By Tim Drunkenmölle (Intern in the Research Department at Foundation for Human Rights Initiative)

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Jaiman Singh (Student at the University of British Columbia and intern in the Research Department at Foundation for Human Rights Initiative) 

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Fred Sekindi (Director Research and Advocacy and Lobbying at Foundation for Human Rights Initiative)

The armed usurpation of government in Zimbabwe draws us back to old ways of violent struggles for political power that the continent has rarely witnessed in the last decades. The recent innovation of African leaders has been the manipulation of constitutional orders to retain power. Such manipulations have been justified by the illusion of elections. Thus, in Rwanda, Uganda and the Democratic Republic of Congo, the incumbents have removed constitutional constraints on the presidency arguing that the citizens can vote them out of power, if they choose so. In the case of the Gambia, Yahya Jammeh’s refusal to give up power, after he lost the presidential elections, demonstrates the resolve of the ‘Big Men of Africa’ to hold on to power against the will of the people. All these actions have been declared unconstitutional changes of government by the African Union, yet its responses to these undemocratic acts vary.

Following the end of colonialism, many African countries experienced violent seizures of power through military coups resulting in unquantifiable loss of life. This is despite post-colonial Constitutions providing for elections as the only lawful way of transferring political power. African countries that endured bad governance in the aftermath of colonialism at the hands of African leaders sought to adopt new Constitutions that provide limitations on exercising power. Thus most Constitutions of African countries, adopted in the last 30 years provide limitations on the presidency. However, the continent has witnessed a wave of constitutional disparagements aimed at entrenching power by removing limits of the presidency.

In this context the three main challenges to democracy, good governance and stability in post-colonial Africa are military coups, failure to respect and conduct meaningful elections and amendments of Constitutions to embed monarchical rule. Recognising the instability that these challenges pose to the continent, the African Union adopted the African Charter on Democracy, Good Governance and Elections, 2007. The Charter recognises that the transition of power through a military coup or armed intervention, the overstaying in power by the incumbent government after being voted out of office and the amendment or revision of the Constitution or other legal instruments in a manner that infringes on the principles of democratic change of government as “unconstitutional changes of government”.

The Charter provides for sanctions by the African Union in all above-mentioned cases, however the response by the African Union paints a different picture. The manipulation of the Constitution to maintain power is widely ignored by regional organisations, whereas military coups as well as the prolonging of power are criticized and sanctioned. Although the military in Zimbabwe has denied orchestrating a military coup , the African Union has responded by, urging the parties to resolve the situation in accordance with the Zimbabwean Constitution as well as the African Charter on Democracy, Elections and Governance and warning the military of the possible sanctions. Similarly, the Economic Community of West African States (ECOWAS) as well as the African Union intervened resolutely when the former President of the Gambia, Yahya Jammeh, refused to accept the outcome of the presidential elections held on the 1st of December 2016.

The African Union Peace and Security Council explicitly pointed to violation of the Charter by Jammeh. In contrast, the African Union has turned a blind eye to the third method of unconstitutional change of government by means of clasping on to power by manipulating the Constitution, in countries including Burundi, Uganda, Rwanda, and Congo Democratic Republic among others. Sparked by the insatiable hunger to wield continued power, authority and wealth, African leaders, to a large extent, have successfully managed to manipulate their country’s respective constitutions to hold on to political power.

This mode of unconstitutional change of government, however, seems to be the preferred method of unlawfully holding on to power by African leaders. While Africa has rarely witnessed military coups in recent years and the refusal to hand over power by Jammeh amounts to another isolated incident, the continent has witnessed unpopular constitutional amendments in Equatorial Guinea, Gambia, Cameroon, Chad, Gabon and Togo, Burkina Faso, Senegal, Burundi, and in Uganda.

The adoption of ‘constitutional coups’, a term coined by the Human Rights Watch, as a means of retaining power without the use of military or physical force poses the biggest threat to continental stability as well democracy and good governance. Born out the struggle to end colonialism, the objectives of the African Union have now shifted to promoting peace, security, and stability on the continent; democratic principles and institutions, popular participation and good governance; and protect human and peoples' rights, among others. To achieve these aims, it must seek to confront the on-going wave of constitutional manipulation.

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