[Editor’s note: Italicized and underlined numbers are footnote references.]
THE NORTH AFRICAN UPRISINGS UNDER THE AFRICAN UNION’S NORMATIVE FRAMEWORK
MEHARI TADDELE MARU [PhD] 1
Introduction
In early 2011, popular uprisings swept across North Africa, spearheaded by the region’s outraged youth crying ominously “our country or death!” The choice for the authoritarian leaders in power was clear: change fast, resign or perish. The events in North Africa brought about sweeping changes in leaderships in Tunisia, Egypt and Libya. Ben Ali fled Tunisia, while Egypt’s Hosni Mubarak had to leave office after three weeks of defying internal and external calls for his resignation. The Libyan leader, Muammer Qaddafi, met an ignominious end in the hands of his captors, and after incessant airstrikes over Libya by the North Atlantic Treaty Organization (NATO), lasting nearly eight months.
As a result of the North African uprisings, officials of the African Union (AU) in particular and leaders of African states in general began to debate normative, legal and institutional questions: 2 the rule of law and constraints on popular power defining constitutionalism, elements of which may, on the surface of it, make revolutions appear incompatible with constitutionalism. Similarly, revolutions may inherently appear to pose threats to constitutionalism, or even become unconstitutional. This brief paper examines if there is such inherent incompatibility, and even irreconcilability, between revolutions and constitutionalism. It also looks at whether AU’s normative frameworks related to constitutionalism and democracy are contradictory to the events in North Africa. The paper will address questions such as: are these uprisings and revolutions inherently anti-constitutional, or even unconstitutional? What are unconstitutional changes of government? Are the North African revolutions incompatible with AU’s norms? Why is the involvement of mercenaries inherently anti-constitutionalism or even unconstitutional? Were mercenaries involved in the uprising in Libya?
In part, these questions emanate from the historical fact that Africa has faced more coups d’état than revolutions, with the AU poised to respond to unconstitutional changes of governments rather than to revolutions. Why, it may be asked, did AU’s institutional frameworks fail to predict the North African uprisings through the various mechanisms in place, such as the Continental Early Warning System, the African Peer Review Mechanism, etc? Despite significant improvements over the past ten years, the AU’s institutional mechanisms still remain weak in practice, compared to the challenges they are designed to address, so that they have been incapable of bringing about the desired results they were designed for. Are these indicative of the norm-implementation gap? How can AU move to fill the gap between early warning and early policy response?
A year or so after the North African uprisings that took every body by surprise, it is now time to critically examine the nature of the uprisings, their causes and consequences, and AU’s response. The paper discusses the current events in North Africa vis-à-vis the AU’s normative frameworks related to constitutionalism and democracy. The AU has four major normative instruments dealing with revolutions, mercenaries and unconstitutional changes of government. These are the African Charter on Democracy, Elections, and Governance (the Addis Charter) 3 and the Lomé Declaration of July, 2000, on the Framework for an OAU Response to Unconstitutional Changes of Government (the Lomé Declaration) 4, as well as the 1977 OAU Convention for the Elimination of Mercenarism in Africa (the OAU Convention on Mercenarism).5 Does the Lomé Declaration on Unconstitutional Changes of Government apply to revolutions? Do the events in North Africa constitute revolutions? Are all uprisings the same? And what are their implications on the above-mentioned AU policies, on governments and international actors in Africa? It is only against the background of these questions that one can understand why the AU responded to the uprisings the way it did. To answer these questions and understand the manner in which AU’s normative frameworks dealt with events in the North Africa, the Peace and Security Council and the Permanent Representatives Committee of the AU convened a briefing on 11 July 2011.6 The present paper is an updated version of a paper presented at this session. 7
In this brief paper, it is argued that no tension exists between revolutions and the AU normative frameworks. Revolutions should be viewed as extra-constitutional, different from unconstitutional events. Both the letter and the spirit of AU’s normative frameworks support demands asserting the general will of the people. Taking the principle of interpretation based on the object and purpose of law, AU’s normative frameworks aim at entrenching constitutionalism and establishing constitutional regimes in Africa. The paper explains how and why the Lomé Declaration and the Addis Charter do not proscribe revolutions necessitated by unconstitutional governance in a country. More particularly, it argues that existing AU normative frameworks are adequate to address events such as the North African uprisings, so that there is no lacuna in the normative frameworks. The AU’s major shortcomings remain its inability to swiftly respond to crises in Africa, as well as weaknesses to effectively implement its normative frameworks and decisions. 8 For an effective implementation of norms already in existence, the author recommends the adoption of a moratorium to end norm-setting by mobilizing all AU resources towards norm-implementation and supervision.
In order to assist the decision-making organs of the AU when faced with uprisings similar to those in North Africa, the author further proposes what one may call “the credibility test”, based on the existing AU normative frameworks. To the extent that public protests enjoy massive popular support and meet “the credibility test”, they remain within the rights of people to revolution. The “credibility test” needs to fulfill three substantive conditions: systemic violations of substantive human rights, violations of the trust of the people and the absence of constitutional mechanisms of redress, including peaceful means of changing a government in power as assessed by the population directly affected and the wider opinion of the international community – the UN, AU, EU and other governance institutions. The “credibility test” thus needs to enjoy both external recognition, by the international community, and essentially internal endorsement by the people affected. When these conditions are prevalent, the people have the right to change the government constitutionally, when possible, and extra-constitutionally through revolution when necessary
The “Credibility Test”
This paper argues (1) that revolution is considered as the birth right of people to change their government when other amicable and constitutional means of replacing that government does not work for whatever reason; (2) that revolution is an extra-constitutional legitimate means of replacing a government when change of government is made impossible through constitutional means; (3)
that the object and purpose of the Addis Charter and the Lomé Declaration is mainly the promotion of constitutional governance; (4) that the popular protests in North Africa (particularly the Tunisian and Egyptian cases) fulfill most of the basic elements of a revolution; and (5) that, therefore, these popular protests are not only compatible but also within the spirit of the Addis Charter and the Lomé Declaration. As far as public protests enjoy massive popular support and meet the “credibility test”, it is the right of the people to participate in a revolution. The “credibility test” ensures that the legitimacy of revolutions cannot be questioned; in other words, it is a post-revolution government legitimacy certification. It offers a test that policy making organs such as the AU could apply when they determine a change of government as revolution or unconstitutional. Indeed, ‘the credibility test’ could also be used as criteria for determining the credentials of governments after revolution in similar manner to the working principles of the UN Credentials Committee. In so doing, it serves as an instrument to ensure constitutional democracy by proffering a mechanism to deal with revolutions that are hijacked by military or other organized but unelected groups.
Implicit in the “credibility test” is the assumption that governments do not have the license to treat their citizens as they wish. Constitutionalism provides inbuilt constraints on a government in power in the sense that governments should continuously enjoy the mandate of the general public. The “credibility test” also justifies uprisings against a government when and where the above three substantive conditions and two kinds of endorsement are met. A change of government under such circumstances ensures that it is not unconstitutional changes of government as indicated in the Lomé Declaration or the Addis Charter.
In the opinion of the author, the AU needs to urge its member states to enable their populations to express their concerns and legitimate aspirations for better governance and performance from their governments. Noting that the most challenging days of democratization in Africa still lie ahead, the paper concludes by recommending a more robust engagement by the AU and its various organs than ever before. This should be guided by the various AU human rights treaties and the provisions of the Addis Charter as well as the Lomé Declaration.
I. AU’s Interventionist Normative Frameworks and its Architectures: African Governance Architecture and African Peace and Security Architecture
The AU is a continental organization with fifty-four member states including the newest African nation—the Republic of South Sudan. 9 Since the end of the Cold War, African leaders have been pressured to find African solutions to African problems, both domestically and internationally. Civil wars in the Democratic Republic of Congo (DRC), Liberia, Sierra Leone, Burundi, Central African Republic and Guinea Bissau; genocide in Rwanda; state failure in Somalia; and secessionist movements in Sudan became real challenges to the new African leadership, demanding urgent attention and action. The humanitarian crises in Somalia 10 and Darfur 11 were the worst, with more than six million deaths and forced displacements. To meet these challenges, the institutional transformation of the Organization of African Unity (OAHU) into the AU began with the declaration of the OAHU Extraordinary Summit of Heads of State and Governments in September, 1999, in Sire, Libya. 12 Indicative of the purpose, the title and theme of the Summit, “Strengthening OAHU Capacity to enable it to meet the Challenges of the New Millennium,” was to amend the OAHU Charter in order to enhance the efficiency and effectiveness of the OAU. 13 This extraordinary summit, and later the AU Constitutive Act, shifted the mission and vision of the OAU, mainly from an organization of anti-colonial solidarity, to the more pro-human rights interventionist AU. Under Article 4 of the AU Constitutive Act, the AU has the right to intervene 14 in a member state, pursuant to a decision of the AU Assembly of Heads of State and Governments (the Assembly) to prevent any grave circumstances, namely, war crimes, genocide and crimes against humanity.15 This was a vital mandate for the AU to resolve the tensions between sovereignty and responsibility.
The Responsibility to Protect: Differentiating Intervention from Interference
Thus, the concept of sovereignty as responsibility fundamentally replaces the old principle of non-interference in the internal affairs of a sovereign state. It asserts the prime responsibility of the state and the subsidiary duty of the international community in ensuring the “safety, lives and welfare” of human beings globally. Indeed, with increasing universal recognition of the principle of the responsibility to protect, state sovereignty progressively becomes a functional tool with the sole purpose of discharging the duties of the state. The shift of mission of the AU lays on its success in combining three elements: 1) the sovereignty of its member states, 2) their responsibility to protect their nationals, and 3) African solidarity expressed by the duty of the AU in assisting states with internal grave crises. The AU to intervene in a Member State when an internal crisis coincides with grave circumstances constituting war crimes, genocide and crimes against humanity. These duties stipulated under the Kampala Convention entail some form of responsibility of intervention for the AU. When a state fails to discharge its responsibilities, the international community, and in this case the AU in particular, has the duty to provide back-up protection to the citizens of that state.16 This differentiated intervention from interference. This reinforces the principle of subsidiarity, which dictates the complimentary responsibility of the international community to accept the responsibility to protect a given population when the state in control fails to do so. The principle of subsidiarity reinforces this re-conceptualization of sovereignty as responsibility to respect and ensure respect the human rights by states and the international community. This is what is called the principle of subsidiarity. The benefits of this conceptualization are significant.17
In this regard, through practice, the AU has made a distinction between intervention and interference. Intervention can be sanctioned only if substantive and if procedural requirements are fulfilled and a proper authorization by the AU or the UNSC with strict conditionality is enforced. Subsequently, the AU has officially approved the principle of the responsibility to protect.18 Thus, for the AU unlike the OAU, there is no normative inhibition to intervene in North African countries to protect civilians when this is required.
In order to intervene, the AU has institutional mechanisms such as the Peace and Security Architecture (APSA) which still is not fully operational.19 APSA is comprised of Peace and Security Council (PSC), the Panel of the Wise (PW), the Continental Early Warning System (CEWS), the African Standby Force (ASF), the Peace Fund (PF), and the Military Staff Committee (MSC). In the past ten years, the AU has responded to urgent crises, such as those in Somalia, Darfur, South Sudan, Côte d’Ivoire, Madagascar, Niger, Mauritania, Mali, and the recent popular uprisings in North Africa, albeit with varying degrees of success. In terms of success, its performance is rat
her mixed. The signing of the Comprehensive Peace Agreement (CPA) between the North and South Sudan Liberation Army/Movement in 2005 and the Darfur Peace Agreement between the Darfuri rebel groups and the Sudanese government were examples of success. The AU’s High-Level Implementation Panel on Sudan (AUHIP) remains one of the most active peace mechanisms. Without such engagement from the AU and other international and sub-regional actors probably the cost of the pre-and post-referendum of South Sudan could have been enormous. The African Union-United Nations Hybrid Operations in Darfur (UNAMID), predecessor of the AU Mission in Sudan (AMIS), has improved the situation on the ground. While the AU has done well in minimizing the number of victims in Darfur with its AU Mission in Sudan (AMIS) totalling 7,000 peacekeeping troops, the AU Mission in Somalia (AMISOM) has since August 2011 made significant difference with its tireless efforts to bring Somalia out of its condition of statelessness.
In addition to AMIS, AMISOM and AUHIP , the Regional Economic Communities (RECs) have been active in their robust exercise of the right of intervention. The Economic Community for Western African States (ECOWAS) in Liberia, Sierra Lone, Côte d’Ivoire, Niger, Mauritania; IGAD in Somalia, South Sudan and Darfur; and the Southern African Development Community (SADC) in Burundi, Zimbabwe and Madagascar are examples of the active role the RECs have played in the maintenance of peace and security in Africa. PSC deliberations also focused on the Central African Republic, the Democratic Republic of Congo, Chad, Comoros, and Cote d’Ivoire, Burundi and Mauritania. The AU has been actively involved in monitoring elections in Africa, and subsequently, in mediation efforts when post-election violence occurred in many African countries. In this regard, the AU was busy in Kenya (2007), Zimbabwe (2008) and Côte D’Iovire (2010).
Generational progression of democracy
There is no principle in the AU Constitutive Act that has been implemented more effectively than the principle of the total rejection of unconstitutional changes of government. Several coups d’état and unconstitutional extensions of terms of office in Madagascar, Mauritania, Sao Tome and Principe, Togo, Mauritania ,Niger and Mali, as well as attempts in Chad, Guinea Bissau, and Guinea were, without exception, rejected and the AU successfully ensured the return of elected governments. With three dictators toppled by the North African uprisings and four democratically elected new leaders in Tunisia, Zambia, Liberia, and Nigeria, Africa’s democratic profile has shown generational progress. Despite having some dictators, and other leaders with contested mandates and diminished legitimacy due to election-related violence, it is clear that Africa has witnessed a “generational progression of democracy”. With each passing decade, the number of democratically elected leaders in Africa has increased. Compared to the 1990’s and early 2000’s, this decade has shown a striking surge in the number of democratically elected leaders participating in the AU Summit. Because of the increase in democratic elections, the democratic profile of the AU Assembly of Heads of State is expected to increase in the coming years. In this regard, the North African revolutions are what mathematicians call “markers of change” for the rest of the continent and elsewhere.
1.1 The Addis Charter
As provided under Article 3 of the Addis Charter, the Object and Purpose of the Addis Charter is democratic constitutionalism and good governance”. This is a restatement of Articles 3 and 4 of the Constitutive Act of the AU (the Constitutive Act), Its ultimate policy objective, as provided under Articles 2 and 5 of the Charter, is to establish constitutional regimes throughout Africa. Articles 2 and 3 of the Addis Charter provide the policy objectives of the charter and what democratic constitutionalism constitutes. These include representative government through vibrant parliament, multiparty democracy by way of regular credible elections, pluralist and good governance.20 Article 33 deals with practices of good governance. It requires that the management of public affairs (ranging from political to social services and taxation) needs to be publically transparent and accountable.
1.2 Democratic Constitutionalism
Constitutionalism mainly refers to the limitation of political power, while a democratic government is, by definition, representative of the will of the majority of the people. A constitutional order, however, also imposes inbuilt institutional and substantive restraints on the will of the people by way of individual and minority rights. Constitutionalism constitutes values, institutions and procedures. Constitutional values comprise three major substantive elements: (1) the limitation of the power of the government; (2) the right of the majority to rule within a constitutional limit; and (3) the right of the minority to enjoy their human rights. Thus, democratic constitutionalism guarantees the majority’s right to rule and minority’s right to be respected. (Democracy= Majority Rule +Minority Rights). The prime principle of constitutionalism assumes that governments need to be inherently good, faithful and ensure equal respect and dignity to the people collectively and individually. The Addis Charter emphasises interdependence and indivisibility of the political and civil rights, on the one hand, and the culture of peace and solidarity, social, and economic rights on the other.21 Increased awareness and education are central to the Addis Charter.22 It assumes that without educated citizens, democracy is difficult, if not impossible, to achieve. The Charter also indicates the critical role of economic, social and cultural rights for a given country to build a democratic system. This refers to the importance of fulfilling democracy and delivery of services.
Under a constitutional order the source of the power, mandate, legitimacy to govern a given population and territory emanates from the will of the people. A corollary of this is the right of the people to revolt against any force that contravenes their will through use of brute force and intimidation, or manipulation of procedures and abuse of power. Constitutionalism places inherent constraints on the will of the people and that of democratically elected government by way of minority rights, institutional check and balance and procedural safeguards. In this regard, Article 8 of the Addis Charter calls for the tolerance of diversity and pluralism, as well as the protection of “the minority rights within the member states including political, sexual, ethnic, religious and racial.” It further calls the State Parties to “adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups.”23Constitutionalism rests on institutions that offer the necessary separation of power and the check and balance between the law-maker, the law-adjudicator and the law-enforcer. Constitutional institutions serve as constraints to any usurpation of power that is entrusted to the government by the people. They are the custodian of the legitimacy of the government. Article 14 stipulates the governing principles related to democratic institutions.
1.3 Constitutional Institutions as Shock Absorber
Constitutional institutions play a critical role in times of crisis: they serve as
shock absorbers. A vehicle’s shock absorber reduces excessive suspension movements and the chances of that vehicle rolling downhill. In a constitutional system, independent institutions such as the judiciary, parliament, army and police all serve as shock absorbers when such a system faces a serious political crisis and rough road towards transition. Popular protests become revolutions when there are no strong institutions that serve as safety valve of any kind in the system. Constitutionalism provides institutions and procedures that absorb the political shock a country faces. For example, from 1910-1930, Germany had constitutional institutions and procedures that served as shock absorbers in managing the crisis that followed the First World War and preventing a complete revolution.24 This explains the reason why the German popular protests from 1918-1923 did not succeed in becoming a full-fledged revolution. As the writer argued elsewhere in August, 2011, “it is highly likely that Libya will be fragmented into pieces and pockets of tribal leadership, as a result, the potential for fragmentation of Libya into small ‘city-emirates’ such as the ‘Emirate of Darnah’ and ‘Albadah Emirate’ is very high”.25 The civil war and the potential for fragmentation in Libya may partially be attributed to the absence of institutions that could serve as shock absorbers.
1.4 The Lomé Declaration on Unconstitutional Changes of Government
Since independence, Africa faced more than 100 coups d’état.26 The Lomé Declaration provides four situations of unconstitutional change of government: (1) military coups d’etat against a democratically elected government; (2) intervention by mercenaries to replace a democratically elected government; (3) replacement of democratically elected governments by armed dissident groups and rebel movements; and (4) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections.27 Based on this definition, unconstitutional changes of government could take the form of an illegal replacement of a democratic government as provided for in situations 1, 2, and 3, or emplacement of some body or group in power in a situation specified under 4. Governments which are in power for more than fifteen years now came to power through the situation specified under 3 in the 1990’s. While replacements of government as provided for under 1 and 4 have shown a marked increase in recent years, the situations specified under 2 and 3 are rare.
For a long time, Africa faced more coups d’état than revolutions. Coups d’état are undertaken by the elite of a population to impose the interest of the few on will of the majority. They constitute typical unconstitutional changes of government in Africa. The causes of coups d’état are dissatisfaction with the elite military or civilian groups, with the leadership of a given government, and the exclusion of such elite from the usual benefits it gains. Even if many of the African governments who adopted the Lomé Declaration are governments which came to power through unconstitutional means, mainly by military or military-supported coups d’état, however, only a few participating heads of state or government were considered democratically elected under constitutional rule. Therefore, the Lomé Declaration was a call by African leaders, including those who ascended to the helm of power through coups d’état or civil war to end coups d’état. In other words, these leaders, through the Lomé Declaration, expressed their wish to avoid being toppled by coups d’état and to become the last coups d’état leaders.28The legislative intention of the Lomé Declaration unequivocally rejects seizure of power through replacement or emplacement of government supported by the military, mercenary groups, armed rebel groups, or by an incumbent party or personality. This could be inferred not only from the ordinary meaning of the terms of the Declaration, but also the context in which it was ratified and subsequent acquiescence in interpretation by the AU organs. Any other contrary interpretation of the Lomé Declaration could defeat the “object and purpose” it attempts to achieve. The Lomé Declaration is a decision of the OAU Heads of State and Government that rejects any unconstitutional change of government. For this reason, some writers argued that the Lomé Declaration is non-binding.29 Nonetheless, all decisions of the AU Assembly and other organs such as the AU Peace and Security Council are binding on member states, and the Lomé Declaration is legally binding.30 The AU policy organs have taken several decisions on this matter.31 The Addis Charter reinforces and transforms the binding normative principles of the Lomé Declaration to treaty based provisions.
In this regard, the Lomé Declaration specifically refers to “military coup d’état against a democratically elected Government” which could be construed as indicating that coup d’état against undemocratic government is acceptable. This would, in effect, encourage coups d’etat against governments perceived as undemocratic, thus becoming a licence for dissatisfied military groups such as the current coup in Mali and Guinea-Bissau. Taking the object and purpose interpretation, under the Lomé Declaration, an unconstitutional change of government is defined broadly not only to refer to changes of government by force but also includes governments that stay in power without legal or in contravention of constitutional mandate.32 Reinforcing this legislative interpretation, Article 5 of the Addis Charter calls on member states to “take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power.”33 It is, therefore, only logical to conclude that the official legislative intention of the drafters of the Lomé Declaration, regardless of the divergent motives of the leaders, was to lay the ground for the establishment of constitutional regimes in Africa. It totally rejects any unconstitutional takeover of, or illegal stay in, power.
In this regard, the Lomé Declaration refers to elite, mercenary or rebel-led changes of government, or implantation of a new government by coup d’état. Paragraph 12 of the Preamble of the Addis Charter refers to the Lomé Declaration on unconstitutional changes of government as violation of the Charter. Article 10 strongly urges member states to consolidate the primacy of constitutionalism in their political system. Article 23 (5) of the Addis Charter added a fifth situation that amounts to an unconstitutional change of government and states that “… any amendment or revision of [national] constitution or legal instruments which is an infringement on the principles of democratic change of government”. This would amount to implanting an incumbent government regardless of the will of the people. The main test should be substantive assessment of the circumstance within which extension of term of office is made. More importantly, it stipulates that amendments to constitutions are to be carried out only when a national consensus is achieved. Cumulative reading of Articles 5 and 10 of the Addis Charter stipulates that amendments to constitutions should take place by consensus, if possible, or through referendum, if necessary. Again the assessment involves a call for judgment based on the Credibility Test.
To narrow down the chances for the occurrence of coups d’état, Article 14 (1) provides for civilian control of armed and security forces as the basic element of
constitutionalism. The AU Constitutive Act (ACA) stipulates strict sanction regime and punishment, including criminal penalty at national level.34The Addis Charter calls on State Parties to impose stiff penalty on authors of unconstitutional changes of government and imposes obligations on State Parties to cooperate and extradite authors of unconstitutional changes of government.35The Addis Charter offers a complete legislative intention to the Lomé Declaration that revolutions are not unconstitutional change of government. They constitute part and parcel of the extra-constitutional right of the people to change their governments.
1.5 Revolution as Extra-constitutional Right of the People
The Right to Revolution as stated by John Locke is not only entitlement of the people, but also obligation when a government breaches the trust it enjoyed from the people.36 The people are the ultimate bearers of all political power. State exercises power by delegation. It is an agent of the people—the principal. Thus, people have all the right to change governments when they wish. When the agent acts beyond, or abuses, its power as delegated to it by people, they have the right to revoke that delegation and agency. Such change should normally happen through constitutional means, such as regular elections or vote of no confidence. However, when such constitutional means is non-existent or is deliberately rendered meaningless, the people have the right to rebel against its government. Revolution, therefore, indicates the act of taking power back by the people.
Since revolution is carried out above the normal procedures of a constitution, it becomes extra-constitutional. The legal and philosophical perspective of the right to revolution rests on its extra-constitutional nature. This has to do with the conceptualization of constitutions and conventions as evidence of the existence of fundamental human rights, not as the source. Fundamental human rights are not made by a constitution. As a universal, inalienable and inviolable entitlement of being a human, they exist even without the constitutions or conventions. The right to revolution becomes extra-constitutional as people have the right to activate their latent right to change a constitution and a government. The conventions and constitutions catalogue human rights and serve as evidence of the social contract. Provisions of human rights provided in a constitution are constructs to make references much easier. Thus, a constitution is meant only to serve as a common and easy reference. One can assume that extra-constitutional nature of the right to revolution lies in this conceptualization of revolution as a fundamental human right.
Historically also, all revolutions begin as some sort of quest for radical change or substantial reform in governance. It is the lack of credibility in the action of a government that turns protests to be quite popular to intimidate or appease through some minor changes. When the ladder through which the government took power, and which would be used to bring the government down has been removed, the only way to oust the government is to overthrow it through popular protest and revolution. People, collectively, have the right to extra-constitutionally change such a government. Revolution expresses the general will and capacity of the people to change governments that refuse to reform meaningfully to meet the demands of the people. Hence, thinking politically and legally, revolutions by definitions are legitimate. Similarly, both Thomas Jefferson and Alexander Hamilton invoked the right to rebellion as a last resort when their rights are violated. The power of a state emanates from the will of the people through elections and constitution that respect the right of the people. In the exercise of political power, people, as the principal, are the bearers of power, and the state is an agent.
The state as an agent exercises power by delegation. When the agent misuses or abuses this delegated power, the people have the right to revoke the delegation/agency. In a more precise formulation, when a minority in number usurps majority power and imposes its interest on the majority in number, it becomes an unconstitutional regime. A system that supports the minority to exercise majority power inevitably faces revolutionary uprisings. In a simple manner, when such revocation of power happens by popular protest, it constitutes a revolution. In the course of revolution, people take state power (legislative, adjudicatory and executive power) back into their hands for a brief time of transition. At the time of revolution, excessive measures are taken due to the absence of separation of power. This endangers constitutionalism that limits majority power on minority rights. At such times, the AU could assist countries facing revolts to ensure democratic constitutionalism: a rule by majority in number that also respects the rights of the minority in number. In short, revolution is a transformer of the latent power of the people to active exercise of state power.
To differentiate revolutions from unconstitutional changes of government as in the Lomé Declaration, one has to look to the conditions that warrant the right to revolution. These are:
i. Violations of substantive rights: systemic violations of constitutional values including human rights;
ii. Violation of trust of the people: government has fiduciary duty to the governed, when the government deliberately and systemically violates the declaration of trust; and
iii. Absence of constitutional mechanisms for redress: the lack of or systemic manipulation of constitutional mechanisms of solving or redressing.
Popular protests need to be credible both internally and externally. Substantively, it is important to show that the rights of the majority to rule, and the rights of the minority to be respected, are violated when there are widespread grave, gross and systemic violations of human rights. Nevertheless, not all kinds of violations of human rights constitute a cause for revolution. Some qualifications are necessary here. The human rights violations need to be systemic and widespread to form a ground for revolution. “To be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term “gross” refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule.”37 While “gross” relates to the extreme nature and a massive degree of violation of human rights, the word “systematic” refers to violations that are deliberately planned and methodically coordinated. These violations are not attributable to the act of an individual. Neither do they refer to separate and solitary incidents of violations of human rights. It is the systematic method and gross nature of the violations that area of concern to the international community, the AU and other member states to act in support of revolutions to stop such systematic and gross violations.
Procedurally, it is important that the public believes that there is no mechanism to redress complaints of violations without change of government through constitutional means, or institutionally, if there are no democratic institutions such as an election commission to run free and fair elections, national human rights institutions to trust, or judicial organs to seek independent relief as well as a parliament to represent the popular view. The
prime virtue of a state is to be just and to do good to all its citizens. The government has to be subject to the aggregated will of the people with their diverse religious, cultural or ethnic preferences. Such an aggregated will can be expressed by constitutionalism, which stipulates the principles and interests commonly shared by all, and the areas and interests that are peculiar to specific groups. A system that puts the minority in power to dictate the fate of the majority in number is unjust and needs to be replaced by a more just government. In countries where human right violations are systemic and endemic as well as where regime change is constitutionally impossible, revolution is highly probable. In a system where the judiciary and other constitutional institutions are undermined, where the rule of law and other constitutional procedures are deliberately and effectively misused or total abandoned, the safety valve that could diffuse a revolution will disappear. In many African countries including Tunisia and Egypt, elections have been reduced to a mockery. This leads to the conclusion that constitutional change of government is impossible and requires not less than a total revolution to regain the people’s power to elect the government.
Therefore, in a country where the only remaining option to change these three conditions is revolution, and where the people demonstrate the capability, revolution constitutes the will of the people and becomes a means to attain legitimate expectations of the masses. While unconstitutional changes of government mainly means replacement or emplacement of a government through illegitimate means such as coups d’état, in essence, only revolutions are legitimate extra-constitutional change of government.38 In a nut shell, unconstitutional change of governments ends in a situation where few are against all, while in the case of revolution; all people are against the incumbent few. Consequently, revolutions are compatible with the AU normative frameworks.
As with any right of human beings, the right to revolution in the face of repressive and irreparable government is universal, inalienable and inviolable. It is universal in the sense that every human being is born as natural bearer of the right to revolution, and it is inalienable and inviolable that this right is intrinsically part of being a human. The extra-constitutional nature of revolution is based on the idea that the will of the people is above any constitution, that a constitution serves as an evidence of the will of the people, that people through their action should have the right to change a government or a constitution when they feel that the set of rules, procedures and institutions somehow do not address their concerns. Revolutions are extra-constitutional means of ensuring the will of the people and their legitimate aspirations when people’s rights to change governments constitutionally are made impossible. Both the Addis Charter and the Lomé Declaration provide detailed blueprints for constitutionalism to avoid changes of governments through revolutions, uprisings, revolt and crises. The preambles to the Lomé Declaration and the Addis Charter point out that peaceful, democratic and stable Africa is possible only when governments promote constitutional governance.
The question now is what constitutes a revolution? The events in North Africa were dubbed as “crises”, “uprisings”, “popular protests”, and “revolutions”. The word “crisis” negatively refers to unexpected events that may lead to uncertain future and dangerous times of instability.39 While the North African events were, indeed, unexpected and the fate of these countries is far from certain, nonetheless, “crisis” is too negative a word to describe the popular protests in Tunisia and Egypt. The word “uprising” refers to revolt by a limited segment of the society. It involves localized armed insurrection with narrow popular base. Perhaps, the Libyan case can be expressed as an uprising. Revolution requires not only protests or uprising; it must enjoy a broad-based and popular support. With broad-based popular support, the size of the population and the degree of participation of the people in the protests make revolution a real expression of the aspirations of people compared to an uprising, insurrection or revolt. Unlike crisis and uprising, or insurrection, revolution is inherently extra-constitutional in its objective and nature. More importantly, it also needs to end an existing regime and install a new regime in its place. Thus, revolution is determined not only by the popularity it enjoys among the masses but also by the replacement of a government and the radical change it introduces.
Many writers would agree that the popular movements in the United States of America in 1776, France in 1989, and Iran in 1979 were true revolutions. The Thailand Red-Shirt popular protest (rural people marching against the Bangkok Government) has all elements of a revolution. However, it was crushed forcefully by tens of thousands of strongmen from the military and security forces. The Thai protest implies that popular protests need to get rid of an incumbent government to be considered a revolution. Hence, for a broad-based popular protest to become revolution, the protest needs to topple the government, dismantle previous regime power bases, and bring an overhaul in governance culture. What is more, revolution presupposes the popular protest that aims at a total change of an incumbent government and discontinues its system of governance.40 Revolution is an expression of the legitimate intention of the general public to entirely transform an incumbent government with a complete break from the previous government. Accordingly, while the North African revolutions constitute all elements of a revolution, however, some aspects of a revolution, specifically the second element (the total change of the previous governments), still remains unfulfilled, at least in Egypt.
1.6 Revolutions and Constitutionalism
The will of the people is constitutional only when it does reflect legitimate aspirations of the public, including that of the minorities. In some instances, revolutions may end up in pursuing illegitimate aspirations. The Third Reich of Germany under Hitler is a good example. Even if popular protests in the streets were the main forces that put Hitler in power, the total abolition of any mechanism of constitutional check and balance on his government and personal will made his government illegitimate and beyond repair. Thus, while the preconditions stated in “the credibility test” for revolution were abundantly present in the Third Reich, it was impossible for citizens to carry out popular protest due to the totalitarian nature of the state in controlling all public space. The same can be said about the October Russian Revolution during Lenin’s and Stalin’s regimes.41 In effect, even if the elements of broad-based popular protests and legitimate aspirations of the people were discernible in both the German Third Reich and the Soviet Russia cases, they, however, led to governments that are constitutionally unconstrained. Historically, some revolutions have led to a more totalitarian regime than the previous one. Similarly, the 1974 Ethiopian Revolution was supported by all segments of the people from all walks of life. Hijacked by a military junta-the Derg-the end of that revolution was a military dictatorial regime. In spite of bringing about a total change in government and governance system, such revolutions failed to meet the criteria of being considered constitutional.
II Origins of the North African Uprisings and the AU
For many citizens in countries affected by the uprisings, while freedom from hunger is a basic request, nevertheless, freedom from fear takes precedence in their demand for change of governments. The protesters demanded for both democracy and delivery together, and to ensure their freedom to deliberate and decide on how their countries should be run. The Tunisian protest started with the self-immolation of an impoverished street vendor, Mohamed Bouazizi, who lost all hope due to the rampant corruption in his country. Inspired by the Tunisian uprising, popular protests in Egypt and Libya have led to a significant awakening of the populations of these and other countries, particularly the youth.
There were three peculiar sources of strength for the revolutionaries: the young age of the overwhelming majority of the protestors; their numbers were too large to be controlled or intimidated; and their composition was from all walks of life, which made it difficult to divide and rule. The young ages of the revolutionaries generated the determination to seek change with the hope that such change would be for the better. The sheer numbers of demonstrators exuded fearlessness and perseverance among the populace, while it induced fear and caused rift among the leadership of the various besieged governments on how to respond to the protestors. Government forces, including the respective military establishments, tried to disassociate themselves from their political leadership when faced with such determined large widespread protests that were very difficult to control through the use of brute force.
The North African revolutions revealed that the presence of conditions for popular protest is not sufficient. The agents of change—the revolutionaries, media outlets and social networks, play more important role than the material or social circumstances that may warrant revolution. For revolution to succeed, protests need to be supported and actively followed by a majority of people drawn from all walks of life and communities. An overlapping consciousness among various sectors of a society and increased awareness and belief that citizens can chart their country’s destiny determine the ultimate success of a revolution.42 In this regard, the key issue is what may be termed “the Coordination Capabilities”. The coordination capabilities that refer to the opportunities and resources for coordination among the protestors play a vital role for mobilization and concerted action against the government, for revolutions to succeed. The revolutions in North Africa were without any clear and individual leader of the traditional types of revolution due to the risks involved in leading such revolutions. For protestors, the challenge relates to mobilization of politically fragmented groups through coordination. The absence of social platforms makes coordination very difficult and risky. In Libya, lack of social and other organizations limited the mobilization of popular protests. Tribal links offered the trust needed for social mobilization.43 A government’s failure to detect and analyse coordination among protestors, and its weakness in coordinating an effective response, increased the likelihood of a revolution. Similarly, and perhaps more importantly, protests turn into revolution only if the government is unable to coordinate its different arms to effectively respond to the protests. Only a government that lacks the capabilities to coordinate fails to effectively respond to protests.
Expressed briefly, protests turn into revolution when a government is unable or unwilling to satisfy the demands of, or subdue, protestors. A government’s weakness could be due to fear of security forces being implicated in the anti-revolutionary camp, or the presence of serious divisions within the elite that control the government. This coordination incapability becomes pronounced particularly when the military refuses to cooperate with the government. Lack of coordination within the government significantly increased the chances for the success of the revolutions in Tunisia and Egypt. As shown in the recent election in Thailand, the victory of the Red-shirts implies that they had the popular support they needed to engage in revolution. Nevertheless, due to the capacity of the government to coordinate its security forces, the Red-shirts protests were disrupted and the government was able to sustain itself for some time.
2.1 The Libyan Uprising
The Libyan uprising began with a protest in Benghazi on 15 February 2011. A report from the former Qaddafi regime confirmed that “there were peaceful demonstrations before and on the evening of 15/02/2011.”44 These protests turned into a riot, and later on, there were a number of armed revolts in many parts of Libya. In chronological order of events, there were three stages between the first protest in Benghazi and the death of Colonel Qaddafi on 20 October 2011. Early on 15 February 2011, relatives of the prisoners of Busalim victims organized a demonstration in Benghazi, and they went on to protest against the burning of the Busalim prison. Mr. Fathi Trbal, a lawyer, and Mr. Atf Alatrash called upon the protestors to help the prisoners by saying ‘help your sons who are burning in prison’.45 The intention was to free prisoners and get to the attention of media outlets such as the Aljazeera TV Channel. The main protest was held on 16 February 2011 at Shajarah Square in Benghazi. This time, the requests of the protesters were not limited to the release of prisoners such as Mr. Fathi Trbal. It turned out to be a demonstration seeking a change of government in Libya as had happened earlier in Tunisia and Egypt.
Subsequently, the demonstration in Benghazi went out of control. The government forces and institutions, such as police stations, intelligence and army barracks were destroyed and abandoned. Albadah and Zenthan were no different from Benghazi. Later on, the uprisings expanded and resulted in the control of government institutions including courts, administrative offices, and even banks by the rebels. While the army was instructed to withdraw from these cities, the protests spread to other cities such as Almarag, Darnh, Ejdabyah, Albraqah, Zawya, the Western mountains and Alenekat Alkamsah. As the protests started to be organized more effectively, groups begun to break into army warehouses and take arms. At this juncture, the protests reached the stage of an armed uprising after the demonstrators armed themselves. At this stage, the groups organizing the protests became public and began to officially take responsibility for the overall situation in the Eastern part of Libya. The National Transitional Council (NTC) officially declared itself to be the alternative government in Libya. The NTC began to create a front comprising all internal and external actors against Colonel Qaddafi’s regime. The Front included some defecting army units in Albadah, Sahaat, Benghazi, Tobruk, Ajdabiya and other locations, led by Major General Abdel Fattah Younes, the Interior Minister, and the Islamic Group for Change and Reform, with the support of some member states of NATO and the Arab League. With the defection of the army, huge quantities of heavy weapons as well as military installations including tanks, guns, air and naval bases fell into the hands of the revolutionaries.
There were subsequently reports that some forces of the NTC arbitrarily arrested and summarily executed or tortured Libyans including black Libyans and African migrants on the assumption that they had served as mercenaries for Qaddafi’s forces. These acts, if proven true, would amount to inhuman and degrading acts in violation of Article 5 of the African Charter to which
Libya is a party. Recent reports of international advocacy organizations, such as Human Rights Watch and Amnesty International, have exposed serious human rights violations by revolutionaries acting against pro-Qaddafi Libyans and foreigners.46
2.2 AU’s Normative Frameworks and its Response to the Libyan Uprisings
The North African uprisings offered a rare chance for the AU to assert its mandate of promoting democracy in the continent. Caught by surprise, the AU, as did all the other institutions of regional and global governance, responded in a reactive and sometimes an incoherent manner. In its usual sluggish style, the AU also responded by calling for an end to the disproportional use of violence by the government and supported the legitimate rights of the protestors.47 Given the history and posture of the Qaddafi regime in the wake of the uprisings in Benghazi and the possibility of mass killings, it was perfectly understandable for the international community, reinforced by supporting the UNSC resolutions, to decide to intervene to protect civilians from Qaddafi’s excessive use of power. In an interesting convergence of positions, the AU, like the League of the Arab States, also supported these resolutions directly and through individual African members in the UNSC.
The convergence of positions between the AU and the UNSC did not last long. The discrepancies in the interpretation and differences in implementation of the UNSC resolutions started to appear after the airstrikes by NATO. The intervention by NATO exacerbated divergence. While NATO sought a Libya without Qaddafi, the AU pursued an inclusive democratic transformation process in Libya regardless of personalities. This position was elaborated in the AU Roadmap for Libya. The AU Roadmap, although the only political plan on the table, was effectively ignored by the UNSC and the international community, including NATO. In March, 2011, when the AU High-Level ad hoc Committee on Libya requested authorization to fly to Libya, in accordance with the AU Roadmap, it was barred from doing so by NATO.48Indeed, this was the turning point with regard to the AU’s position on the involvement of NATO and the most proactive members in the airstrikes in Libya, notably France and the UK. Military leaders from the UK, such as General David Richards, had regime change as the preferred objective of the NATO airstrikes. Thus, NATO was not only targeting the military capability of the Qaddafi regime that threatened civilians, but it was also after the regime itself.49 For this, General Richard supported the bombing of civilian infrastructure such as fuel depots, electrical grids and bridges.50Such attacks are prohibited by International Humanitarian Law as infrastructures are considered as civilian objects protected from military attacks.51 Such a pronouncement is not only in violation of the UNSC Resolution 1973,52 but also in contravention to the International Humanitarian Law. It contravenes with the ultimate end state of a revolution that is the transformation of Libya to a democratic state where people enjoy resources to develop their country. Immediately, Uganda’s President Yoweri Museveni and other leaders called for AU’s extraordinary summit.53Recognizing that Libya oil resources would undoubtedly attract many internal and external forces to the conflict, the AU 2011 Summit expressed its concern regarding the Libyan people’s ownership of Libyan resources, and the need to ensure the country’s unity and territorial integrity. The same concern was expressed by the PSC of the AU earlier.54 This divergence in positions emanated from the difference in interpretation concerning the purpose of the intervention authorized by the UNSC. The airstrikes by NATO changed from that of ‘the protection of civilians’ to ‘the protection of rebels’, of whom many had formerly been civilians.
2.3 AU’s Efforts to Resolve the Crisis
The AU believes that NATO’s bombardment of Libyan cities contravenes the letter and spirit of the UN resolutions. Moreover, for the AU, the intervention in Libya’s civil war without consultations and the support of the AU policy organs was considered as disrespectful to its mandate on peace and security issues as Africa’s premier multilateral organization. Despite being caught by surprise, the AU, as of February 2011, was seriously engaged in solving the crisis in Libya. On 23 February 2011, a few days after the first protest in Benghazi, the PSC and the AU Commission Chairperson issued a communiqué condemning the “indiscriminate use of force and lethal weapons, whoever it comes from, resulting in the loss of life, both civilian and military, and the transformation of pacific demonstrations into an armed rebellion.”55 The same communique provided the main elements for the establishment of the Ad-hoc Committee of Heads of States led by the South African President, and the preparation of a political roadmap –the only political document at that time. It called for a ceasefire by the Government of Libya and the NTC. The PSC, in its 25th meeting on March 10, 2011, established the Ad hoc High Level Committee. The Ad hoc Committee was mandated to “facilitate an inclusive dialogue among (the Libyans) and engage AU partners, as part of the overall efforts for the speedy resolution of the crisis in Libya.”56 In its first meeting on 19 March 2011, the Ad hoc Committee decided to engage with all the parties in the crisis and to facilitate dialogue between those parties with the aim of undertaking the necessary reforms in Libya.57 In so doing, the Ad hoc Committee explicitly decided to seek the support of, and coordination of its work with, the League of Arab States, the Organization of the Islamic Conference, the European Union and the United Nations.
2.4 The AU Roadmap
On 25 May 2011, the AU Extraordinary Summit on Libya expressed its “deep concern at the dangerous precedence being set by one‐sided interpretations of [the UNSC] resolutions, in an attempt to provide a legal authority for military and other actions on the ground that are clearly outside the scope of these resolutions, and at the resulting negative impact on the efforts aimed at building an international order based on legality.”58 Furthermore, it endorsed the AU Roadmap and also called upon both the Government of Libya and the NTC to comment on the Roadmap. On 26 May 2011, the AU forwarded the AU Roadmap through the Ad hoc Committee to both parties and other actors in the Libyan crisis.59It also called for, and conducted, consultations with the Government of Libya and NTC in Addis Ababa. Moreover, the AU Commission facilitated a meeting of Libya’s neighboring countries and requested neighboring countries to offer asylum to migrants from Libya. At the same time, many former African leaders expressed their support for the AU Roadmap and opposed NATO’s intervention.60 Renowned African personalities such as Archbishop Desmond Tutu and leaders such as Jacob Zuma also condemned the killing of Gaddafi without a trial.61 In official letters and speeches, current and former heads of state such as Yoweri Museveni, Thabo Mbeki and others opposed to the intervention of NATO.62 Both Museveni and Mbeki believed that the NATO intervention in Libya revealed that the Western countries still believed that ‘might is right’.63
The AU Roadmap provided political solutions to deal with the crisis in Libya through dialogue fo
r the transformation of Libya to a democratic system and respect for the sovereignty and territorial integrity of the country. The AU Roadmap had four major components (1) the immediate ceasefire that would bring a cessation of all hostilities and provide an environment for humanitarian aid, to allow the Ad-hoc Committee and other mediation efforts and observation missions to commence, in order to enable the safe return of foreign nationals and migrants to their countries of origin and to commence a dialogue; (2) the cooperation of the concerned Libyan authorities to facilitate the diligent delivery of humanitarian assistance to the needy population; (3) the protection of foreign nationals, including African migrant workers living in Libya; and (4) the transformation of the Libyan political system and implementation of political reforms necessary for the elimination of the causes of the crisis.64Colonel Qaddafi expressed his agreement to cooperate with the AU Ad hoc Committee in implementing the AU Roadmap.65Calls for a ceasefire were made by Colonel Qaddafi’s regime as from April, 2011. Many international actors, including the AU, the Arab League, Russia and the Vatican supported a negotiated resolution of the conflict.66 The UN Secretary General, Ban Ki-moon, also urged a “verifiable ceasefire towards the peaceful resolution of the conflict and unimpeded access to humanitarian workers.”67 The regime also accepted UN and AU observers and peacekeeping missions.
In support of the Ad hoc Committee’s position, the AU Extraordinary Summit expressed its conviction and support for a political solution to the crisis in Libya.68 It said “that only a political solution to the current conflict (would) make it possible to promote sustainable peace in Libya and fulfill the legitimate aspirations of the Libyan people to democracy, rule of law, respect for human rights and good governance, as well as preserve the unity and territorial integrity of Libya.”69 It also called for an immediate cessation to the fighting and the NATO‐led air campaign. It said, “the Assembly (was) of the well‐considered view that the continuation of the NATO‐led military operation (defeated) the very purpose for which it was authorized in the first place, i.e. the protection of the civilian population, and further (complicated) any transition to a democratic dispensation in Libya.”70 With a fear of having similar intervention by NATO in Libya and other external forces, the AU strongly rejected “any kind of foreign military intervention”71 violating the sovereignty of its member state. Countries such as Equatorial Guinea, which was the chair of the AU for 2011, Uganda, Zimbabwe, South Africa and Algeria, opposed the intervention vehemently for various reasons, although South Africa had supported the UN Resolution 1973. While leaders of countries such as Equatorial Guinea, Zimbabwe and Uganda were concerned with similar external interventions in their countries due to their precarious situations, Algeria’s concern emanated from fear of an unknown future government on its border, particularly Libya and the possibility of the rise of an extremist Islamic political force. Furthermore, Museveni and other leaders objected to the way African members of the UNSC had voted to support Resolution 1973. Museveni wrote:
“The African members of the Security Council voted for this Resolution of the Security Council [1973]. This was contrary to what the Africa Peace and Security Council had decided in Addis Ababa recently. This is something that only the extra-ordinary summit can resolve. It was good that certain big countries in the Security Council abstained on this Resolution. These were: Russia, China, Brazil, India, etc. This shows that there are balanced forces in the world that will, with more consultations, evolve more correct positions.” 72
For South Africa, the manner of intervention by NATO was unacceptable. This reaction is partially due to the close relations between the African National Congress, the ruling party and its leader, President Jacob Zuma, and Colonel Qaddafi’s regime.73Later on, Zuma opposed the interpretation of the resolution by NATO members. The AU also expressed its dissatisfaction with the attempts by various international organizations to marginalize the AU, its Ad hoc Committee and its Roadmap. In some quarters of Africa, this was considered as an effort that undermined the AU’s approach to “African solutions to African problems” as provided by the AU Roadmap.
2.5 The AU Judicial and Legal Advisory Bodies
A judicial organ of the AU, the African Court on Human and Peoples Rights (the Court) in its 20th Ordinary Session in Arusha, Tanzania, from 14 to 25 March 2011, issued an order for provisional measures in relation to an application received from the African Commission on Human and Peoples’ Rights (the Banjul Commission).74 The Banjul Commission accused Colonel Qaddaffi’s regime of serious and widespread violations of human rights.75 This was the first time that the Court was presented with an internationally politicized case for its adjudication. The Banjul Commission accused Colonel Qaddafi’s regime of major crimes of repression by Libyan security forces directed against peaceful demonstration in February, 2011, the use of heavy weapons and machine guns against civilians, as well as the use of mercenaries and extra-judicial killings of civilians and members of the revolt.
A response was submitted to the Court by Colonel Qaddafi’s regime that included a report covering the period between 10/2/2011 and 15/5/2011.76Colonel Qaddafi’s regime, in its response to the African Court requested the dismissal of the case against it “in order to give the peace process that (was) commenced by the AU to bring all actors to agree under the AU Roadmap … as per Rule 40 (7).”77The regime pointed out that “the huge loss of life and harm to Libyans and foreigners in Libya emanates from the actions of the rebel groups and the NATO barbaric bombardment.”78 It accused NATO of “attacking civilians and civilian objects including hospitals, residential houses, telecommunication infrastructures used by civilians.”79 There was, of course, no way of determining whether Qaddafi’s forces had been involved. Qaddafi’s government referred to the “bombardment targeting any existing socio-economic infrastructure that is used by civilians in their daily life constitutes grave violation of all international norms particularly the Geneva Conventions Relating to the Protection of Civilian Persons in Time of War (Geneva Convention No IV) as well as the Customary Rules of International Humanitarian Law as provided under Vol. 87, No. 857 Customary Law, and International Review of the Red Cross, the UN Security Council Resolutions and AU treaties.”80 Col. Qaddafi’s regime further argued that the NATO bombardment and actions of the NTC were causing more civilian causalities than the actions of the government. The Court called the AU and its organs, particularly the AU Commission and the Peace and Security Council, to speed up their efforts to implement the AU Roadmap.
2.6 The African Union Commission on International Law (AUCIL)
The United Nations Security Council Resolution 1973(2011), adopted on 17 March 2011, imposed a no‐fly zone over Libya mainly with an intention to protect civilians. NATO, under the leadership of France and the UK, began to implement the reso
lution through an airstrike campaign. Discrepancies in interpretation and divergence for implementation of the UN Resolution 1973 emerged and later widened the difference between the AU and NATO as well as the UN. As a result, the PSC requested the AU Commission on International Law to provide legal opinion on the ‘the scope and legal implications of United Nations Security Council resolutions 1970 (2011) and 1973 (2011) on the situation in Libya, including obligations of Member States of the United Nations, including African States, arising from the two resolutions’.81 Accordingly, the AUCIL concluded that the AU Roadmap provided a more comprehensive and legal mechanisms to resolve the Libyan crisis within the UN resolution.82 The AU Roadmap and Resolution 1973 called for a cessation of hostility and a credible ceasefire by all the parties. Such a monitored ceasefire, according to the AUCIL, “(would) make it unnecessary or unattractive for the international community to carry out or sustain some of the measures or sanctions already taken or being contemplated in favour of one side to the conflict.”83 One can conclude from the reports that AUCIL believed that NATO and the international community in general had sided with the rebels. However, it did not come out clearly on this issue by explicitly stating such a view.
With regard to Resolution 1973 that authorized the use all necessary means to protect civilians and implement the resolution, the position of AUCIL was not clear. It only termed the mandate as “broad”.84 In its first important assignment, the AUCIL failed to forward concrete legal recommendations. In a very unclear and obscure manner, it suggested, in its report, that the means and the end result of the interventions in Libya should be “lawful and permissible”.85 The actual question that the AU was requested to answer was how Resolution 1973 should be interpreted, and whether the intervention of NATO in Libya was “lawful and permissible”. The AUCIL failed to offer meaningful and relevant legal advice to the AU. In a very vague manner, it recommended that “the obligation of states (had to) relate not only to the attainment of the objectives or results to be achieved under resolutions 1970 and 1973, but also the means and method by which (those) objectives (were) pursued”.86
In a more futuristic and indirect manner, the AUCIL pointed out that the Libyan crisis and the divergence of position between the AU and other actors such as the UN and NATO could be seized as an opportunity to “define the regional-global security partnership with the UN”.87 It called for “greater involvement of the AU in dealing with the prevailing complex Libyan situation… The Libyan situation presents a possibility and an opportunity to fulfill the promise of giving a greater role for the AU in resolving conflicts on the continent in accordance with the recent evolution of the partnership between the UN Security Council and the AU Peace and Security Council in resolving and addressing issues of peace and security in Africa.”88 It also recommended consideration for the suspension of investigation and prosecution by the ICC on Libyan cases referred to it by the UNSC.89
The external factors and forces that actively and directly supported the uprising in Benghazi and the resultant civil war and bombings by NATO raised several vexed questions with regard to the nature of the change of government in Libya. As per the AU Normative Framework, particularly the Lomé Declaration, the military nature of the NTC and the involvement of mercenaries in the civil war make the change that took place unconstitutional.90Given the history and posture of the Qaddafi regime in the wake of the uprisings in Benghazi and the possibility of mass killings, it was perfectly understandable for the international community, and through UNSC, to decide to intervene to protect civilians from Qaddafi’s excessive use of power. However, the purpose of the bombing changed from that of “the protection of civilians” to “the protection of rebels” as we now see it. Were the “rebel groups”, the NTC members “civilians” in the spirit of International Humanitarian Law? Will the killing of Qaddafi reduce attacks on civilians or increase death and suffering as it did in the cases of Iraq and Kosovo? The purpose of the bombing has undergone rapid metamorphosis from “Qaddafi not a target” to “Qaddafi as a legitimate target” of the airstrikes. Moreover, the AU Roadmap is the only political map that exists, but it has been ignored by the UNSC and the international community, including NATO. Both the Qaddafi and the NTC employed foreigners in their military operations.
Given that the NTC is not an association of civilians, but of armed groups with a chain of command, it is treated as non-civilian groups under Humanitarian Law. Besides, it has recently been accused of systemic violations of human rights, including summary executions of former members of the Libyan government, arbitrary killings of civilians opposing the uprising and abuses of migrants from Sub-Saharan countries. The government change in Libya could be considered as unconstitutional for two reasons: the armed nature of the NTC, and the involvement of foreigners in the civil war. The reports of the involvement of European agents supporting the NTC in the control of Tripoli actually affirm the unconstitutional nature of the change of government. Mercenarism, both in the AU and UN conventions, is considered as a crime against peace and security. It defeats the will of the people, the sovereignty of a state, and the right of the people to self-determination. When mercenaries engage directly or indirectly in conflicts on the African continent, such intervention is considered as a subversion of the will of the people. Thus, in effect, mercenary intervention is the antithesis of proper revolutionary and constitutional changes of government
Both Qaddafi and the NTC employed foreign mercenaries in their military operations.91Several media reports, particularly newspapers in Niger, Chad, Sudan, Nigeria, Guinea, Angola, Mali, Liberia, Mozambique, and Ghana, either carried advertisements for mercenaries (2500 USD per day), or referred to the involvement of their nationals in the armed conflict. Many media organizations, including Reuters and Al-Jazeera, reported that more than 2000 African, Arab and East European mercenaries, including 500 Polisario mercenaries, were fighting on the side of the Qaddafi government. In fact, Qaddafi’s government admitted the presence of non-Libyan soldiers in the Army. However, it defended such involvement as legal and a long-term practice under Libyan Law. In a Libyan Government report submitted to the UN Human Rights Council, the Qaddafi government admitted that there were more than 200 foreigners in the army drawn from ‘friendly and brotherly countries’ such as Egypt, Tunisia, Sudan, Chad, Mali and Niger, among others.92 The NTC and some foreign governments now deny the presence of mercenaries in Libya. However, according to some reports, private military companies from Latin America and Middle Eastern countries have been engaged in the armed conflict, servicing both sides of the civil war. Similarly, several media reports indicated the involvement of hundreds of mercenaries from the UK, the US, France and some Arab countries fighting on the side of the NTC. Al Jazeera video footage of a US war plane that crashed in the Benghazi area and the UK Foreign Secretary’s confirmation of UK military involvement in the armed conflict tend to confirm such reports.93For this and the above considerations, the recognition of the NTC threatened AU’
s normative frameworks governing unconstitutional changes of government.
III. Universal Consequences of the North African Revolutions and Contextual Peculiarities of the Sub-Saharan Countries
The consequences and implications of the North African uprisings on the rest of Africa will ultimately be determined by many factors, including the local context and governments’ readiness to learn and adjust. The universal consequences of the North African revolution will be determined according to the contextual peculiarity of each country, which will depend on the popularity the current leader enjoys, the legitimacy (pockets of legitimacy sources) of a government, and the public belief in the possibility of having regime change without resorting to revolution or uprising. Looking at the differences in the handling of the protests by the respective governments of Libya, Syria and Yemen as well as Morocco and Algeria, and recently many other African countries such as Uganda, Sudan, Burkina Faso, Senegal, Malawi, Mozambique and others, it may be said that governments that are under threat learn fast regarding how to react (though not always in the right direction) to popular uprisings. Differences in the outcome of the protests testify to the diversity of outcomes of revolutions and protests, and the various governmental responses.
3.1 Implications for the Institutions of Regional Governance: the AU, RECs, and Member States
To the African Union and its Regional Economic Communities (RECs), the uprisings have taught important lessons. Their normative frameworks need to be interpreted creatively to support such widespread popular protests when the causes of these protests are legitimate. The AU institutional setup needs to be nimble and firm by avoiding unnecessary bureaucratic processes that characterize their sluggish culture of responding to events. The AU member states will not always willingly bestow on the AU the authority to exercise some of its mandates as provided under the Constitutive legal instruments. While there exist robust mandate for intervention on paper, member states will always be reluctant to put it into practice. This could happen due to political reasons, national interest, and discrepancies in the assessment of facts. Indeed, the AU and its organs need to exercise robustly the mandates that are conferred on them. In some historical instances like the North African uprisings, they must exercise authority by creatively construing and expanding their already existing mandates. Such an approach should apply to all AU organs, particularly the most active ones, such as the Peace and Security Council, the AU Commission and the Assembly.
Thus, the AU has every duty to support all those demanding their governments to be more democratic and respect constitutionalism. Indeed, it is my opinion that, as stipulated in the Constitutive Act and other policies of the AU including the African Charter, the AU has to urge its member states to enable their populations to express their concerns and their legitimate aspirations for better governance and performance. By doing so, the AU would promote the values, institutions and procedures that the Addis Charter and the Lomé Declaration as well as other treaties and decisions have stipulated. To ensure smooth post-revolution transitions to democracy, the AU needs to get the Addis Charter ratified and implement the principle of democratic elections. In this regard, the responsibilities of the AU, especially that of the AU Commission, will be to ensure transitional elections are credible by working in due time in the preparation for elections, and sending verifying missions before election, during election and post-election periods.94 Finally, it is crucial to note that the best means to avoid uprisings and revolutions is democratic constitutionalism.
The Addis Charter and its provisions are designed for Twenty First Century African states. The ultimate aim of the Addis Charter is to capacitate, not undermine, member states of the AU in discharging their duties related to democratic constitutionalism and human rights. By reaffirming the re-conceptualizing of the principles of the right to revolution, the Addis Charter aims to build democratic constitutionalism that ensures accountability and transparency in the management of public affairs. In order to successfully discharge these responsibilities, the Addis Charter requires States Parties to shift their mission to entities with the prime responsibility to respect and protect the human rights of people and democratic constitutionalism. If sincerely implemented, the Addis Charter could serve as a tool for transforming African states to democratic constitutional regimes.
3.2 Implications for Development Partners, Dominant Powers and Major Actors
The implications of these uprisings for the African continent and the Arab World are enormous. In the historical context, they may be considered as the fourth wave of democratization in terms of the collective message they carry and their impact on policies of major actors at national and international levels. Samuel Huntington pointed out the end of the democratic wave after his ‘Third Wave of Democratization’, and he prescribed that some countries in Africa ought to seek stability first then democratise later.95 Both theses of Huntington seem to have been disproved by the North African revolutions. The notion that the wave of democratisation has ended has also been challenged, and the revolutions rather signify the beginning of what may be termed ‘the Fourth Wave of Democratisation’. What is more, the pillars upon which stability thrives are not limited only to performance legitimacy in which governments act like UNDP trying to improve on their provision of services and goods. Many African governments, including those toppled by the revolutions such as Tunisia, were encouraged by the international aid community and financial institutions to become “UNDP-like governments” who bank their power on their success in the delivery of goods and services. Political vision and freedom for the population in addition to constructions of infrastructure, expansion of education, health and agricultural extension programmes equally determine the mandate to rule a given population. For stability in economic reform to thrive, it needs to be supported by political reform. Indeed, the revolutions reveal that the mandate of a government to rule depends on the popular legitimacy the government possesses in the form of continued majority consent expressed by regular, free and fair elections. In actual fact, a government with popular legitimacy faces lesser protest than a government with only performance legitimacy. Toleration to various performance weaknesses of a government and inequalities in a community increases under a popular government elected democratically. Nonetheless, an elected popular government that does not met its election promises faces performance deficit and loses its popularity with time. In contrast, a highly performing government with limited popular legitimacy due to its limited political support may, in time, expand its political base and achieve popular legitimacy. Consequently, public protests arise due to demands for both democracy and delivery together. The most effective pre-emptive measure to avoid protest and revolutions for a government is to enjoy both performance and popular legitimacy.
The North African uprisings have even more serious implications for development partners and the aid community. For development partners, dominant powers and major actors sustaining authoritarian “UNDP-like” governments witho
ut popular legitimacy expressed by regular free and fair elections proves difficult if not impossible. Development partners and aid organizations (such as the UN and its agencies, the World Bank, EU and USA and their national aid agencies as well as international development organizations) need to examine their policies. Such introspective investigation would help to revise their assumptions and enable them to design new approaches. North African countries were considered, by many development partners, as insulated from disturbances of the kind many Sub-Saharan countries are now facing. The development partners measured the performance of these countries by statistics on the development index, economic growth or Doing Business Index. Foreign policies of major global powers such as the US, EU, China and Russia were also dictated by the perception that the regimes of the North African countries played pivotal roles in the fight against terrorism. The production of oil or the business interests of companies in the western countries have also influenced such perception of stability.
3.3 Recommendations to the AU, RECs and Member States
While the ratification of the Addis Charter is a milestone by itself, without effective implementation of its provisions, it remains another additional AU document. From the perspective of the implementation of the Addis Charter Convention, there are three important stages. These are: (1) treaty popularization; (2) treaty ratification; and (3) supervision of treaty implementation. The Addis Charter imposes duties on the RECs to popularize, speed up ratification and supervise the implementation of the Charter.96Approaches to the speedy ratification of the Addis Charter should consider several entry points by categorizing the member states of the AU. A bloc endorsement and a call for ratification of the Addis Charter by RECs facilitate the implementation of the Charter. Convening a special meeting of the club of democratic African countries (considered internationally) to discuss a bloc approach to ratifying the Charter would facilitate the process. This bloc approach could also be facilitated by the RECs using the existing Memorandum of Understanding between the AU and the RECs. As a means to ensure speedy ratification, popularization and closer compliance monitoring mechanism, the AU may have to assist RECs to design their own implementation frameworks. Such frameworks may spell out their individual and REC’s responsibilities through procedures for resource mobilization and other activities, when the need for intervention arises due to problems related to elections or revolutions.
As per Article 45, the AU Commission is the central body empowered to coordinate the supervision of the implementation of the Addis Charter including assisting the respective State Parties. In terms of the supervision of the implementation of the Addis Charter, the AU Commission may need to consider developing a mechanism for follow-up, such as the Conference of State Parties (CSPs). Such mechanisms may have three main components: Country Report from States Parties (SPs), Observations on Country Reports by the CSPs and Consolidated Progress Reports by the AU Commission. Each SP may submit to the CSPs and the AU Commission or the ACHPR a regular annual report on the progress made in the implementation of the Convention. These reports from SPs could deal with the entire Charter or with rounds of a cluster of specific provisions. The observations on the Country Reports review reports independently and could be done by the AU Commission, the African Commission on Human and Peoples Rights (ACHPR) and other relevant bodies including the Economic, Social and Cultural Council of the AU (ECOSOCC) and NGOs accredited to the AU. The observations should incorporate remarks on the Country Reports, recommendations for addressing the legislative and policy shortcomings, as well as resolving any implementation inadequacies.
The Consolidated Progress Report may analyze the country reports, the observations and recommendations formulated. It could also identify the areas for future focus in the implementation of the Addis Charter. This Consolidate Progress Report may also identify areas of weaknesses, strengths SPs, and facilitate the exchange of experiences, best practices and harmonization of measures, as well as identify areas of priority for capacity building, mutual assistance and cooperation. The Consolidated Progress Report could be prepared by the AU Commission, verified by the African Peer Review Mechanism (APRM) and could be validated by the RECs and CSPs. To this effect, Articles 43 and 49 of the Addis Charter offer specific duties related to the supervisory role of the AU and the AU Commission through APRM. The State Parties also have the duty to submit a two-year report to the AU Commission, and in turn, the AU Commission has to submit an implementation progress report to the AU Assembly which examines the reports and forward decisions. Since its establishment, the AU has mainly focused on policy formulation, and to some extent, on norm-diffusion by way of popularization and dissemination of policies and conventions. Consequently, the AU has more than 200 well-advanced legislative and policy frameworks on several issues including on democratic constitutional governance. These include 41 treaties and conventions of which 15 are yet to secure ratifications.97In some conventions, such as those dealing with refugees and internally displaced persons, the AU has taken a lead in norm setting business. Currently, the most binding constraint in the AU system is the gap between the norms set in treaties and policies on the one hand, and their implementation on the other hand. It is for this reason that the implementation of the existing legal and policy frameworks should take priority. Now, after ten years of its establishment, it is high time for the AU and all its organs to advance towards the norm-implementation phase of the existing treaties and policies. Progress in the implementation of existing policies will ultimately determine whether the AU and its member states will avoid any other uprisings in the continent which may claim the lives of citizens and lead to another decade of instability.
Conclusion
The North African popular protests employed different methods, but their message remains the same—people will revolt in countries where governments do not respect their will, and that governments have to enjoy widespread legitimacy or continuously face protests. The authority that governments exercise needs to emanate from the mandate entrusted to them by the people. Put in other words, even if one is uncertain about the respective future regimes, the uprisings indicate the difficulties of maintaining a government by manipulation and intimidation, and the need for constitutional governance. More importantly, they reveal that governance by sheer force would be a very risky undertaking for politicians and leaders. No matter how much a dictator manipulates a governance system, or intimidates the public by brute force, unforeseen circumstances and accumulated grievances may lead to a situation where public protest reaches a point of no return. Time is of the essence at this point. Plans for manipulation and intimidation would not necessarily dictate what kind of events trigger to revolution, which in turn, cannot be subject to the influence and power of individuals. The long-term trend is that tyrannical style of governance will be met with popular protests with international support.
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Notes
1Mehari Taddele Maru is Manager of the African Conflict Preventio
n and Risk Analaysis Programme and a former fellow of a prestigious programme at Harvard University. He holds a Doctorate Degree in Legal Sciences (DSL) from JL Giessen University, an MPA from Harvard University, an MSc from the University of Oxford and LLB from Addis Ababa University. Prior to joining the Institute for Security Studies (ISS), he was Programme Coordinator for Migration at African Union Commission. Dr. Mehari served as legal expert at the African Union Commission and as the Director of the Addis Ababa University, Office for University Reform. This paper benefited from comments made by participants at the Inter-Africa Group (IAG) Conference on the North African Uprisings and their Governance Implications for Sub-Saharan Africa which was held at the Sarova, PanAfric Hotel in Nairobi, Kenya, from 2-3 April 2012. My special thanks go particularly to the Executive Director of IAG, Ato Tamrat Kebede and Ambassador/Dr Samuel Assefa.
2 This is a revised version of a paper presented at the 284th AU Peace and Security Council and the Permanent Representatives Committee joint plenary session on strengthening the African Peace and Security Architecture (APSA) of the AU to improve the prevention, management and resolution of the crises emanating from popular uprisings in Africa (in partnership with the Institute for Security Studies (ISS), July 11, 2011. The contribution of ISS was recognized by the 18th AU Summit in January, 2012; see Report of the Peace and Security Council on its Activities and the State of Peace and Security in Africa, Assembly of the African Union, Eighteenth Ordinary Session, 29-30 January 2012, Addis Ababa, Ethiopia, Assembly/AU/6(XVIII).
3 African Charter on Democracy, Elections, and Governance, Assembly/ AU / December 147(VIII). The Addis Charter has already entered into force in January, 2012, with 15 ratifications from member states of the AU. Many of the principles of the Addis Charter are drawn from existing African and UN conventions and practices, thus enjoy universal acceptance from states.
4 OAU Assembly of Heads of State and Government, Lomé Declaration of July 2000 on the framework for an OAU response to unconstitutional changes of government (AHG/Decl.5 (XXXVI).
5 OAU Assembly of Heads of State and Government, the 1977 OAU Convention for the Elimination of Mercenarism in Africa (CM/817 (XXXIV) Annex II Rev.1).
6 This is a brief summary of the Author’s presentation made to the AU joint Plenary Session of the Peace and Security Council and the Permanent Representatives Committee on 11 July 2011 in Addis Ababa, Ethiopia.
7 Mehari Taddele Maru, Rethinking the North African Uprisings, The African Union Herald, Volume 2, October, 2011, www.au.int; The African Union Normative Framework and the North African Revolutions, presentation to the Joint Plenary Session of the Peace and Security Council and Permanent Representatives Committee of the African Union, Addis Ababa, Ethiopia, September 2011; Mehari Taddele Maru, On Unconstitutional Changes of Government: The Case of Libya; Institute for Security Studies, ISS Today, http://www.iss.co.za/iss_today.php?ID=1358(accessed 17 January 2012); Mehari Taddele Maru, How the AU Should Have Recognized the Libyan NTC; Institute for Security Studies, ISS Today, http://www.iss.co.za/iss_today.php?ID=1348(accessed 28 November 2011).
8 For a detailed discussion, see Mehari Taddele Maru, The First Ten Years of the AU and Its Performance in Peace and Security, No. 218-May 2012, ISPI Policy Brief, available from http://www.ispionline.it/it/documents/PB_218_2012.pdf (accessed 26 April 2012).
9 Morocco left the OAU, the predecessor of the AU, in 1984 when the OAU recognized the Western Sahara and Polissario Front.
10 Mehari Taddele Maru (2008) The Future of Somalia’s Legal System and Its Contribution to Peace and Development, Journal of Peace Building and Development, Vol. 4, No. 1, Center for Global Peace, American University, http://pascal.library.american.edu:8083/ojs/index.php/jpd/article/view/109/117(accessed 12 March 2011).
11 Mehari Taddele Maru (2011), ‘The Kampala Convention and Its Contribution to International Law’, Journal of Internal Displacement, Volume 1, No. 1, also available from http://journalinternaldisplacement.webs.com/announcements.htm (accessed 28 November 2011).
12 African Union Summit, Transition from the OAU to the African Union (noting that the purpose of the Extraordinary Session entitled “Strengthening OAU Capacity to Enable It To Meet the Challenges of the New Millennium” was to amend the OAU Charter to increase the efficiency and effectiveness of the OAU), available at http://www.au2002.gov.za/docs/background/oau_to_au.htm (last visited August 11, 2002).
13 African Union Summit, Transition from the OAU to the African Union, available at http://www.au2002.gov.za/docs/background/oau_to_au.htm (last visited August 11, 2002).
14 Article 4(h) of the Constitutive Act stipulates “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” and Article 4 (j) which states the “the right of Member States to request intervention from the Union in order to restore peace and security.” These formulations are put as a “right” and not an “obligation”. Nonetheless, they are conceived of rather as the duty of the AU and member states when grave circumstances prevail in another member state.
15 The AU Constitutive Act of the African Union, OAU, ‘Decision on the Establishment of the African Union and the Pan-African Parliament’, AHG/Dec.143(XXXVI).
16 Guy Goodwin-Gill, The Refugee in International Law (Second Edition, Clarendon Press Oxford 1996) Pp. 4-6.
17 Apart from the peacekeeping missions and other interventions that AU approved, the newly adopted Kampala Convention on internally displaced persons, the responsibility for addressing the plight of IDPs is placed on all states. In line with the principle of the responsibility to protect, the intervention duty of international and regional mechanisms such as the AU mandate to intervene is clearly stipulated. In accordance with the principle of subsidiarity, the Kampala Convention reinforces the power of the AU to intervene for protection purposes, in a manner compatible with the AU Constitutive Act and international law.
18 African Commission on Human and Peoples Rights (ACHPR), ‘Resolution on Strengthening the Responsibility to Protect in Africa’, (ACHPR, Brazzaville, Republic of Congo, 28 November 2007), ACHPR/Res.117 (XXXXII) 07.
19 The AU, its mandates and institutions are discussed in detail in Mehari Taddele Maru, The First Ten Years of the AU and Its Performance in Peace and Security, No. 218-May 2012, ISPI Policy Brief, available from http://www.ispionline.it/it/documents/PB_218_2012.pdf (accessed 26 April 2012).
20 Article 3(3), 3(11), Article 3 (4), Article 3(7), (8), (9) of the Addis Charter.
21
Articles 27, 37, 39, 40, 41, and 42 of the Addis Charter.
22 Article 31 and Article 43 of the Addis Charter.
23 Article 8 of the Addis Charter.
24 Joseph Choonara and Charlie Kimber, Arguments for Revolution: The Case for Workers Socialist Party, SWP, London, ISBN-13 No: 978192762.
25 Mehari Taddele Maru, Rethinking the North African Uprisings, The African Union Herald, Volume 2, September, 2011, and The African Union Normative Framework and the North African Revolutions, presentation to the Joint Plenary Session of the Peace and Security Council and Permanent Representatives Committee of the African Union, Addis Ababa, Ethiopia, September, 2011.
26 See Anyangwe, Carlson (2011) ‘Understanding the Phenomena of Unconstitutional Changes of Government in Africa’, pp. 26-48 in Gutto, Shadrack (ed,) Shared Values, Constitutionalism and Democracy in Africa, Fortune-Africa Publishing.
27 OAU, Lomé Declaration of July, 2000, on the framework for an OAU response to unconstitutional changes of government (AHG/Decl.5 (XXXVI), Lomé, Togo.
28 Article 31 of the 1969 Vienna Convention on the Law of Treaties, The 1969 Convention on the Laws of Treaties, available from www.unog.ch/archives/Vienna/vien-69.htm.
29 See Anyangwe, Carlson (2011) ‘Understanding the Phenomena of Unconstitutional Changes of Government in Africa’, Pp. 26-48 in Gutto, Shadrack (ed.) Shared Values, Constitutionalism and Democracy in Africa, Fortune-Africa Publishing.
30 See Article 34 and 35 of the Rules Of Procedure Of The Assembly Of The Union, Assembly Of The African Union, First Ordinary Session, 9-10 July 2002, Durban, South Africa, Assembly/AU/2(I)-A; See Also Decision Assembly/AU/Dec. 296 (XV) By The 15th Ordinary Session Of The Assembly In July 2010 In Kampala, Uganda; PRESS RELEASE N° 119/2010, On the Decision Of The Pre-Trial Chamber of the ICC Informing The Un Security Council and the Assembly of the State Parties to the Rome Statute about the Presence of President Omar Hassan Al-Bashir of The Sudan In The Territories of The Republic of Chad and The Republic of Kenya.Article 23 (2) and Article 9 of the AU Constitutive Act of the African Union, OAU, Decision on the Establishment of the African Union and the Pan-African Parliament, AHG/Dec.143(XXXVI); Article 7(e) and (f) of the PSC Protocol Relating to the Establishment of the Peace and Security Council of the African Union; OAU, Decision on the Establishment of the Peace and Security Council of the African Union, Ass/AU/Dec. 4 (I); Protocol on Amendments to the Constitutive Act of the African Union, available online at http://www.africa–union.org/root/au/Documents/Treaties/treaties.htm (accessed on 11 November 2009).
31 African Union, Assembly of Heads of State and Government, Decision on the resurgence of the scourge of coups d’Etat in Africa, Assembly/AU/Dec.220(XII), February 2009; African Union, Assembly of Heads of State and Government, Decision on the prevention of unconstitutional changes of government and strengthening the capacity of the African Union to manage such situations, Assembly/AU/Dec.253(XIII), 3 July 2009; African Union, Assembly of Heads of State and Government, Decision on the prevention of unconstitutional changes of government and strengthening the capacity of the African Union to manage such situations, Assembly/AU/Dec.269(XIV) Rev.1, 2 February 2010.
32 Issaka Souare (2009) The AU and the Challenges of Unconstitutional Changes of Government in Africa, Institute for Security Studies, ISS Paper 197.
33 Addis Charter.
34 Article 30, the Constitutive Act of the African Union, and Article 14 (2) and 14 (3) of the Addis Charter.
35 Article 25 of the Addis Charter. See also Article 23 of the Constitutive Act of the AU.
36 John Locke, Two Treatises of Government inThomas Hollis (ed.) (1764), the Online Library on Liberty.
37 Clapham, Andrew, Human Rights Obligations of Non-state Actors (Oxford, Oxford University Press, 2006), Pp. 89-95.
38 Despite its success to change the imperial government of Tsar Nicholas, the October Bolshevik insurrection fails short of a revolution as it took power from a coalition of a liberal government led by Kerensky.38 The seizure of power by the Military Revolutionary Committee that stormed the Winter Palace and toppled a provisional government would have constituted a coup d’état as per the Lomé Declaration if hypothetically we assume this happened now in Africa. Montefiore Simon (2003) Stalin, The Court of the Red Tsar, Orion Publishing Group, London, UK; and Montefiore Simon (2006) The Young Stalin, Orion Publishing Group, London UK.
39 Random House Webster’s Unabridged Dictionary (New York, USA Random House 2000).
40 See Jack Goldstone (1980) ‘Theories of Revolutions: The Third Generation’, World Politics, Volume 32; John Foran (1993) ‘Theories of Revolution Revisited: Toward a Fourth Generation’, Sociological Theory, Volume 11.
41 Montefiore Simon (2003)Stalin, The Court of the Red Tsar, Orion Publishing Group, London UK.
42 Paul, Hanson (2009) Contesting the French Revolution, Blackwell Publishing, ISBN NO 9781405160834; William Doyle (2001) the French Revolution: A very short introduction, Oxford University Press, ISBN 0192853961.
43 Foreign Affairs, Volume 90, No. 3, Pp 2-7.
44 The Great Socialist Libyan Arab Jamahiriya, Response to the Application of the African Commission on Human and Peoples’ Rights (Application No. 004/2011) and the Order for Provisional Measures by the African Court on Human and Peoples Rights, Submitted to the Court, Arusha, Tanzania, 06 June 2011.
45 The Great Socialist Libyan Arab Jamahiriya, Response to the Application of the African Commission on Human and Peoples’ Rights (Application No. 004/2011) and the Order for Provisional Measures by the African Court on Human and Peoples Rights, Submitted to the Court, Arusha, Tanzania, 06 June 2011.
46 “Human Rights Violations in Libya”, Amnesty International Report on Libya, http://action.amnesty.org.uk/ (accessed 16 February 2012).
47 AU Communique, PSC/AHG/COMM (CCXCI) 26 August 2011; Communique, Peace and Security Council, 260th Meeting, Addis Ababa, Ethiopia, 16 February 2011, PSC/PR/COMM.(CCLX); Communique, Peace and Security Council, 265th Meeting, Addis Ababa, 10 March 2011. PSC/PR/COMM.2(CCLXV).
48 Report of the Chairperson of the AU Commission on the Activities of the AU High Level Ad Hoc Committee on the Situation in Libya, PSC 275th Meeting, Addis Ababa, Ethiopia, 26 April 2011, PRC/PR/2(CCLXXV). See also The Report of the Chairperson of the Commission [EXT/ASSEMBLY/AU/2. (01.2011)].
49 Robin Beste, ‘Do to Libya what was done to Gaza and Iraq says head of UK army’, Stop the War Coalition, 16 May 2011.
50 Robin Beste, ‘Do to Libya what was done to Gaza and Iraq says head of UK army’, Stop the War Coalition, 16 May 2011.
51 Article 48-59, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I), 8 June 1977; and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 8 June 1977. Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No IV), (August 12, 1949), 6 UST 3516, TIAS No 3365, 75 UNTS 287. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, available at: http://www.unhcr.org/refworld/docid/3ae6b37f40.html (accessed 9 December 2009).
52 Conn Hallinan, “Targeting Infrastructure, War Crimes and the Bombing of Libya”, www.dispatchesfromtheedgeblog-wordpress.com (accessed 23 January 2012).
53 Yoweri Museveni, “Libya needs dialogue”, ANC Today, Vol. 11, No 12, http://www.anc.org.za/docs/anctoday/2011/at12.htm#art1 (accessed 17 February 2012).
54 Paragraph 5 of the Decision of the Assembly of the Union on the Situation in Libya, Assembly/AU/Draft/Dec.23(XVII).
55 PSC 261st Meeting, Communiqué on Situation in Libya, PSC/PR/COMM(CCLXI) held on 23 February 2011 and Statement from the Chairperson of the AU Commission, 23 February 2011.
56 African Union, Communique of the Meeting of The AU High‐Level Ad Hoc Committee on Libya, Nouakchott, Islamic Republic of Mauritania, 19 March 2011. Report of the Chairperson of the AU Commission on the Activities of the AU High Level Ad Hoc Committee on the Situation in Libya, PSC 275th Meeting, Addis Ababa, Ethiopia, 26 April 2011, PRC/PR/2(CCLXXV).
57 African Union, Communique of the Meeting of The AU High‐Level Ad Hoc Committee on Libya, Nouakchott, Islamic Republic of Mauritania, 19 March 2011. Report of the Chairperson of the AU Commission on the Activities of the AU High Level Ad Hoc Committee on the Situation in Libya, PSC 275th Meeting, Addis Ababa, Ethiopia, 26 April 2011, PRC/PR/2(CCLXXV). Paragraph 5 of the Decision of the Assembly of the Union on the Situation in Libya, Assembly/AU/Draft/Dec.23(XVII).
58 Extraordinary Session of the Assembly of the Union on the State of Peace and Security in Africa, Addis Ababa, Ethiopia 25 May 2011, Ext/Assembly/Au/Dec/ (01.2011) Decision of the Peaceful Resolution of The Libyan Crisis, Enhancing Africa’s Leadership, Promoting African Solutions, Ext/Assembly/Au/Dec/(01.2011).
59 Extraordinary Session of the Assembly of the Union on the State of Peace and Security in Africa, Addis Ababa, Ethiopia 25 May 2011, Ext/Assembly/Au/Dec/ (01.2011) Decision of the Peaceful Resolution of The Libyan Crisis, Enhancing Africa’s Leadership, Promoting African Solutions, Ext/Assembly/Au/Dec/(01.2011).
60 “Libya, Africa and the New World Order: An Open Letter, To the peoples of Africa and the World from Concerned Africans”, Pambazuka, http://pambazuka.org/en/category/features/75542 (accessed January 22, 2011).
61 Peter Fabricius, “Killing of a human ‘not to be celebrated’”, Daily Mail and Agencies, October 22, 2011, http://www.iol.co.za/news/africa/killing-a-human-not-to-be-celebrated-1.1162554 (accessed 17 February 2012).
62 Yoweri Museveni, “Libya needs dialogue”, ANC Today, Vol. 11, No 12, http://www.anc.org.za/docs/anctoday/2011/at12.htm#art1 (accessed 17 February 2012); Peter Fabricius, “Killing of a human ‘not to be celebrated’”, Daily Mail and Agencies, October 22, 2011, http://www.iol.co.za/news/africa/killing-a-human-not-to-be-celebrated-1.1162554 (accessed 17 February 2012).
63 Yoweri Museveni, “Libya needs dialogue”, ANC Today, Vol. 11, No 12, http://www.anc.org.za/docs/anctoday/2011/at12.htm#art1 (accessed 17 February 2012).
64 The African Union (AU) Roadmap for the Resolution of the Crisis in Libya, adopted by the PSC, at its 265th meeting held on 10 March 2011 [PSC/PR/COMM.2(CCLXV)].
65 The Great Socialist Libyan Arab Jamahiriya Response to the Application of the African Commission on Human and Peoples’ Rights (Application No. 004/2011) and the Order for Provisional Measures by the African Court on Human and Peoples Rights, Submitted to the Court, Arusha, Tanzania, 06 June 2011.
66 “Libya Offers Truce to UN as Revolt Enters 4th Month”, Agence France-Presse, May 15, 2011.
67 ibid.
68 Extraordinary Session of the Assembly of the Union on the State of Peace and Security in Africa, Addis Ababa, Ethiopia 25 May 2011, Ext/Assembly/Au/Dec/ (01.2011) Decision of the Peaceful Resolution of The Libyan Crisis, Enhancing Africa’s Leadership, Promoting African Solutions, Ext/Assembly/Au/Dec/(01.2011).
69 ibid.
70 Ibid.
71 Ibid.
72 Yoweri Museveni, “Libya needs dialogue”, ANC Today, Vol, 11, No 12, http://www.anc.org.za/docs/anctoday/2011/at12.htm#art1 (accessed 17 February 2012).
73 Adekeye Adebajo, “Gaddafi: the man who would be king of Africa”, The Guardian, Friday 26, 2011, http://www.guardian.co.uk/commentisfree/2011/aug/26/gaddafi-legacy-meddling-africa (accessed 17 January 2012).
74 The application was filed before the Court by the African Commission on Human and Peoples Rights (the Commission) on behalf of the International Federation of Human Rights (FIDH) and the Libyan League for Human Rights (LLHR).
75 The Great Socialist Libyan Arab Jamahiriya Response to the Application of the African Commission on Human and Peoples’ Rights (Application No. 004/2011) and the Order for Provisional Measures by the African Court on Human and Peoples Rights, Submitted to the Court, Arusha, Tanzania, 06 June 2011.
76 Ibid.
77 Ibid.
78 Ibid.
79 Ibid.
80 Ibid.
81 Paragraph 12 of the communiqué of the AUPSC, document PSC/MIN/COMM.2 (CCLXXV) adopted on 26 April 2011 at the 275th meeting PSC.
82 African Union Commission on International Law (AUCIL), (2011) Legal Opinion of The African Union Commission of International Law (AUCIL) on Certain Aspects of the Situation In Libya: Scope, Legal Implications and Obligations of Member States of The United Nations, including African Union States, Arising From United Nations Security Council Resolutions 1970 and 1973, The Second Extra-OrdinarySession, African Union Commission on International Law, May 12, 2011, Addis Ababa, Ethiopia, AUCIL/Legal/.
83 See Paragraph 45, African Union Commission on International Law (AUCIL), (2011) Legal Opinion of The African Union Commission of International Law (AUCIL) on Certain Aspects of the Situation In Libya: Scope, Legal Implications and Obligations of Member States of The United Nations, including African Union States, Arising From United Nations Security Council Resolutions 1970 and 1973, The Second Extra-Ordinary Session, African Union Commission on International Law, May 12, 2011, Addis Ababa, Ethiopia, AUCIL/Legal/.; Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn.
84 See Paragraph 46 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn.
85 See Paragraph 47 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn.
86 See Paragraph 47 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Add
is Ababa, May 12, 2011, 17H45mn.
87 See Paragraph 48 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn. 88 See Paragraph 48 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn.
88 See Paragraph 48 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn.
89 See Paragraph 50 Opinion adopted and approved in plenary meeting of the African Union Commission on International Law, Addis Ababa, May 12, 2011, 17H45mn.
90 See Article 3 and 4 of the Lomé Declaration.
91 For detail see the “African Mercenaries in Libya Nervously Await their fate”, The Daily Telegraph, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8349414/African-mercenaries-in-Libya-nervously-await-their-fate.html (accessed November 24, 2011); “African Mercenaries in Libya”, Hudson, http://www.hudson-ny.org/2008/african-mercenaries-libya-2i (accessed November 24, 2011); “Over 556 Polisario Mercenaries in the hands of NTC”, Morocco World News, http://moroccoworldnews.com/2011/08/libya-over-556-of-the-polisario-mercenaries-in-the-hands-of-ntc/ (accessed November 24, 2011).
92 The Response of the Great Socialist People’s Libyan Arab Jamahiriya to Charges of Human Rights Violations under the Human Rights Council Resolution A/HRC/5-15/L.1, 25 February 2011.
94 Article 17 of the Addis Charter.
95 Samuel Huntington (1991) The Third Wave: Democratization in the Late Twentieth Century, University of Oklahoma Press, Norman and London.
96 Article 44 (C) of the Addis Charter.
97 A list of countries which have signed, ratified/acceded to the different treaties of the AU, 2010, is available from http://www.au.int/en/treaties/status (accessed on 10 July 2011).
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Source document: Conference on the Implications of North African Uprisings for Sub Saharan Africa, Inter-Africa Group, August 2012, Universal Printing Press, Addis Ababa. [This is a revised version of a paper presented at the 284th AU Peace and Security Council and the Permanent Representatives Committee joint plenary session held in partnership with the Institute for Security Studies (ISS), July 11, 2011.]
The author, Mehari Taddele Maru, is Manager of the African Conflict Prevention and Risk Analaysis Programme and a former fellow of a prestigious programme at Harvard University. He holds a Doctorate Degree in Legal Sciences (DSL) from JL Giessen University, an MPA from Harvard University, an MSc from the University of Oxford and LLB from Addis Ababa University.
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