In a bid to forestall Unconstitutional Change of Government (UCG) in West Africa, the ECOWAS Community Court of Justice has taken some far-reaching measures to curb this unfortunate development in the sub-region.
The Court’s 2023 International Conference on Zero Tolerance for UCG in West Africa, which just ended in Banjul, the Gambian capital, adopted perhaps the most strident recommendations, including the criminalisation of UCG and the creation of a special task force to intervene in cases of UCG in Member States.
The four-day meeting also called for the strengthening of “the apolitical nature of the Armed Forces to guard against UCG,” and utilising “early warning tools and existing Protocols to recalibrate the regional peace and security architecture.”
These desperate measures are predicated on the three military coups that toppled democratic governments in Guinea in September 2021, Mali in 2021 and Burkina Faso in January 2022 plus an attempted coup in Guinea Bissau in February 2022.
According to the Conference Communiqué participants, mostly jurists, lawyers and academics, called for definition of the term “unconstitutional change” in the ECOWAS instruments and what constitutes a violation of convergence principles clearly spelt out.
It also called on “Member States to stem tenure elongation, eliminate all pseudo-democratic laws, and criminalise UCG at the national level with national courts having jurisdiction.”
It recommended effective sanctions against perpetrators of UCG, including coup plotters and their supporters, with the amendment of the ECOWAS Supplementary Protocol on Democracy and Governance to “ensure that sanctions do not affect the fundamental human rights of ordinary citizens.”
The Communiqué urged a “review of the efficiency of sanctions” and creation of an implementation guideline, while calling for respect of term limits and an end to constitutional manipulations by incumbents to extend their mandates.
It further called for a stop to tenure extension by political leaders, while the Protocol of the Community Court of Justice should be modified to allow for judicial intervention in election matters.
It also recommended the strengthening of the means of settling electoral disputes at the national level through the enactment of laws and setting up of mechanisms for independent adjudication of electoral disputes.
The Conference called for an increase in the number of judges of the ECOWAS Court of Justice in line with International best practices and the amendment of the “Protocols on the Court to enable access to individual citizens in respect of violations of community laws/obligations including activating sanctions proceedings against member States.”
ECOWAS should “muster the political will to hold member States accountable to their treaty obligations,” the Communiqué said.
It further called for the guarantee of the independence of the judiciary and the strengthening of the capacity of courts to render justice and also recommended that the root causes of political conflicts should be addressed to ensure political stability, peace, and progress, as well as cultivation and strengthening of a democratic culture for economic growth.
ECOWAS should “combat corruption in public life as it undermines public confidence in state institutions and creates conditions for instability,” the Communiqué noted.
It also called for measures against misinformation and disinformation, particularly the negative impact of social media and the involvement of the youth.
ECOWAS should ensure strict adherence by member States to the provisions of the African Charter on Human and Peoples’ Rights, and “effective implementation of regional Treaty and Protocols to make compliance thereof a condition for retaining the membership of the sub-regional bloc,” the Communique urged.
Furthermore, ECOWAS should strengthen the competences and enforcement capacities of the ECOWAS Court of Justice as well as focus on the fight against poverty and the promotion of social dialogue.
It urged that National Electoral Institutions should be supported with structured training of stakeholders such as political parties, Civil Society, academia, and the media, on community principles and values.
According to the Communique, ECOWAS should “utilise proactive preventive diplomacy, mediation and results oriented conflict management strategies driven by consistency, neutrality and inclusivity to deal with management and resolution of conflict.”
It called for the creation of a functional mediation, conciliation, and arbitration committee for settling disputes in ECOWAS countries, and with a standard Community legal framework for member States to fulfil their treaty obligations.
ECOWAS member States should ensure strict adherence to the provisions of the African Charter on Human and Peoples’ Rights, the Communique recommended, and called “a deliberate effort to discourage the teeming youths from being dangerously radicalised by Terrorists, Separatist Militias, Bandits, Kidnappers, and Ethno-religious fundamentalists within the West African sub-region.”
In his remarks at the closing ceremony, the country’s Minister of Trade, Industry and Regional Integration, Mr Baboucar Joof described the experience of the conference as a ‘first class law school which provided an opportunity to listen to great minds from the region and commended the Court for hosting the conference in the country.”
He expressed optimism that after a stimulating conference, the outcome will contribute to the promotion of peace and stability, which are the preconditions for regional development behind the ECOWAS integration objective.
Similarly, the Attorney General and Minister of Justice, Mr. Dawda Jallow described the conference as “humbling,” with the expectation that the outcome will ensure that “West Africa is firmly rooted in good democracy and good governance.”
He said that through the conference, the region has demonstrated the power of collaboration which is a critical ingredient in the promotion of a strong democratic couture built on global best practices.
In his closing remarks, the President of the Court, Justice Edward Amoako Asante said the conference was characterised by “excellent presentations by our very knowledgeable resource persons, robust contributions by our distinguished participants and the cross fertilization of ideas resulting in a fruitful conference.”
Justice Asante described the timing of the conference as apt, coinciding with a period of the resurgence of military governments in three Member States, assuring that ‘we would therefore continue to sound the alarm about the dangers of unconstitutional change of government.
Consequently, he commended the Heads of State and Government of the Community for its efforts to restore constitutional order in the three Member States, adding: “we recognise the need to strengthen our region, democratic process and culture and reject in its entirety, all forms of military intervention in governance as well as undemocratic ascension to power and tenure elongation.
“Elections must be free, fair and transparent in order to avoid unnecessary conflicts and political instability in our sub-region as we are convinced that we cannot achieve our economic integration agenda without sustainable participatory democracy, rule of law and respect for human rights.
The President assured of the willingness of the Court to “deepen our collaboration with the national courts and we would continue to explore ways to deepen our fraternal relations with national courts,” reiterating that “the Court is not in competition with national courts, rather we are partners in progress.”
In addition, he said the jurisprudence of the ECOWAS Court recognises that it is not an appellate court over the national courts of Member States, which is not only well but declared by the Court in the Community legal order, which also emphasizes the fact that this Court relies on the national courts of Member States for the enforcement of its judgements.
While it is apt to take drastic measures to curb coups in the region, the complexities and internal contradictions that make coups possible remain strong in West Africa. The challenge sometimes is that the leaders will embark on unconstitutional means to remain in office by manipulating the constitution.
A typical example is the case of Guinea, where the deposed president, Alpha Conde, changed the constitution to extend his term of office and stifled opposition to his ambition by shooting down protesters. Such dictatorial tendencies are an incentive to coups albeit inexcusable.
While the Court called for an end to tenure elongation in the region, it is really a challenge implementing this measure outside the usual sanctions and suspensions which in most cases do not affect the leaders who perpetrate undemocratic actions.
Therefore, West Africa must find a way of building and strengthening constitutional democratic norms and above all build thriving economies that will eradicate poverty.
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