The Challenges of the AU Charter on Democracy

 Introduction

Elections is a sine qua non democracy and good governance, and may be regarded as the main ‘ritual’ in democratic societies by means of which citizens periodically renew their commitment to the norms and institutions which embody the democratic state. However, in independent Africa, elections have always been a major issue for political leaders. It is without doubt for this reason that the Charter on Democracy, Elections and Governance has attached a number of guarantees to the organisation of this ritual, amongst others that it be supervised by the AU.

Elections must be organised regularly by states, and the governments must also agree to accept that

a)        They are the basis for authority of any representative government

b)        Their regularity is a key factor in the process of democratisation and good governance, rule of  

       law, maintenance and promotion of peace, security, stability and development

c)        They contribute to the prevention, management and settlement of conflicts

d)       They are organised in a free and transparent manner on the basis of democratic constitutions and in accordance with the relevant legal instruments according to a system of separation of powers, and in particular the independence of the judiciary at regular intervals, as set down in national constitutions by impartial electoral non-exclusive institutions, which are competent and have well-trained staff with sufficient logistical means to carry out the task (AU 2002a, par II; see also AU 2007a, art 17).

These are seemingly rhetorical and as such poses a vast contrast to its pragmatic application. In broaching the challenges of the AU Charter on democracy, elections and governance, the incessant events of upheavals and political unrest in some part of the continent cannot be overemphasised. The 2015 dramatic Burundian experience which plunged the nation in almost a sporadic civil war rendering over 300,000 of the nation’s populace displaced, serves as a vivid example of the hurdles in the implementation of the Charter. The argument here is that, the Charter provides an “Eldorado world of democracy, elections and governance” ipso facto conflicts and upheaval such as the experience of Burundi should never have occurred if the tenets of the document (AU Charter) are adequately implemented. This presentation takes us to look at only five salient areas which will be seen as posing a challenge in the implementation of the charter with particular reference to the Burundian experience of 2015.

Democratic institutions and culture

Any democratic system worthy of the name relies on operational institutions, particularly state authorities or bodies, security forces, political parties, independent and accessible media, as well as an active civil society which is able to play its role of monitoring the action of public authorities. This is why the Charter acknowledges the important role played by these participants in the strengthening of democratic culture on the continent, even if it remains very vague as to the exact contribution they could make in moving African societies towards democracy, and the tangible actions which states should undertake to implement their conventional obligations with regard to these participants.

Democratic culture: a major challenge of the implementation of the Charter

With regard to the promotion of democratic political culture, states are required to

a)             Draw up a legislative and political framework which allows for the development of democratic culture (AU 2007a, art 11)

b)             Implement programmes and activities designed to strengthen democratic practices.  In this regard they are asked to ‘create legal conditions conducive to the development of organisations of civil society’ (AU 2007a, art 12, par 3)

c)             Integrate civic education on democracy and peace into academic programmes (AU 2007a, art 12, par 4)

d)            Establish and maintain political and social dialogue promoting transparency and confidence between political participants (AU 2007a, art 13).

Unconstitutional changes of government: the case of Burundi in 2015

This is the key innovation of the Charter on Democracy, even if the notion of the unconstitutional change of government is an improved version of that of ‘an unconstitutional interruption of the democratic order or the alteration of the constitutional order’ as set out in the Inter-American Democratic Charter (Organisation of American States 2001, art 12, par 4). It was introduced to the African continent for the first time at the OAU’s Algeria Summit in 1999 with the aim of preserving the constitutional order of contracting states and particularly to put an end to the seizing of power by the army or other non-state groups.

Complementing the Declaration on the framework for an OAU response to unconstitutional changes of government, adopted in 2000, the Charter on Democracy specifies that ‘any amendment or revision of constitutions or legal instruments which affect the principles of democratic changeover’ also constitutes an unconstitutional change of government. The latter wording was preferred to ‘the amendment and revision of constitutions and legal instruments in violation of the spirit and letter of constitutional provisions by the incumbent government in order to remain in power indefinitely’ used in the second draft revision because of the opposition of many African heads of state and the government at the Banjul Summit in June 2006.

State institutions: comprehensible by deduction?

The Charter says nothing about state organisations which are called upon to play a major role in its implementation. However, on reading paragraph 1 of article 44, this could include the following

a)             All state institutions involved in drawing up and adoption of national laws, like the executive, parliament, national institutions in charge of the promotion and protection of  peoples’ rights and electoral matters.

b)             State media which should play an important role in the popularisation of the principles and rules of the Charter on Democracy;

c)             Political parties, who do not only participate actively in the laws-making process and monitoring of the activities of the authorities, but, and particularly, who are the privileged players of the democratic game.

For the rest, one of these state organisations must assume responsibility for drawing up the report which the contracting state submits to the Commission of the AU every two years on the measures, legislative and otherwise, which it has taken to implement its agreed undertakings. However, in view particularly of the AU’s new philosophy of promoting the most extensive co-operation possible between national players on democratic matters, one could consider that this report will entail substantial collaboration between public and private participants.

The Discrepancies around the third term bid of Nkurunziza (and Co): A Challenge to the Charter

On 30 October 2014, Burkina Faso, one of the nominally stable countries in West Africa and crucial anchor state in regional peace and stability, experienced a period of political chaos, with the army eventually dissolving government, including the national assembly. The president of Burkina Faso at the time, Blaise Compaore, who himself had come to power through a coup d’état in 1987, and legitimised his rule through successive elections in the 1990s, has been a leading mediator in West African conflicts over the past decade and more. Moreover, his role as a facilitator had been validated, not only within the continent and the West African sub-region, but also by Western powers including France, which had intervened diplomatically and militarily on many occasions in Africa’s security challenges, particularly in Francophone Africa.

Burkina Faso has since been followed by Burundi, where after a bitter feud between the opposition and government around a third term for Pierre Nkurunziza, a coup d’état sought to settle the dispute in May 2015. For this presentation, the source of concern leading up to the collapse of government through a coup ought not to necessarily reside in the legitimacy of a referendum or parliamentary constitutional amendments seeking to revise the constitution to allow leaders third and fourth terms in office.

Crucially, the main worry ought to be the trend in constitutional revisions that allow African leaders to extend their stay in power. Therefore, the collapse of notionally democratic governments in Burkina Faso and Burundi as a consequence of attempts by Compaoré and Nkurunziza to extend their presidential terms should raise red flags about the extent of state-building and democratic transitions in Africa. This is particularly important in light of mooted constitutional amendments within the next two years in Rwanda and the Democratic Republic of Congo (DRC). These amendments, if they go ahead would seek to extend the rule of the men in power in these countries. Ominously, we can only speculate about the consequences. But if there are lessons to be drawn from Burkina Faso and Burundi, Africa should err on the side of caution.

The African Union has acted swiftly in the event of unconstitutional overthrows of government. After the coup, it suspended Burkina Faso from its institutions, including requesting the military to produce a roadmap that would allow a transition to a democratically elected civilian government. This occurred with the army transferring power to a transitional civilian authority late in November 2014. Similar suspensions by the African Union were imposed in the case of Egypt (2013), Mali (2012) and Guinea-Conakry (2011) when coups threatened the democratic frameworks in these respective countries.

On this, the question of civilian rule, normative convergence in the AU has been widely accepted and is welcome as a safeguard for democratic civilian rule. Experience over the past decade and more demonstrates that a coup d’état is no longer a viable option in the African Union. This welcome acceptance, codified in Articles 2-22 of the AU’s constitutive Act is a result of lessons learned from the security and governance challenges posed by undemocratic rule by men and women in uniform. Still, more positive evolutions are needed since constitutional revisions to allow Presidents for life pose serious foreign policy and domestic challenges, with wide-ranging implications for regional peace and stability. It is for this reason that the African Union sought to reintroduce this debate at the 25th summit in June 2015 in South Africa. As it stands, there is scant appetite to deal with what is in the foreign policy arsenal of many African states a sovereignty-norm issue.

Concluding Remarks

Of these practices, the rise of presidential term extensions in the coming months and years is arguably one of the most critical foreign policy challenges in the AU. How the AU and its member states respond to this policy challenge could provide a glimmer of hope for democratic governance, which is the hope the AU Charter on democracy serves. Failure could reverse the democratic gains and accentuate conflict.