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Coups in Africa: Legal, moral implication of Nigeria’s ironies

By Benson Uche Egbuchiwe
07 September 2023   |   3:55 am
Incidences of coup d’état within the West African subregion have yet again brought a new dimension to the question of democratic stability on the African continent.

Gabonese soldiers appearing on television on August 30, 2023 announcing they were “putting an end to the current regime” and the cancellation of an election that, according to official results, President Ali Bongo Ondimba won. – “AFP PHOTO / GABON 24”

Incidences of coup d’état within the West African subregion have yet again brought a new dimension to the question of democratic stability on the African continent. Recently, I had the opportunity to participate in a Zoom debate organised by my Law school classmates and the topic of discussion was coup d’états in Africa and its impact on democracy within Africa. Participants took turns to share opinions on this worrisome issue of military incursions and the obvious consequences.

Interestingly, this topic aligned perfectly with my university project from over 25 years ago. For my undergraduate studies at the university, I delved into different legal and theoretical foundations of military governments that were established through coups, and my research was aptly titled “Law and Revolutions: An X-ray of the Nigerian Experience.” To provide depth, I was fortunate to have Prof. Akin Oyebode, a distinguished academic of the University of Lagos, a Harvard and Cambridge University trained professor of Law as my supervisor, also being a topic in Jurisprudence of Law which is his area of expertise.

Legal Foundations of Coups:
The legal and conceptual basis for coup d’etats stems from the espousals of the positivist school of thought led by Hans Kelsen which posits that successful coups are lawful. They contend that the legitimacy of coup d’etats is a political and moral issue that has to be resolved through the political processes of society where they occur and that the validity of a successful coup d’etat is a legal question that belongs to the province of legal theory.

They characterised the efficacy and legitimacy of coup d’etats from the adoption of the propositions that the efficacy of coups bestows validity on them by the deployment and consideration of other validating and extenuating doctrines such as the doctrines of necessity, implied mandate, and public policy exceptions and such others by coup plotters.

Judicial Orientation to Coups in Nigeria:
In a perverse sense, Nigeria’s Judiciary in the course of six successive and successful coups had gravitated toward Kelsen’s theory in interpreting coup d’etats to date. The courts have always expressly refused or shied away from declaring military governments and laws that emerged from coups as illegal. The only lame attempt by our judiciary was when they declared the National Interim Government of Ernest Shonekan as illegitimate. In other instances, the participants, laws, and policies of successful coups and military government have all been legally and judicially sanctioned as legitimate either expressly or impliedly.

Nigeria’s Moral Examples to other Africa countries on coups:
As I contended in both instances, that is in my research work and in the debate with classmates, Nigeria has set a disturbing example for other African nations by failing to hold accountable successive coup plotters and failure to put them through the rigors of our criminal justice system, especially when in our jurisdiction the prosecution of criminals and criminal perpetrators who, having toppled democratic governments with guns, and in some instances, occasioned deaths of people and bloodbaths, are not statute barred.

By condoning and not taking firm actions against coupists, Nigeria missed the rare opportunities to establish a strong deterrent against coups in other African countries that have recently embraced this undemocratic practice. Furthermore, the failure to disavow actions taken during illegal military regimes accompanied by the ironic practice of rewarding successful coup participants with political positions in the civilian space only serves to inspire aspiring coup plotters in Nigeria and across Africa.

Sadly, in the case of Nigeria, there is a disturbing situation where coup plotters are rewarded afterward with high-ranking positions such as ‘juicy’ ministerial portfolios, and in some cases, they have even ascended to the presidency while receiving the highest honors in the country. This continuous endorsement sends a dangerous message that participating in coups can lead to personal gain and political advancement, rather than facing the appropriate consequences for their actions after successful coups.

It is my considered thought that had Nigeria taken a different approach by prosecuting both military and civilian accomplices involved in previous coup plots within the country, we could have established a precedent that might have discouraged similar attempts in the future in Nigeria and other African countries. This perverse reward practice in Nigeria has served as a dangerous example to neighbouring African countries, particularly those grappling with bad governance systems. Instead of providing a platform for denouncing such actions, Nigeria has inadvertently reinforced the notion that success in a coup can lead to power and prestige.

The Socio-Economic Predispositions to Coup in Africa
While the legal foundations of coups, as proposed by Hans Kelsen, may have influenced the acceptance of such actions in Africa, there have been research studies that highlight other underlying socioeconomic factors contributing to successful coup d’états.  The African Union’s Peace and Security Council, in a 2014 report summarily stated that unconstitutional changes of government through coups in Africa often arise and are successful in socio-political contexts characterised by governance deficiencies, rampant corruption, greed, and selfishness.

To avert coups, Africa as a continent must address these underlying issues and work towards strengthening governance, combating corruption, and promoting a culture that deepens democratic ethos and the rule of law. By doing so, we can discourage the occurrence of coups and create a more stable and prosperous future for the continent. Other foreign research and reports have identified several socioeconomic contexts that contribute to successful coup d’états in Africa and these include the mismanagement of diversity, mismanagement of economic opportunities, marginalisation of groups, and human rights abuse, amongst several other factors including especially the manipulation of the constitution.

Above all, poverty has been identified as a significant precursor to coup attempts. Countries that are economically poorer and have less stable democracies have historically been more susceptible to coups. In fact, according to a report, out of the 54 countries on the African continent, 45 have experienced at least one coup attempt since 1950. It further indicated that countries with higher levels of poverty and less stable democratic systems have been more prone to such takeovers. The report further highlighted a significant correlation between the high poverty index in many African countries and the prevalence of coup d’états in the region. It revealed that out of all successful coups worldwide since 1950, 214 of them took place in Africa, with 106 of them being successful. This represents the highest number compared to other continents.

Solutions to Coups:
On what should be the solutions, firstly there must be deliberate and concerted efforts to tackle these underlying issues, including promoting inclusive governance, combating corruption, protecting human rights, and ensuring fair electoral processes, which is vital to reducing the occurrence of coups and fostering stable and prosperous democracies in Africa-more than the platitudes

Given these stark data and considering the historical and judicial perspectives on coup d’états from a Nigerian standpoint, our government needs to engage in introspection and be somber in engaging with the government of Niger.

While ECOWAS may have displayed a sense of bravado in their declaration, it is crucial to consider the broader context and historical precedents when approaching the situation. Jettisoning this knee-jerk reaction and taking a more measured approach based on comprehensive analysis is warranted. The call for a war on poverty, corruption, government wastage, and hunger by the African governments is what is needed now and not war with one another.

Nigeria’s Damning Ironies:
In conclusion, one couldn’t but note the irony in Nigeria’s leadership roles in handling a military expedition in Niger, considering this context, first Major General Muhammadu Buhari who shares ancestry with Niger was involved in a notorious coup that disrupted Nigeria’s democratic process in 1983. He was subsequently rewarded with two terms as president of Nigeria totaling eight years and was bestowed with Nigeria’s highest honor, the GCFR (Grand Commander of the Federal Republic). The second irony is that Gen. Abdulsalami Abubakar (GCFR) who became a benefactor of Nigeria’s highest seat of power-the presidency from the legacy of prominent coupists in Nigeria was sent as an elder statesman to mediate and truncate the ambitions of young military Nigeriens who perceive him and his other Nigerian military statement and heads of state as models of citizens’ engagement and aspiration in governance through coup d’etats. This irony raises questions about the consistency and sincerity of Nigeria’s approach to addressing these issues.

Egbuchiwe (BUE) is a lawyer and public policy analyst based in Abuja.