There is a strange notion in some African countries that incumbents do not and cannot lose elections. If at all it was so, maybe in the past, but in Africa today, continental laws do not allow an incumbent who loses a free and fair election to impose himself on the citizenry.
That a second term for an incumbent is almost automatic is a dangerous, albeit deliberate, perception. In Africa today, different forms of sanctions can be imposed on such an incumbent, including the use of lawful force by the regional body with the authorisation of the UN Security Council.
Electoral processes and their outcomes in contemporary African states are too important to left to individual countries as a matter of “internal affairs”. Elections these days in African states are also governed by international law, expressed through treaties (an agreement among states) at the continental level. This is because what are, at the first instance, national elections, have implications for regional peace and security.
An example that comes readily is the Kenyan post-election dispute of 2007-08. What appeared as an internal crisis hurt neighbouring countries Rwanda, Burundi, Uganda and South Sudan, especially the closure of the Mombassa port. If the conflict had protracted, it could have created a humanitarian crisis by producing refugees and proliferation of small arms, hence the need for a continental legal regime to regulate electoral processes and their outcomes.
The notable treaty in this respect is the African Charter on Democracy, Elections and Governance (hereafter the Charter), which entered into force in 2012. There is the general belief among international lawyers that the post-election violence in Kenya in 2007 and in Ivory Coast in 2010, among other things, informed the drafting of the Charter (the travaux preparatoire).
It is without doubt one of the laudable normative standards adopted by the continent that seems to speak to the realities in its countries with regards to overall governance situation and elections in particular. In this article, though, I focus on elections as a key provision in the treaty. A careful reading of the Charter shows how it seeks to address some of the challenges elections pose to political stability and peace.
The Charter, as a piece of legislation, is informed in its drafting and intent by this context of bad elections governance, which it seeks to correct. Just after independence in the 1960s, when first elections were held in many of the post-independent countries, one-party state systems and life presidencies were introduced and became commonplace practice in all the states of the continent. Elections, thereafter became mere formalities, often with the results known before they are held.
With the end of the Cold War, in the 1990s, and the ushering in of constitutional governments through competitive multi-party politics, there was the general expectation that there would be free and fair elections and the will of the people in the various countries would determine the results. It soon became clear as crystal that this was not to be.
There are two scenarios that have since emerged on the African political landscape. First, the new constitutions that were adopted to limit the terms of the presidents were amended through manipulation to allow certain incumbents to stay beyond terms originally stipulated in the constitutions.
Secondly, some incumbents rigged elections and refused to hand over power to persons who are generally known to have won the elections. This happens mainly when an incumbent has served a first term and loses elections to serve a second term. In Africa, there is a dangerous view that a second term is almost “automatic”, and as such, everything must be done to win the elections, including rigging or use of intimidation and violence. There is a subtle message to supporters of incumbent parties that “it is impossible for them to lose” for the singular reason that they are in power as incumbents. This has been a recipe for chaos and violence.
These two main scenarios created tensions in many countries and, in some instances, degenerated into violent conflicts. Until recently, the response of the then Organisation of African Unity (OAU), created in 1963, was to treat these crisis as “internal affairs” of sovereign member states. Therefore, there was no mechanism nor normative basis for the organisation to intervene when elections were bungled.
The replacement of the OAU with the AU in 2002 came with a shift from “non-interference” to “non-indifference” to what has otherwise been the internal affairs of member states. With this alteration began the evolution of normative standards on elections, which culminated in the adoption of the African Charter on Elections, Democracy and Governance as a treaty that entered into force in 2012.
THE CHARTER’S PROVISIONS
The drafters took due cognisance of the above issues and inserted provisions to ensure free and fair elections and thus prevent rigging and also make it illegal for incumbents who lose elections to forcibly impose themselves on their countries.
Consequently, article 2 ( 3 ) specifically provides that the objectives of the Charter is to “promote the holding of regular free and fair elections to institutionalise legitimate authority of the representative of government as well as democratic change of governments”. In addition, article 2 ( 4 ) seeks to “prohibit, reject and condemn unconstitutional change of government in member states as a serious threat to stability, peace, security and development”.
Unconstitutional change of government and the sanctions to be imposed are defined and elaborated on in article 23, which provides that: State parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the union.
The article spells out five situations that constitute unconstitutional change of government. Of note is the article 23 ( 4 ), which clearly notes “any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections”.
Put simply, according to the Charter, it is illegal for a sitting government that loses elections to refuse to hand over power to those who won. This also means that rigged elections for an incumbent to stay in power will be illegal and a violation of the terms of the treaty. In addition to the preamble, the substantive provisions of the Charter also insist on free and fair elections, such as article 19 ( 2 ). So also does it provide for in article 17 ( 1 ) an independent and impartial national electoral bodies responsible for managing elections.
In addition, a government violates a number of provisions of international human rights law if it refuses to hand over power. In accordance with article 1 ( 1 ) of the International Covenant on Civil and Political Rights, 1976, “All peoples have a right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development”. There are two forms of self-determination that are known to international law: internal and external. Internal is how in an independent country a people or citizens freely chooses a government they want without any hindrance. Imposing oneself as an government by rigging elections or refusing to hand over is a violation of the provision. This right is reinforced by article 25 of the same instrument, the Covenant of Civil and Political Rights, 1976. It states that every citizen without any restriction has the right to “ vote and be elected at genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing free expression of the will of the electors”.
SANCTIONS FOR RIGGING, CLINGING
In case of a breach by the government of a member state, sanctions shall be imposed by the AU’s Peace and Security Council. Article 25 stipulates the different types of sanctions that could be imposed on such a state that indulges in unconstitutional change of government as defined, in this case, as a refusal by an incumbent to hand over power after being defeated in a free and fair elections.
They include suspension from the African Union; the perpetrators shall not be allowed to participate in elections held to restore the democratic order or hold any position of responsibility in the political institutions of their state; such perpetrators may be tried before the competent court of the AU; the AU may decide to apply “other forms of sanctions” on perpetrators of unconstitutional change of government, including punitive economic measures.
This leaves open the forms of sanctions that the AU may elect to impose. It is submitted that such sanctions may not preclude the use of force against a regime like an incumbent who refuses to hand over power and thus constitutes unconstitutional change of government within the meaning of the treaty. All that needs to be done is that such use of force must be authorised by the United Nations Security Council in accordance with chapter 7 of the UN Charter. Save in self-defence by states, the UN Charter makes the UN Security Council the sole body authorised by international law to use force against states.
In such an instance that the UN may authorise the use of force, it may have to be shown by the AU that the particular case is an unconstitutional change of government. Equally, sanctions shall also be imposed upon a member state proven to have instigated or supported unconstitutional change of government in another state.
The elections in Gambia on December 1 last year are a case in point. When President Yahya Jammeh lost, he at first conceded defeat, but curiously on December 9, he had a change of mind and refused to hand over power to the duly elected opposition leader in accordance the Gambian constitution. The diplomatic pressure and later the other forms of intervention that followed, including the West African troop presence, among other things, relied upon article 23 of the African Charter on Democracy, Elections and Governance, 2012, and applicable protocols on Good Governance of the Ecowas.
This aside, in the last five or so years, a number of incumbents have lost power and honourably handed over power, including in Ghana, Nigeria and Senegal.
Dr Nana Busia Jr is a research fellow and guest lecturer of international law, ICWS, University of London, UK