the needs of their citizens, especially when they are silenced or left without a voice or recourse through legal or democratic means, the desire to reclaim their right to self-determination becomes a powerful motivator to resist change of power. This always happens in situations where people have been denied their right to freedom of expression and assembly, for instance, through suppressing peaceful demonstrations. People feel silenced and they opt for coups as their last resort to attain a new government with the hope that it might address their grievances. In the end, this creates a complex dilemma where the unlawful nature of coups intersects with the legitimate aspirations of oppressed populations seeking freedom and justice.

· Self-determination

Self-determination is often referred to as the will of the people and it is a fundamental principle that serves as a cornerstone of legitimate government authority. Generally, the authority of a government is rooted in the consent of the people and it can be expressed through periodic, genuine elections conducted by secret ballot or other free voting procedures.[5]However, a pressing question arises: what recourse is available to the people when a democratically elected government strays from the principles of democracy and fails to respect of rule of law?

The Malabo Protocol offers some guidance on this matter, as it implicitly acknowledges a right to peaceful resistance against undemocratic governments characterized by tyranny, oppression, or authoritative rule by defining an act of the crime of “unconstitutional change of government” to include a putsch or coup d’etat against a democratically elected government.[6] The implication is that a struggle waged by people according to the principles of international law for their liberation or self-determination from colonialism, alien subjugation, domination, and exploitation in all its forms and manifestations or from undemocratic governments against domestic oppression which results in a change of government should be excused from criminal liability for unconstitutional change of government. This perspective arises from the understanding that the right to self-determination and resistance against oppressive regimes is a fundamental principle, even if not explicitly codified under international law.

Most coups in Africa have been fuelled by exploitive and oppressive governments that violate human rights and engage in widespread corruption, or they introduce reforms that impose harsh living standards on citizens. For instance, the recent coups in West Africa emerged as a direct response to uncheck the corruption, dictatorship, abuse of human rights, and economic stagnation as people strive to liberate themselves from the grip of exploitative regimes.

Although there is no direct provision in international law that absolves such struggles from criminal liability, it can be discerned from how the African Union (AU) has responded to certain events in recent history. For instance, during the Arab Spring, the AU notably refrained from suspending Tunisia, Egypt, and Libya despite the unconstitutional changes in their governments. Further, the AU did not immediately suspend Sudan after the military takeover of power on 11th April 2019 following popular protests leading to the suspension of the constitution, the dissolution of the National Assembly, the formation of a military-led transitional government, and the arrest of President Omar Al Bashir.[7]

Therefore, when the relationship between a government and its people breaks down, the avenues for democratic change are systematically suppressed, and the right to self-determination becomes a powerful force as the only means for people to demand accountability, justice, and a return to a government that genuinely reflects their will force. Even though coups are not ideal solutions and often come with risks and challenges, they can sometimes be the only way for people to free themselves from oppressive authority and reassert their right to self-governance.[8]

CONCLUSION

Conclusively, coups d’états are generally viewed as unconstitutional under international law, however, there is a strong case for recognizing governments that come to power as a means of liberating oppressed populations. In situations where democratic channels such as peaceful protests have been blocked by authoritarian regimes, these coups may represent the only path for people to reclaim their freedoms. Therefore, recognition should depend on whether the new government genuinely reflects the will of the people and commits to upholding democratic principles and human rights. For example, many unconstitutional governments carry out elections later to respect the principles of democracy for instance, in Uganda and Burkina Faso the unlawful governments later carried out elections. This, therefore shows accountability of governance that serves the will of the people.

REFERENCES

1. The African Charter on Democracy, Elections, and Governance

2. The African Charter on Human and Peoples Rights

3. The International Covenant on Civil and Political Rights

4. The Universal Declaration on Human Rights

5. Daniel K. Pryce and Victoria M. Time, The Role of Coups d’états in Africa: Why coups occur and their effects.

6. Chike B.Okosa, Sovereignty and Choice of Government in International law: The Coup of Mali as a case study.

7. Christian Bjornskov, Coups and Economic Crises

8. ‘Failure of democracy’: why are coups on the rise in Africa? (ft.com)

9. Issa G. Shivji, the Jurisprudence behind the Right to Self-determination and the Right to Development in the African Charter for Human and Peoples Rights.

10. Professor Plasket, the Legal Effect of a Coup d’etat on traditional constitutional concepts accessed December 2001.

[1] Daniel K Pryce and Victoria M Time, the role of coup d’états in Africa: why coups occur and their effects on populace accessed on 9th July 2023.

[2] Article 2(4) , Article 23 of the African Charter on Democracy, Elections and Governance.

[3] The preamble of the African Charter on Democracy, elections and governance, professor Plasket, the legal Effect of a Coup d’etat on traditional constitutional concepts accessed December 2001.

[4] Article 20, the African Charter on Human and People’s Rights, Article 1 of the international Covenant on Civil and Political Rights.

[5] A/RES/211(111) accessed 10th December 1948.

[6] Statute of the African Court of justice and Human Rights, Article 28E (1) (a)

[7] AU Peace and Security Council, Communique, PSC/PR/COMM. (DCCCXL), Adopted by the Peace and Security Council at its 840th meeting held on 15th April 2019 on the situation of Sudan. http:www.peaceau.org/uploads/840-psc—communique-sudan.

[8] Article 20(2) of the African Charter on Human and Peoples Rights.