Lessons Learning Session on the Implementation of the AU Transitional Justice Policy: Impact on National Resilience and Democratisation
Lessons Learning Session on the Implementation of the AU Transitional Justice Policy: Impact on National Resilience and Democratisation
Date | 22 August 2022
Tomorrow (22 August), the African Union (AU) Peace and Security Council (PSC) will convene its 1102nd session on ‘Lessons Learning session on the implementation of the AU Transitional Justice Policy: Impact on National Resilience and Democratization’.
Following opening remarks of the Permanent Representative of The Gambia to the AU and Chairperson of the PSC for the month, Jainaba Jagne, AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye is expected to make a statement. For the experience sharing, presentations are expected from the representatives of The Gambia, Libya, South Africa, South Sudan, Sierra Leone, and Rwanda.
Tomorrow’s session will be the first time that Council discusses the AU Transitional Justice Policy (AUTJP) since its adoption in February 2019. However, Council has dedicated several sessions on the theme of ‘peace, justice and reconciliation’ since at least 2013 which in fact contributed great deal in articulating the African conception of transitional justice (TJ) and clarifying the policy options for Member States to undertake TJ process. For instance, during its 383rd meeting held at the ministerial level in Algiers in June 2013, Council highlighted around six elements that could serve as a basis for the conduct of national reconciliation processes in Africa, including the use of traditional mechanisms of conflict resolution and reconciliation and the imperative of a judicious combination of measures relating to truth telling, repentance, justice, healing, forgiveness, solidarity, reparations, reintegration and socio-economic development. These elements are indeed incorporated in the AUTJP, which reflects the contributions of the Council in shaping the Policy. At its 672nd session convened in March 2016, Council recognized that the ‘issue of achieving an equilibrium between reconciliation and justice is work in progress in the continent and that there is no universal approach or model in applying these two concepts on the ground.’ Council also underscored the importance of balancing retributive, reparative, and distributive types of justice, further highlighting the intricacies in the idea of sequencing of peace, reconciliation, and justice in Africa. It is also to be recalled that during its 525th session in July 2015, Council agreed to make the theme ‘Peace, Reconciliation and Justice’ a standing item while the 899th session which was held in December 2019 at a ministerial level decided to dedicate annual session aimed at experience sharing and lessons learning on ‘national reconciliation, restoration of peace and rebuilding of cohesion in Africa’.
As indicated in the Concept note prepared for the session, tomorrow’s session is aimed at sharing the experience on the establishment and implementation of the AUTJP at various levels of governance in Africa, as well as sharing of experiences by Member States who have implemented transitional justice processes. Such experience sharing is expected to serve as an inspiration for other Member States who are dealing with violent past. The session also presents a platform to familiarize the AUTJP and its salient features.
The AUTJP is the culmination of a nearly decade-long legislative process, having its root in the 2011 report of the Panel of the Wise titled ‘Non-Impunity, Truth, Justice and Reconciliation’. Building on the June 2006 AU Policy on Post Conflict Reconstruction and Development (PCRD) and drawing from the rich experiences of African countries in transitional justice, the Policy provides practical guide to Member States with violent and/or authoritarian legacies to navigate through difficult transition towards sustainable peace, justice, and democratic order. While the Policy takes significant inspiration from international norms and standards on TJ, it offers an alternative perspective to the dominant conception of TJ that is shaped by its own history, political and socio-economic realities. The Policy defines TJ to cover not only the formal mechanisms but also non-formal or traditional justice approaches that recognize the importance of symbolic and dialogic justice and traditional or religious ritual processes, as well as culturally and socially relevant forms of reparations. While the mainstream model prioritizes retributive approach focusing on criminal justice and accountability, the AUTJP tries to balance the demand for retributive criminal justice and the need for society to achieve reconciliation and rapid transition to a shared democratic future. The other saliant feature of the Policy is the emphasis given to national ownership. As highlighted in para. 32 of the Policy, national ownership entails two substantive components. The first is ‘process leadership and decision making’ whereby national stakeholders involving all sides most importantly victims drive the design and implementation of TJ. The second is the ‘primacy of national resources and capacities’ which emphasizes the need to adapt and exhaust all suitable formal and traditional mechanisms that are available at the local level before resorting to foreign sources and capacities.
The AU is one of the actors identified in the AUTJP bestowed with the role of providing the strategic political leadership at the continental level for the successful implementation of the Policy. It is in this framework that the AU Commission developed a Roadmap for the implementation of the Policy in 2020, which serves as the vehicle for coordinating AUC’s activities regarding the implementation of the Policy for the period 2020-2024. In tomorrow’s briefing, the Commission may highlight some of its activities towards the implementation of the AUTJP. The Commission is likely to mention range of technical assistances provided to Member States including the provision of trainings on the application of the Policy (The Gambia, Zimbabwe, and South Sudan), support to the development of national transitional justice strategy and policy (DRC and South Sudan), support to the development and implementation of TJ programmes (Libya), and translation of the AUTJP into local languages (such as Ethiopia).
The other aspect of the session is expected to be experience sharing where invited Member States are expected to shed light on their experiences, best practices, and challenges, as well as how they addressed peace versus justice dilemma.
In the case of The Gambia, one of the issues likely to be raised is how the proceedings of the transitional justice process enormously uplifted the political consciousness of the public and provided platform not only to expose the depth of the violations perpetrated by the previous regime but also for public hearing and acknowledgement of the brutalities victims and their families and communities endured. In his recent piece published on 8 June, the former Executive Secretary of The Gambia’s Truth, Reconciliation and Reparation Commission (TRRC), Baba Galleh Jallow, stated that in a radical departure from previous experiences of truth commissions, ‘the Gambian TRRC created an institutional structure, operational method, and strategic communication processes built on the twin principles of inclusivity and transparency that allowed it to be visibly transformative well before the completion of its work and submission of its final report and recommendations to the Government.’ This is on account of the strong interest that the works of the Commission, particularly its public hearings, evoked among the public, which was previously experienced profoundly during South Africa’s Truth and Reconciliation Commission proceedings as well. In balancing between justice and reconciliation, the Commission combined different modalities including prosecution, amnesty, and reparation. TRRC delivered a final report documenting violations and abuses of human rights from 1994 to 2017 and the government also issued a white paper in May containing its response to the recommendations of the report. While these are steps in the right direction, the success story of The Gambia’s TJ process would remain incomplete without translating those recommendations into action.
Rwanda’s experience reveals the use of combination of customary African values with international and domestic criminal justice to deal with the crime of genocide. International, national, and traditional criminal courts operated together but the traditional Gacaca community justice process remain its key feature. The Gacaca court is lauded for its role in filling in for the formal court system that were decimated during the genocide. It was also instrumental in facilitating truth telling, promote reconciliation, and end impunity. However, forgetting that the Gacaca courts were dealing with extraordinary conditions of mass atrocities that also destroyed formal legal institutions and implicated extraordinarily large number of peoples, some have wrongly sought to hold the processes of the Gacaca courts to standards that are crafted and envisaged for ordinary times.
The TJ process in Sierra Leone was marked by the simultaneous operation of a Truth and Reconciliation Commission and a special hybrid court. It allowed the country to pursue both justice and reconciliation, and it is particularly raised in the context of its special attention to the subject of sexual abuses and to the experiences of children within the armed conflict. The simultaneous existence of the truth commission and a hybrid special court however brought about confusion over mandates. The two processes were also constrained by the focus on national level actors and the vertical state-society relations, thereby leaving enormous vacuum for reconciliation & justice at the local level, which the traditional processes used at the local levels tried to fill in, enabling child soldier to be reintegrated back to the community and broken social relationships to start to heal.
In the world of transitional justice, the experience that received world-wide recognition for making truth and reconciliation commissions globally popular is South Africa. The TJ process in South Africa emphasized truth and reconciliation over criminal prosecution. The process has delivered political transformation and democracy to the country. There are today calls for consolidation of the gains achieved through the TRC process by implementation of the recommendations in the TRC Report, notably those relating to reparations, and by instituting process for addressing the socio-economic dimensions of South Africa’s past that continues to imped the structural transformation of the society and the dismantling of pervasive inequalities affecting the historically oppressed majority of South Africans.
In Libya and South Sudan, the TJ process is not only in its nascent stage but also facing enormous challenge. In case of South Sudan, the establishment of the Commission of for Truth, Reconciliation and Healing as well as Reparation Commission is a welcome development. For these processes to deliver the justice expectations of victims and survivors of the brutal civil war, it is imperative that they are organized and carried out in full compliance with the standards set in the AUTJP including the inclusive and transparent process of constituting the members of these bodies and ensuring their full independence from political interference and full participation of victims and survivors. Additionally, attention should be paid on how to take advantage of the unique legal and policy resources that the AUTJP offers for operationalization of the hybrid court in a way that addresses the challenge to balance criminal accountability and reconciliation. In Libya, the process has been stalled as the country continues to reel under political and security crisis. However, the representative may shed light on recent activities including the support provided by AU Commission towards the development of a legitimate TJ programme and National Reconciliation Commission.
Issues of political buy-in from Member States and financial limitations are expected to be highlighted as challenge to the implementation of TJ in the continent. As rightly captured in the AUTJP, it is the primary responsibility of Member States to pursue TJ process and its success ultimately depends on the political commitment, leadership, and capacity of the concerned country. Financial constraint is another factor likely to compromise the level and quality of support that AU could provide to Member States. It was also for lack of funding that the AU ended its Technical Support Team in The Gambia (AUTSTG), one of its success stories in supporting countries in political transition. One important avenue that the Council may consider addressing this challenge is the utilization of the Peace Fund. It is worth recalling that transitional justice mechanisms, truth and reconciliation processes are identified as one of the strategic priorities under Window 2 for the utilization of the Peace Fund.
The expected outcome of tomorrow’s session is a communique. Among others, Council may recognize the development and adoption of the AUTJP as an important milestone in having a comprehensive policy framework that guides not only Member States in their TJ undertakings but also the AU, RECs/RMs, and non-state actors in their effort to support such undertakings. While acknowledging that there is no ‘one-size-fits-all’ approach to TJ, it may reiterate some of the key elements of the TJ Policy that should serve as a basis for the implementation of TJ. In this respect, Council may stress the imperative of national ownership of the process, the use of traditional mechanisms, and striking a balance between reconciliation and justice, as well as between retributive, reparative, and distributive types of justice. Council may highlight the importance of popularizing and sensitizing the Policy to ensure greater political buy-in from Member States given that the success of any TJ initiatives as well as the effective implementation of the Policy largely depends on the political will and good faith of the political leadership. It may also commend the AU Commission for the steps it has put in place to promote the implementation of the AUTJP in countries in transition and the need for ensuring that relevant AU organs, such as the African Commission on Human and Peoples’ Rights, which contributed to the drafting of the AUTJP and to the TRRC, to contribute to and use their mandate for promoting the implementation of the AUTJP.
Council is expected to re-emphasize the imperative of sharing experiences and lessons learned in promoting TJ and assisting countries that confronted violent past to address their challenges of reconciliation, accountability, social cohesion, and nation-building. In this regard, it may stress on the need to follow up its decisions, at its 899th session, to dedicate annual session on TJ. Regarding the financial constraint, Council may allude to the utilization of the Peace Fund for AU’s TJ activities as the Union moves towards the operationalization and pilot utilization of the Peace Fund. Council may call for enhanced cooperation and coordination between AU and RECs/RMs, as well as international partners in supporting Member States in their TJ initiatives. Council may commend the countries that shared their experiences with initiating and implementing TJ processes. The Council may note that transitional justice is not a one time process but a continuous one that aims at addressing ever more forcefully and increasingly legacies of past wrongs and violations and the inequities that they have created in affected societies. It may call on the states to implement the recommendations of truth commissions and continue the work for achieving increased levels of reconciliation and healing as well as irreversible cohesion through implementing inclusive development policies and deepening democratic and accountable system of political governance.
HIGHLIGHTS FROM THE 41ST ORDINARY SESSION OF THE EXECUTIVE COUNCIL AND THE 4TH AU MID-YEAR COORDINATION MEETING IN LUSAKA
HIGHLIGHTS FROM THE 41ST ORDINARY SESSION OF THE EXECUTIVE COUNCIL AND THE 4TH AU MID-YEAR COORDINATION MEETING IN LUSAKA
Date | August 2022
INTRODUCTION
The 41st Ordinary Session of the Executive Council and the 4th AU Mid-year coordination meeting were held on 14-15 July and 17 July respectively in Lusaka, Zambia. The meetings were preceded by the 44th Ordinary of the Permanent Representative Committee (PRC) held from 20 June to 8 July in Addis Ababa under the chairship of Senegal.
HIGHLIGHTS FROM THE 41ST ORDINARY SESSION OF THE EXECUTIVE COUNCIL AND THE 4TH AU MID-YEAR COORDINATION MEETING IN LUSAKA
HIGHLIGHTS FROM THE 41ST ORDINARY SESSION OF THE EXECUTIVE COUNCIL AND THE 4TH AU MID-YEAR COORDINATION MEETING IN LUSAKA
Date | August 2022
INTRODUCTION
The 41st Ordinary Session of the Executive Council and the 4th AU Mid-year coordination meeting were held on 14-15 July and 17 July respectively in Lusaka, Zambia. The meetings were preceded by the 44th Ordinary of the Permanent Representative Committee (PRC) held from 20 June to 8 July in Addis Ababa under the chairship of Senegal.
Open Session on Children Affected by Armed Conflicts
Open Session on Children Affected by Armed Conflicts
Date | 18 August 2022
Tomorrow (18 August), the African Union (AU) Peace and Security Council (PSC) is expected to convene its 1101st session which will be an open session on children affected by armed conflicts (CAAC).
Following opening remarks of the Permanent Representative of The Gambia to the AU and Chairperson of the PSC for the month, Jainaba Jagne, AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye is expected to deliver a statement. Robert Nanima, African Committee of Experts on the Rights and Welfare of the Child (ACERWC) Special Rapporteur on CAAC is also expected to make a statement at the session. Presentations and statements are also expected to be delivered by representatives of the respective Regional Economic Communities and Regional Mechanisms (RECs/RMs), the United Nations (UN) Office to the African Union (UNOAU), the European Union (EU) and Save the Children International to the AU and Pan Africa Office. Four children affected by armed conflicts are also expected to share their experiences at the session.
The last time Council discussed CAAC was at its 1070th session convened on 29 March 2022. At that meeting, Council considered two draft policies essential for the protection of children in situation of armed conflicts – Policy on Child Protection in AU Peace Support Operations (AU PSOs) and Policy on Mainstreaming Child Protection in the African Peace and Security Architecture (APSA) – and requested that they be considered by the Specialized Technical Committee for Defence, Safety and Security (STCDSS). At its 14th Ordinary Session convened on 12 May 2022, the STCDSS considered and adopted both policies. Further to welcoming the adoption of the policies, tomorrow’s session may serve as an opportunity for Council and invited participants to reflect on the necessary steps that will be required for their implementation.
Tomorrow’s session is expected to deliberate on the general situation of children in armed conflicts in Africa, highlighting some of the more concerning country/region situations and address some of latest issues arising in connection with protection of children in conflict and crises settings in the continent. In the various regions of Africa, the situation of children caught in conflict and crises situations continues to deteriorate, in some cases reaching alarming levels.
According to the United Nations (UN) Children’s Fund (UNICEF), West and Central Africa continues to account for a quarter of the global violations against children in situations of armed conflicts. Since 2005, more than 67,000 verified grave violations against children have been recorded in these regions. This accounts for the six incidents which form grave violations – killing and maiming, child recruitment and use, abductions, rape and other forms of sexual violence, attacks on schools and hospitals, and denial of humanitarian access. In the Sahel region in particular, the high rate of displacement resulting from conflict and insecurity has put children at the risk of overlapping grave violations. Reportedly, in Burkina Faso, Mali and Niger, the number of verified grave violations has shown a 40% increase as compared to the data recorded for the last quarter of 2021.
The Democratic Republic of Congo (DRC) in Central Africa is among the countries globally that have recorded highest number of grave violations committed against children in the context of armed conflicts. According to the UN, 3,546 violations against 2,979 children were verified in the DRC in the course of 2021. Children are also affected by conflicts in Cameroon and the Central African Republic (CAR). One of the worst manifestation of the conflict in Cameroon involves the direct targeting of children and schools, thereby leading to the exclusion of hundreds of thousands of children from school as the UN reported. In the North-West and South-West regions of Cameroon, over 700,000 children are estimated to be deprived of education due to attacks on schools. In CAR, about 944,000 children were projected to be in need of psychosocial support due to the impacts of conflict and sexual violence.
In the East and Horn region, Somalia, South Sudan and Sudan are among the countries with highest rates of grave violations recorded during 2021. While no statistics are available, children are among those most affected by the conflict in northern Ethiopia. In South Sudan, the UN verified 196 grave violations against 183 children, including the recruitment and use of 129 children. In Sudan, 202 grave violations were verified against 195 children, including killing of 54 and 112 cases of maiming against 166 children. Somalia has recorded the highest rate of grave violations against children in situations of armed conflicts in the region with 3,340 grave violations against 2,687 children as verified by the UN. Out of these, 1030 were cases of children abducted by Al-Shabaab while 307 were cases of sexual violence against children, 306 of which were perpetrated against girls.
The situation of children affected by conflicts is compounded by food insecurity and challenges to humanitarian access. Such is the case, for example, in the Horn of Africa, which is also experiencing severe drought. According to data availed by UNICEF in early June 2022, over 1.7 million children in Ethiopia, Kenya and Somalia are estimated to be facing severe acute malnutrition out of which 386,000 reside in Somalia.
In Southern Africa, conflict and terrorist violence in the Cabo Delgado province of Mozambique continues to fuel the displacement crisis in the region. As of September 2021, over 800,000 people were estimated by the UN High Commissioner for Refugees (UNHCR) to have been internally displaced and out of these, 48% were reported to be children. Since the outbreak of insurgency in northern Mozambique in 2017, about 370,000 children have reportedly been displaced. Recent reports by Save the Children also indicate that renewed violence in the northern region of Mozambique has displaced nearly 30,000 children. In most cases, children in the region are forced to face secondary and tertiary displacement and are growingly running out of safe shelters due to the spread in attacks. Not only does this entail significant immediate challenges, its long term psychological impacts on children will likely be grave.
Although relatively better, Libya from the North African region experiences its share of challenges in relation to protection of children affected by conflict and crisis situations. The latest UN report indicates that 63 grave violations against 52 children were verified in the country throughout 2021. In the midst of continued concerns over protection of human rights of detained migrants, including children, 125 additional cases of detention of children were reported during that period.
In addition to reflecting on these concerning trends faced in the various regions of the continent, Council may also wish to draw attention to the issue of statelessness faced among displaced children or children born in displacement, an issue which has gained relatively little attention in the past. Displaced children or children born to displaced parents are among the principal victims of the consequences of armed conflicts, natural disasters and other crises including political instabilities. Although the issue of statelessness of such children does not become apparent until they are confronted with situations that require official documentations and national identification, studies have demonstrated the prevalence of the issue across Africa.
A recent study by the UNHCR indicates for instance that while providing exact or estimated statistics on stateless children is not possible – owing mainly to poor birth registration and documentation practices of member States – the risk of statelessness among children in the Horn of Africa has currently become a highly concerning issue. The report specifically highlights that ‘children in Somalia, Djibouti, Eritrea and Ethiopia, including those of mixed parentage, with parents who have been displaced or are members of cross-border communities, and those who have been separated from their parents, are among persons most at risk of statelessness in the Horn of Africa’. It is known that the immediate causes for statelessness are gaps in nationality laws which provide safeguards against statelessness in line with international law. For example, Art.6 of the African Charter on the Rights and Welfare of the Child (ACRWC) provides the right of every child to acquire nationality. However, children born in displacement (from refugee, migrant or asylum-seeker parents) are often denied this right by host countries.
The expected outcome of tomorrow’s session is a Communiqué. Council is expected to welcome the adoption of the Policy on Child Protection AU PSOs and the Policy on Mainstreaming Child Protection in APSA. It may further highlight the importance of a well-defined strategy to help guide the implementation of these policies and call for the development of such framework. Taking note of the high prevalence of grave violations against children in conflict settings in the continent, Council may urge all parties to conflicts to abide by the fundamental principles of international humanitarian law and international human rights law and to exercise utmost restraint in the conduct of hostilities as to avoid victimisation of children. It may further appeal to all relevant stakeholders including regional and international partners to strengthen their support and assistance for children affected by conflicts in Africa. Having regard to the growing concern of child statelessness, Council may also call on member States to align their laws regulating nationality with relevant regional and international standards on the prevention of statelessness. Having regard to the absence of data on statelessness among children caught in crisis situations, Council may also call on relevant AU organs such as the ACERWC to conduct a mapping study in that area. In the light of the worrying statistics of children affected by conflicts, the PSC may call on the AU to use the policy on mainstreaming child protection in APSA for preventive diplomacy, mediation, peace-making and peace processes to ensure that measures are put in place for ensuring protection of children in the concerned conflict or crisis settings where these tools are deployed.
Sanctions and Enforcement Capacities: Deterrence Against UCG
Sanctions and Enforcement Capacities: Deterrence Against UCG
Date | 15 August 2022
Tomorrow (15 August), the African Union (AU) Peace and Security Council (PSC) is set to convene its 1100th session to discuss “sanctions and enforcement capacities: deterrence against unconstitutional changes of government (UCG)”.
Following opening remarks of the Permanent Representative of The Gambia to the AU and Chairperson of the PSC for the month, Jainaba Jagne, AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye is expected to deliver a statement. Representatives of the respective Regional Economic Communities/Regional Mechanisms (RECs/RMs) are also expected to deliver statements while presentations will be made by representatives of the United Nations (UN) and the Institute of Security Studies (ISS).
The recent resurgence in UCG in the continent, noted particularly over the course of 2021, has brought the issue to the fore of policy discourse continentally in the AU and various state and non-state actors and regionally at RECs/RMs. Regionally, the policy debate has been dominant in West Africa, within the Economic Community of West African States (ECOWAS). As highlighted in Amani Africa’s Policy Brief, the fact that sanctions imposed on Mali did not deter subsequent coups in four other cases has brought into sharp focus the efficacy of the responses of the AU and RECs/RMs.
While some of the recent conversations on UCG in the continent have focused on the critical importance of comprehensively addressing governance deficits, human rights violations and other governance related underlying root causes which create the fertile ground for coups, the debate within the AU and among the wider policy stakeholders illustrated that not any less important is the issue of ensuring enforceability and impactfulness of sanctions imposed once UCG takes place in a given member State. Beyond the emergence of divergent perspectives in the PSC about whether and when to apply the enforcement measures of suspension and sanctions, the importance of this issue also came out during the March 2022 Accra Forum that the PSC convened in Ghana. In addition to reflecting on the challenges faced so far in applying the enforcement measures (of suspension from AU and/or regional bodies), tomorrow’s session may also serve as an opportunity for building on and articulating modalities for effective operationalization of commitments made under the Accra Declaration with respect to enforcing UCG sanctions.
When addressing the issue of enforceability of sanctions against UCG, one of the first considerations that will require close examination is the existence of a comprehensive framework which establishes clear designation criteria, thresholds and categories for imposition of sanctions as well as conditions that need to be met for lifting them. It is true that the AU Constitutive Act, the Lome Declaration of 2000, the African Charter on Democracy, Elections and Governance (ACDEG) of 2007, the PSC Protocol and the practice of the PSC in enforcing the AU norms on UCG show that there is adequate clarity about the automaticity of suspension from the AU in cases of UCG, most notably coups. The PSC for example invoked Article 7(1)(g) to suspend AU member states for 19 times. Only in two instance that the PSC withheld the automatic application of suspension (November 2014 on Burkina Faso & April 2019 on Sudan), underscoring that automatic suspension from participating in the AU upon the occurrence of UCG in a member state is the norm.
It is worth noting that this clarity and largely consistent application has significantly contributed to the decline of coups until their unprecedented upsurge in 2021. As established in our policy brief of May 2022 published ahead of the Malabo Summit, ‘until 2021, the trends in the occurrence of coups in Africa is largely characterized by decline, despite its sporadic occurrence in a range of one to two coups per year (in the years when it occurred).’ Prior to 2021 the maximum that Africa experienced a coup since 2000 was in 2003. Since then, there were a few years (2005, 2008 and 2012) when a maximum of two coups occurred, with several years passing without coups.
However, with the unprecedented number of coups in 2021/22, signs of doubt on upholding this established norm and practice on applying suspension has been observed on the part of policy makers (including some PSC members). It is however critical to resist any temptation to blame the lack of effectiveness during 2021/22 on the norm that may lead to the revision or the scraping of the normative automaticity of suspension and the dominant practice of applying it (throwing the baby with the bath water). Instead, attention should focus on whether there is weakening of the strong political commitment & wider public support for the AU norm of zero tolerance against coups. Indeed, although the lack of regard by coup perpetrators is mostly a product of national political power dynamics, this weakening of both political commitment in AU & wider public support for zero tolerance would not be without its contribution. Tomorrow’s session affords the PSC an opportunity for finding ways of strengthening strong political commitment within the AU (both on the part of member states and AU Commission) for upholding the principle of zero tolerance for coups irrespective of their origins.
Equally significant in restoring confidence in the principle of zero tolerance to coups and hence the automatic suspension of States upon occurrence of coups is to ensure that the enforcement of suspension for coups is backed by strong consensus within the AU and at the level of RECs/RMs with formidable backing from AU’s partners. The weaker the consensus among AU member states and between the AU and RECs and the divided the backing of the UN, EU and major powers, the less effective will suspension by AU & RECs/RMs against coups would be.
When it comes to enforcement measures other than suspension (namely diplomatic, territorial and economic sanctions), the major gap (other than the fact that the AU lacks the economic tools (such as those at the disposal of the EU) or (economic & military tools, at the disposal of the UN Security Council) both at the AU and RECs/RMs levels is the absence of a common framework on what kind of sanctions to be applied, under what circumstances, the mechanism for monitoring and the criteria for the lifting of such sanctions. On account of this, participants of the Accra Forum have undertaken to ensure the development of a ‘comprehensive framework establishing different categories of sanctions that may be gradually applied, upon the approval of the relevant AU policy organs, in accordance with the gravity of the violation or threat to the constitutional order.’ It is critical that the PSC uses tomorrow’s session for initiating a process for developing a framework for sanctions, which could also potentially serve as basis for reforming the UN’s sanctions regime, which has increasingly become under scrutiny.
Another important point that must form part of the discourse on imposition and enforcement of sanctions is ensuring protection of the rights and welfare of ordinary citizens of the concerned member State. Imposition of blanket economic and financial sanctions on member States or the closure of borders have had disastrous impacts on populations as multiple examples across the world stand to demonstrate. Mali’s recent experience has particularly invoked much concern and is among the factors that have informed the need to convene tomorrow’s session on sanctions. It is to be recalled that following the inability of Mali’s transition authorities to conduct elections by the timeline stipulated by the Economic Community of West African States (ECOWAS), the regional bloc imposed sanctions against Mali at its Extraordinary Summit of 09 January 2022. At its 1057th session, the PSC also endorsed ECOWAS’s decision, albeit reluctantly and with a proviso on the need for ensuring that it does not affect the general public. The sanctions which carried measures such as closure of borders, suspension of economic and financial transactions and suspension of financial assistance, affected the country’s economy which has already been battered by insecurity and impacts of the COVID-19 pandemic. As a result, the sanctions were felt more among ordinary citizens. The resultant public anger against the sanctions and ECOWAS contributed to the weakening of the efficacy of the sanctions.
One key lesson to draw from Mali’s experience is therefore the importance of making sanctions as specifically targeted as possible. In order to make sanctions impactful and avert negative implications on wider populations, they need to as much as possible be targeted against specific individuals and entities. So far, the PSC has dealt with UCG in various member States 23 times. Out of these, the Council imposed targeted sanctions only four times – at its 168th, 204th, 363rd and 551st sessions – while it merely resorted to suspension in all other cases. Equally important is the need for building into sanctions, well-crafted carve-out clauses that ensure that lifesaving activities such as provision of humanitarian assistance or access to life supporting supplies are not impeded.
Another critical area that has contributed to the lack of effectiveness of enforcement measures against UCG is the lack of consistent application. At one level this has to do with inconsistency in how the AU applied, for example, suspension. The seizure of power by the military in Chad by suspending the constitutional process is case in point. The failure of the PSC to apply the same measures it applied on Mali has led to legitimate charges of selective application and double standard of the norms. At another level, there is also the fact that the AU is more disposed to take measures against coups than other forms of unconstitutional changes of government outlined in the Lome Declaration of 2000 & ACDEG. Accordingly, it is of utmost importance that the AU develops a predictable process for taking measures against extension of term limits within the framework of Article 23(5) of ACDEG.
The role of various complementary measures is another essential consideration that should be taken into account while imposing sanctions. If the ultimate objective of restoring constitutional order is to be realised, enforcement measures (whether suspension and/or sanctions) need to be combined with parallel, complementary measures such as diplomatic engagement with the concerned member State and support to national dialogue. The need for diplomatic engagements with transition authorities should not however be regarded as a factor for dispensing with more serious measures such as suspensions. In this regard, the Lome Declaration of 2000 clearly requires that such diplomatic engagements are undertaken parallel to the suspension of the country concerned following UCG.
The outcome of the session is expected to be a Communiqué. Council may reaffirm the conclusions of the Accra Forum on strengthening the efficacy of enforcement measures and request that the measures outlined in this regard in the Accra Declaration are followed up and reports are submitted to the PSC within specified timelines. It may underscore the need for restoring the political commitment of the AU and other stakeholders in the principle of zero tolerance to coups and the automatic application of suspension upon the occurrence of UCG such as coups as a matter of principle. The PSC may also underscore the need for building strong consensus within the AU and among other stakeholders with the relevant leverage when considering and adopting enforcement measures. It may call on the AU Commission, in collaboration with RECs, to work towards the development of a comprehensive sanctions framework which illustrates relevant criteria and benchmarks for imposition, monitoring and lifting of sanctions. It may also urge the immediate activation of its Sanctions Committee which, supported by an expert body, could play an instrumental role in monitoring implementation of sanctions imposed by the Council and in assessing fulfilment of conditions for their lifting thereof. It may also reiterate the sentiment of the Accra Declaration on ensuring that sanctions do not harm the ordinary citizens of a non-complying member State. It may further highlight the importance of having clarity on the goals intended with sanctions so that they do not aggravate political disputes and the need to closely examine the humanitarian and human rights consequences of sanctions, particularly on countries experiencing overlapping governance, security and humanitarian crises.
