Tomorrow (22 August) the African Union (AU) Peace and Security Council (PSC) will hold its 871st meeting. This is designed to be a brainstorming session on the concept of “popular uprisings” and its impact on peace and security on the continent.

International Institute for Democracy and Electoral Assistance (IDEA) and the Institute for Security Studies (ISS) are expected to brief the PSC. The Department of Political Affairs that has been engaged on the subject of popular uprisings and unconstitutional changes of government (UCG) is also best placed to provide insights on the subject. Ambassador Albert Chimbindi, chair of the month, is expected to make a statement highlighting the issues that need to be interrogated during the session.

While recent events in Algeria and more specifically Sudan reignited policy interest in the subject, it was the popular uprisings that erupted in North Africa in 2011 that first brought the issue of popular uprising to the fore of continental peace and security agenda. The AU responded to those events, particularly the precedent setting events in Tunisia, in relation to its norm banning unconstitutional change of government (UCG). Although in a strictly legalistic interpretation the ouster through street protest of Tunisia’s then President Ben Ali in early 2011 could have been deemed an UCG on account of the fact that it was not constitutionally envisaged, the PSC did not consider the lack of stipulation of changing government through popular uprising in Tunisia’s constitution as an UCG. Instead, it expressed its respect for the democratic aspiration and the will of the people, implying that the demand for constitutional rule is not simply about respecting constitutional processes for their own sake but about safeguarding the will of the people.

Clearly the issue of popular uprising has since that time become recurrent, it was in 2014 that the PSC looked specifically into the question of the relationship between popular uprising and UCG. Under Nigerian chairmanship in April 2014, the PSC dedicated its 432nd session to the theme ‘unconstitutional changes of government and popular uprisings – Challenges and lessons learnt’. In the statement issued at the session, the PSC affirmed the legitimacy of popular uprisings. It in particular held that ‘[i]n circumstances where governments fail to fulfill their responsibilities, are oppressive and systematically abuse human rights or commit other grave acts and citizens are denied lawful options,’ it ‘recognized the right of the people to peacefully express their will against oppressive systems.’

At the same time, the PSC in this statement also underscored the need ‘for developing a consolidated AU framework on how to respond to situations of unconstitutional changes of government and popular uprisings’. It in particular noted that such a framework ‘should include the appropriate refinement of the definition of unconstitutional changes of government, in light of the evolving challenges facing the continent, notably those related to popular uprisings against oppressive systems, taking into account all relevant parameters.’ Indeed, this is important since the AU norm on UCG as it stands offers no clear and systematic guidance on how to differentiate legitimate popular uprising from acts that can be considered as UCG and on how to respond to such popular movements. The PSC accordingly tasked ‘the Commission to prepare the elements of the framework and to submit to it for consideration.’

While there has been efforts within the Department of Political Affairs to undertake the review process, there has been no follow up on this subject from the side of the PSC. Instead, the issue featured as part of the final report of the AU High-level Panel on Egypt in June 2014. Observing the lacuna in the AU norm on UCG, the Panel proposed the elaboration of a guideline for determining the compatibility of popular uprisings that result in a change of government with the norms on UCG. According to the proposal, for popular uprisings to be compatible with existing AU norms, consideration should be had to the following five elements: ‘(a) the descent of the government into total authoritarianism to the point of forfeiting its legitimacy; (b) the absence or total ineffectiveness of constitutional processes for effecting change of government; (c) popularity of the uprisings in the sense of attracting significant portion of the population and involving people from all walks of life and ideological persuasions; (d) the absence of involvement of the military in removing the government; (e) peacefulness of the popular protests’.

As can be seen from these considerations, rather than being completely new the Panel built on the press statement of the PSC from its 432nd session as the references to failure of the government or its descent into repressive authoritarian rule and the lack of any effective constitutional means for changing the government (the principle of last resort) make it clear.

In a measure that illustrated an emerging norm affirming the legitimacy of popular uprisings, the PSC reiterated the language it used in its press statement of 432nd session in the case of Burkina Faso. The PSC in the communique of its 465th session relating to the situation in Burkina Faso of made reference to “the recognition of the right of peoples to rise up peacefully against oppressive political systems”. Even more recently in relation to the situation in Sudan, the PSC clearly stated its recognition of the ‘legitimate aspirations of the Sudanese people to the opening of the political space in order to be able to democratically design and choose institutions that are representative and respectful of freedoms and human rights’. The PSC accordingly made a distinction between the popular protests in Sudan and the military takeover of power, which it condemned as being contrary to the AU norm on UCG.

Clearly, AU’s treatment of the popular uprisings in North African, Burkina Faso and most recently in Sudan vis‐à‐vis its  norm  on  UCG  has  signaled  a  new  approach  in  interpreting legal frameworks that provide justification and  legitimacy  for  popular  uprisings  in  ousting  authoritarian regimes. Yet, although the considerations elaborated in the final report of the AU High‐level Panel on  Egypt  offer  the  framework  for  establishing  the  framework for distinguishing those popular uprisings that  constitute  UCG  from  those  that  do  not,  there  has  been no follow up to the Panel’s useful foundational work. Accordingly, there remain lack of clarity including on  the  question  of  what  makes  an  uprising  or  protest  movement popular and hence consistent with the AU norm on UCG.

The  most  recent  background  to  the  agenda  of  this  session is the surge of protest events on the continent. While  these  events  have  been  witnessed  in  many  parts  of the continent, they have been notable, among others, in  Burundi,  Congo,  DRC,  and  Ethiopia.  Indeed,  some  of  the conflict data sets notably the Armed Conflict Location and Event Data (ACLED) noted that, accounting for a total of 5660 events in 2017, protests and riots have become  the  leading  conflict  or  crisis  events  on  the  continent.

This session affords the PSC an opportunity for clarifying a  number  of  questions  related  to  popular  uprisings  including vis‐à‐vis the list of considerations developed in the  June  2014  AU  High‐Level  Panel  report.  Apart  from  the question noted above, these questions include who makes  the  determination  of  when  an  uprising  becomes popular,  what  sets  ordinary  protest  events  apart  from  popular uprisings and whether there is a threshold that should  be  met  for  making  such  determination.  While  these questions are important, it is worth recognizing that  there  can  be  no  full  proof  and  mathematically  precise formula for making determination on these questions.

What  these  questions  rather  highlight  is  the  need  for  following up on the outstanding tasks stipulated in the press statement of the 432nd session of the PSC. The PSC is  holding  tomorrow’s  brainstorming  session  five  years  after its landmark meeting on UCG and popular uprising in 2014. This presents it with the opportunity for making such follow up to the outcomes of its 432nd session.
As  a  brainstorming  session,  the  expected  outcome  of  the session remains unclear. Yet, irrespective of whether the  outcome  takes  the  form  of  a  communique  or  press  statement, it is expected that the PSC would reiterate its 432nd session on the need for addressing the gap in the AU normative framework. More specifically, the PSC may also task the AU Commission to establish an ad hoc body composed  of  the  PSC  Committee  of  Experts  and  legal  experts who have studied the issue to produce and submit  to  it  a  proposal  with  objective  guidelines  on  determining popular uprisings based on the various PSC outcome documents and the outline set out in the report of the AU High‐Level Panel and with the support of the Department of Political Affairs and the AU Legal Counsel. The PSC may also call on for addressing the root causes of  popular  dissent  highlighted  in  its  432nd  session  including through the expansion of the democratic space, respect for constitutional term limits, ensuring the credibility of elections as the normal avenue for changing governments  and  by  addressing  socio‐economic  grievances and inequalities.