Almost a year ago, the African Union (AU) Peace and Security Council (PSC) faced a test to its anti-coup norms during Chad’s presidential elections, where interim leader Mahamat Idriss Déby Itno ran for office despite the Council’s affirmation of his non-eligibility . This position was rooted in the AU’s established norm prohibiting coup leaders from contesting post-coup elections. In the 9 April 2024 edition of Amani Africa’s Ideas Indaba, published ahead of Chad’s elections, it was presciently warned: ‘If the PSC is unable to enforce the rule on non-eligibility concerning Chad, it would be the end of any future application of this rule as well.’ In an edition of Amani Africa Dispatch of 2 May 2024, it was also observed that the election of Debi, despite PSC’s decision on non-eligibility of members of the Transitional Military Council (TMC) that he was a member of, may set a precedent that juntas in other suspended AU member states may follow.

Election of Debi, despite PSC’s decision on non-eligibility of members of the Transitional Military Council (TMC) that he was a member of, may set a precedent that juntas in other suspended AU member states may follow. This prediction is now imminent to materialise in Gabon.

This prediction is now imminent to materialise in Gabon. On 12 April, as Gabonese voters make their way to the ballot booth for casting their votes to elect their president, marking the end of 18-month political transition following the August 2023 military coup that deposed President Ali Bongo, General Brice Oligui Nguema, the interim president and leader of the coup, will be on the ballot. Nguema’s candidacy raises normative challenges for the AU, particularly in relation to Article 25(4) of the African Charter on Democracy, Elections and Governance (ACDEG), which prohibits individuals who perpetrate unconstitutional changes of government from participating in elections aimed at restoring democratic order or from holding positions of political responsibility.

Following the 30 August 2023 coup, the PSC, during its 1172nd session, suspended Gabon from all AU activities until constitutional order is restored. The PSC called for the swift restoration of civilian authority, including through free, fair, credible, and transparent elections under AU observation. The timely conclusion of the transition and the convening of the elections are positive developments towards meeting PSC’s demand under its 1172^nd session. Yet, as clearly anticipated in Amani Africa Dispatch on the election in Chad, Nguema’s candidacy, contrary to established AU norm, will carry significant implications for the continuing credibility of the norm and for AU’s broader engagement with other countries under political transition in respect to the application of this norm.

While Nguema’s bid for the presidency was widely anticipated, the PSC did not indicate that the candidacy of members of the transitional government in Gabon would be contrary to established AU norms. At least when it came to Chad, the PSC made that clear, despite not being able to enforce it. The fact that the PSC did not make this clear during its visit to Gabon drew criticism for ‘going easy’ on the transitional authorities. During the field mission, civil society representatives raised concerns that the upcoming election would entrench Nguema’s rule and derail the prospect of a genuine democratic transition. Yet, the mission report contains no indication that the PSC used the visit to press Gabon’s military leaders to uphold AU principles, including the prohibition against coup leaders contesting elections, nor was there any such indication in the communique the PSC adopted on its field mission to Gabon.

While Nguema’s bid for the presidency was widely anticipated, the PSC did not indicate that the candidacy of members of the transitional government in Gabon would be contrary to established AU norms.

In respect to the election in Chad, while the AU Commission Chairperson refrained from issuing the customary congratulatory statement and later clarified that doing so would have violated PSC decisions, the PSC itself moved past Chad’s disregard of its decision and established AU norm. On top of not designating as coup the seizure of power by the TMC following suspension of the constitution of Chad, following the election, the PSC listed Chad among countries that had ‘successfully’ held elections in the first half of 2024. And in a communiqué adopted at its 1224th session, it congratulated Chad —effectively disregarding its standing decision and the clear terms of Article 25(4) of ACDEG. The PSC went further by inviting Chad to address that session, which considered the AU Commission’s half-year report on elections in Africa.

The immediate question that these developments raise for the AU and the PSC is whether the holding of the election in which Nguma becomes victorious would mark the restoration of constitutional order that would warrant the lifting of Gabon’s suspension. Indeed, all indications are that AU member states are disposed not only to accept such an outcome but also to welcome the conclusion of the transitional process within the agreed timeline despite the fact that aspects of the process fly in the face of a clear provision in Article 25 (4) of ACDEG.

Questions are also being asked on why we are witnessing this departure from ACDEG’s Article 25 (4) norm, hence this regressive trend. The first factor that is put forward to explain this could be the weakening of the consensus of member states around the AU’s anti-coup norm. Indeed, this may have a role but has only limited explanatory power. The other explanation relates to the inconsistencies in the application of AU’s anti-coup norm and the legitimacy crisis that arose to the application of the norm due to the failure of AU and regional bodies to act against conditions of unconstitutionality such as manipulation of presidential term limits. Beyond these, the current disposition of member states to tolerate disregarding of ACDEG’s Article 25(4) norm arose from the increasing challenge that the prolonged suspension of a significant number of AU member states poses to regional cooperation and mobilising collective responses to other challenges.

The current disposition of member states to tolerate the disregarding of ACDEG’s Article 25(4) norm arose from the increasing challenge that the prolonged suspension of a significant number of AU member states poses to regional cooperation and mobilising collective responses to other challenges.

Notwithstanding the force of such justification, the result of the aforementioned trends with respect to Chad and Gabon is actually the emergence of a tendency of laxity in enforcing ACDEG’s Article 25(4) norm on the part of AU member states and the AU itself. One way of looking at this could be to consider this tendency as indicative of a possible evolution towards the emergence through practice of a customary norm of international law in Africa accepting the eligibility of coup makers for elections that are held for restoring constitutional order. However, such a reading would be implying that the practice is of such a nature that it firmly implies the emergence of the element of lawmaking through custom in international law, namely opinio juris, meaning that states believe that they intend to depart from the existing norm and be legally bound by the new practice.

One way of looking at this could be to consider this tendency as indicative of a possible evolution towards the emergence through practice of a customary norm of international law in Africa accepting the eligibility of coup makers for elections that are held for restoring constitutional order.

That would mean that representatives of AU member states are actually engaging in the formation of a norm through practice that is detrimental to the stability of governments, hence contrary to their interest. Because, despite their practice, it is difficult, if not impossible, to suggest that member states accept the full consequences of the demise of ACDEG’s Article 25(4) norm, which includes the unravelling of the AU’s entire anti-coup norm.

Indeed, the implications of the cost arising from disregarding this norm in Chad and Gabon are not confined to the question of how to deal with the remaining five suspended countries if military leaders in these countries opt to run for elections. It would have far wider consequences for AU’s electoral and constitutional norms writ large.

The demise of this norm will have a heavy price on account of the fundamental reason for the adoption of this particular norm. Notably, it would signal to members of the militaries of all other AU member states that the cost of perpetrating a coup is now lifted. It may thus unintentionally suggest to the militaries across the continent that a coup has once again become a viable avenue for ascending to power with the possibility of it being recognised by the AU following the coup’s legitimisation through elections. Because in a scenario in which most of the coup makers, in the countries that experienced military seizure of power, legitimise themselves through elections, it would be difficult to imagine that members of the militaries of other AU member states would not take note. Accordingly, to suggest that AU member states are engaging deliberately in the process of removing ACDEG’s Article 25(4) norm and replacing it by one that allows coup makers to legitimise themselves through elections would mean to accept that member states are removing a key disincentive that discourages their militaries from considering coup as an option for ascending to power. Although their practice may unintentionally signal such an outcome, they cannot be considered as engaging in such a self-harming enterprise by design.

Yet, this would still leave us with another question: How else should we then understand this current trend in which ACDEG’s Article 25(4) norm is being put aside?

Perhaps, the most accurate way to understand this trend is as an aberration specific to this particular season as opposed to one that is generalisable as setting a standard for all occasions. This, of course, does not exonerate nor reduce the seriousness of the blow that the laxity of the AU in enforcing the norm on non-eligibility of coup makers for elections organised for restoring constitutional deals to the AU’s anti-coup norm and AU’s credibility itself. As such, there is a need for a well-considered, deliberate and candid reflection on the impact of non-enforcement of ACDEG’s Article 25(4) norm in order to ensure that AU’s anti-coup norm survive a scenario in which the military leaders of all suspended AU member states run for elections following the precedent in Chad and Gabon.

Perhaps, the most accurate way to understand this trend is as an aberration specific to this particular season as opposed to one that is generalisable as setting standard for all occasions.