The North African Uprisings under the African Union ‘s Normative Framework 1

A year or so after the North African uprisings that took every body by surprise, it is now time to critically examine the nature of the uprisings, their causes and consequences, and AU’s response. The paper discusses the current events in North Africa vis-à-vis the AU’s normative frameworks related to constitutionalism and democracy. The AU has four major normative instruments dealing with revolutions, mercenaries and unconstitutional changes of government. These are the African Charter on Democracy, Elections, and Governance (the Addis Charter) and the Lomé Declaration of July, 2000, on the Framework for an OAU Response to Unconstitutional Changes of Government (the Lomé Declaration) , as well as the 1977 OAU Convention for the Elimination of Mercenarism in Africa (the OAU Convention on Mercenarism). Does the Lomé Declaration on Unconstitutional Changes of Government apply to revolutions? Do the events in North Africa constitute revolutions? Are all uprisings the same? And what are their implications on the above-mentioned AU policies, on governments and international actors in Africa? It is only against the background of these questions that one can understand why the AU responded to the uprisings the way it did. To answer these questions and understand the manner in which AU’s normative frameworks dealt with events in the North Africa, the Peace and Security Council and the Permanent Representatives Committee of the AU convened a briefing on 11 July 2011. The present paper is an updated version of a paper presented at this session.

In this brief paper, it is argued that no tension exists between revolutions and the AU normative frameworks. Revolutions should be viewed as extra-constitutional, different from unconstitutional events. Both the letter and the spirit of AU’s normative frameworks support demands asserting the general will of the people. Taking the principle of interpretation based on the object and purpose of law, AU’s normative frameworks aim at entrenching constitutionalism and establishing constitutional regimes in Africa. The paper explains how and why the Lomé Declaration and the Addis Charter do not proscribe revolutions necessitated by unconstitutional governance in a country. More particularly, it argues that existing AU normative frameworks are adequate to address events such as the North African uprisings, so that there is no lacuna in the normative frameworks. The AU’s major shortcomings remain its inability to swiftly respond to crises in Africa, as well as weaknesses to effectively implement its normative frameworks and decisions. For an effective implementation of norms already in existence, the author recommends the adoption of a moratorium to end norm-setting by mobilizing all AU resources towards norm-implementation and supervision.

In order to assist the decision-making organs of the AU when faced with uprisings similar to those in North Africa, the author further proposes what one may call “the credibility test”, based on the existing AU normative frameworks. To the extent that public protests enjoy massive popular support and meet “the credibility test”, they remain within the rights of people to revolution. The “credibility test” needs to fulfil three substantive conditions: systemic violations of substantive human rights, violations of the trust of the people and the absence of constitutional mechanisms of redress, including peaceful means of changing a government in power as assessed by the population directly affected and the wider opinion of the international community – the UN, AU, EU and other governance institutions. The “credibility test” thus needs to enjoy both recognition, by the international community, and essentially internal endorsement by the people affected. When these conditions are prevalent, the people have the right to change the government constitutionally, when possible, and extra-constitutionally through revolution when necessary

The “Credibility Test”

This paper argues (1) that revolution is considered as the birth right of people to change their government when other amicable and constitutional means of replacing that government does not work for whatever reason; (2) that revolution is an extra-constitutional legitimate means of replacing a government when change of government is made impossible through constitutional means; (3) that the object and purpose of the Addis Charter and the Lomé Declaration is mainly the promotion of constitutional governance; (4) that the popular protests in North Africa (particularly the Tunisian and Egyptian cases) fulfil most of the basic elements of a revolution; and (5) that, therefore, these popular protests are not only compatible but also within the spirit of the Addis Charter and the Lomé Declaration. As far as public protests enjoy massive popular support and meet the “credibility test”, it is the right of the people to participate in a revolution. The “credibility test” ensures that the legitimacy of revolutions cannot be questioned; in other words, it is a post-revolution government legitimacy certification. It offers a test that policy making organs such as the AU could apply when they determine a change of government as revolution or unconstitutional. Indeed, ‘the credibility test’ could also be used as criteria for determining the credentials of governments after revolution in similar manner to the working principles of the UN Credentials Committee. In so doing, it serves as an instrument to ensure constitutional democracy by proffering a mechanism to deal with revolutions that are hijacked by military or other organized but unelected groups.

Implicit in the “credibility test” is the assumption that governments do not have the license to treat their citizens as they wish. Constitutionalism provides inbuilt constraints on a government in power in the sense that governments should continuously enjoy the mandate of the general public. The “credibility test” also justifies uprisings against a government when and where the above three substantive conditions and two kinds of endorsement are met. A change of government under such circumstances ensures that it is not unconstitutional changes of government as indicated in the Lomé Declaration or the Addis Charter.

In the opinion of the author, the AU needs to urge its member states to enable their populations to express their concerns and legitimate aspirations for better governance and performance from their governments. Noting that the most challenging days of democratization in Africa still lie ahead, the paper concludes by recommending a more robust engagement by the AU and its various organs than ever before. This should be guided by the various AU human rights treaties and the provisions of the Addis Charter as well as the Lomé Declaration.

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