Regional use of force needs a normative framework

Faced with the threat of use of force by an ECOWAS Standby Force to evict him from power, for ignoring the outcome of the presidential elections, former president Yahya Jammeh of Gambia blinked. On 21 January, he agreed to step down and depart for exile, paving the way for his duly elected successor, Adama Barrow, to return from Dakar and take the reins of power. The terms of Jammeh’s departure and exile were carefully negotiated and outlined in a joint communiqué issued by ECOWAS together with the African Union and United Nations. In so doing, ECOWAS struck a blow for democracy and set a precedent for how the threat of use of force can change the calculus of an obdurate leader who ignores the wishes of his country’s electorate.

But setting a precedent is different from setting a norm. Global and regional governance flourish on the basis of mutually agreed norms codified in treaties, conventions, and declarations. Precedents not governed by norms are difficult to replicate and have the redolence of expediency. The Gambia episode raises the questions of both expediency and proportionate response. To explain why this matters, it is important to understand that democratic transitions in Africa are beset by three “retarding” trends: coups – unconstitutional changes of government; tenure elongation beyond constitutional limits; and ignoring electoral outcomes.

Though coups have become less frequent and witnessed a dramatic decline in Africa, there have been fifteen coups in eleven African countries between 2002 and 2015. This translates to an average of one coup per year during that period. These occurred in Burkina Faso (2015); the Central African Republic (2003); Egypt (2013); Guinea (2008); Guinea-Bissau (2003, 2004, 2012); Madagascar (2002, 2009); Mali (2012); Mauritania (2005, 2008); Niger (2010); São Tomé and Príncipe (2003); and Togo (2005). These coups occurred in spite of the African Union having codified into Article 30 of its 2002 Constitutive Act the following provision — “Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.”

African Union has invoked this article to suspend countries or impose sanctions on usurpers of power in Burkina Faso, the Central African Republic, Côte d’Ivoire, Guinea, Guinea-Bissau, Egypt, Madagascar, Mali, Mauritania, and Togo. ECOWAS, which has a zero tolerance policy towards unconstitutional change of governments codified in its article 1(b-e) of the Protocol on Democracy and Good Governance, and articulates a range of sanctions in article 45 of that protocol, has been equally vigorous in its condemnation of the coups in the six countries on this list that are its members. Of the three retarding trends to democracy, a coup is the most flagrant breach of democracy. Yet in no instance has either the African Union or ECOWAS explicitly threatened the use of force to unseat usurpers of power. Use of force was explicitly threatened after the coup in Sao Tome and Principe, but this was done by Nigeria and not by ECOWAS or African Union.

Meanwhile, there are over a dozen countries in Africa where incumbent presidents have used various legal devices and political manoeuvres to extend their tenures beyond constitutional limits. These include eliminating term limits with connivance of parliaments, revisions of constitutions, and serial postponements of elections. Neither the African Union nor ECOWAS have been able to prevent such acts or penalise their perpetrators. This is notwithstanding the fact that the African Charter on Democracy, Elections and Governance adopted in 2012 includes a sanctions clause for ‘any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’.
Ignoring the results of elections has the least frequent occurrence of the three retarding trends to democratic transition in Africa. Of the fifteen presidential elections held in 2015 and thirteen in 2016, Gambia was only one case where results were ignored by an incumbent. Yet, as the cases of Côte d’Ivoire in 2010 and Gambia have shown, ignoring the results of elections can stir regional and global ire in ways that elongations of tenure have not.

This moment when ECOWAS is basking in the glow of its success in Gambia is most opportune for it to begin thoughtful reflection on how it will approach the next electoral crisis centred on ignoring electoral outcomes. What has worked in Gambia this time might work next time in another country context. This is because there were many expedient reasons that galvanised sub-regional leaders to remove Jammeh: he was the only remaining leader in west Africa that came to power by coup; he had opposed the idea of promulgating an ECOWAS code on presidential term limits; and he presided over a small country with a military strength of one thousand soldiers.

The time has come for African regional institutions to devise mechanisms that calibrate policy responses to include a range of sanctions, as an intermediate step between mediation and use of force, which should be the last resort. If use of force will be threatened or applied in cases of coups or ignored elections outcomes, this needs to be codified into a protocol or declaration, including how such military interventions will be paid for. Such a normative framework is urgently required to foster predictability and avoid the appearance of expediency. Most importantly, the existing sanctions regimes must be applied with a greater degree of consistency, otherwise selective or non-applications of such sanctions will undermine confidence in regional governance frameworks.

Ejeviome Eloho Otobo is a Non-Resident Senior Expert in Peacebuilding and Global Economic Policy at the Global Governance Institute in Brussels, Belgium.