Updated Briefing on the development of the Common African Position on cyber security in Africa

Updated Briefing on the Development of the Common African Position on Cyber Security in Africa; Presentation of the Draft ToR of the PSC Sub Committee on Sanctions; Draft ToR of Ministerial Committee on Terrorism; and Draft Manual on Modalities for Enhancing Coordination Between the Peace and Security Council of the African Union and the African Members of the United Nations Security Council

Date | 23 August 2023

Tomorrow (24 August) the African Union (AU) Peace and Security Council (PSC) will convene its 1170th Session. This session will cover a range of important topics, including a briefing on the development of the Common African Position (CAP) on cybersecurity in Africa, the presentation of the Draft Terms of Reference (ToR) of the PSC Sub-Committee on Sanctions, a Draft ToR of Ministerial Committee on Terrorism and a Draft Manual on Modalities for Enhancing Coordination Between the PSC and the African Members of the United Nations Security Council (UNSC).

The session is expected to begin with the opening remarks by Willy Nyamitwe, the Permanent Representative of Burundi and Chairperson of PSC for the month of August. This will be followed by a statement from Bankole Adeoye, the AU Commissioner for Political Affairs, Peace and Security (PAPS). Dr. Guy Fleury-Ntwari, Legal Counsel of the AU and Director of Legal Affairs and Prof. Mohamed Helal, a member of the African Union Commission on International Law (AUCIL) and Special Rapporteur on the Prohibition on Intervention in the Internal and External Affairs of States, are also expected to give a presentation. In addition, Tapiwa Masunungure Zimbabwe’s Committee of Experts member, who chaired the retreat of the Committee of Experts that considered the three documents will deliver a presentation.

Tomorrow’s session on the update briefing by AUCIL is a follow-up to the decision of the 1120th session of the PSC and the request in its subsequent 1148th session. During the 1120th session, which was dedicated to the inaugural engagement of the PSC with the AUCIL, the PSC recognized the need for the development of a CAP on the application of international law on cybersecurity. It was the first time the PSC approached the issue of cyberspace for peace and security from the perspective of regulating it with the rules of international law. The session emphasized the importance of cybersecurity and the need for adequate regulation. Additionally, discussions were held on the management and regulation of cyberspace in order to prevent activities that threaten international peace and security, including the emergence of cyber-weapons and the manipulation of cyberspace for political influence.

Most importantly, during the session, the PSC acknowledged the applicability of international law to cyberspace, and called on AU Member States to adopt a CAP and emphasized the need for Africa to actively engage in the process. To this end, the Council tasked the AUCIL, in collaboration with the AU Commission, to organize consultations with relevant stakeholders on the application of international law to cyberspace. In its most recent 1148th session on cybersecurity, the PSC requested ‘the AU Commission on International Law to expeditiously complete, and submit to the Peace and Security Council, the draft statement of a Common African Position on the Application of International Law to Cyberspace.’

In response to PSC’s assignment from its 1120th session, the AUCIL collaborated with the AU Commission and organized  a series of capacity-building training sessions for AU member states. These sessions aimed to equip participants with the knowledge and skills necessary to effectively contribute to the formulation of the CAP regarding the application of international law to cyberspace.

The first session was held online on 29 and 30 March 2023, while the second session took place in Addis Ababa from 12 – 14 June 2023. The third and final part of the capacity-building program took place in New York from 19 – 21 July 2023. The program was attended by experts representing AU Member States who are responsible for following multilateral processes. The third session of the training aimed to strengthen the capacities of AU Member States in cyberspace and international law in order to empower them in multilateral processes like the Open-Ended Working Group on Cybersecurity and the UN General Assembly’s 6th Committee. It also aimed to assist in the process of reviewing and enriching the draft CAP statement.

It is therefore expected that the PSC will receive a progress report and a presentation on the CAP statement in tomorrow’s session. It may be of interest for members of the PSC to know whether the draft statement identifying the rules of international law applicable to cyberspace being presented to the PSC was considered and reflected upon by the AUCIL and updated based on such reflection and whether it covers rules on responsible state behavior in cyberspace. The PSC may also consider whether the statement would benefit from consideration and input of the AU Special and Technical Committee on Justice and Legal Affairs for it to receive strong support and ownership on the part of Member States and the AU broadly. The PSC may also consider how the statement can help in informing the development of a regional legal framework and strategy for promoting the rules of international law governing cyberspace for addressing threats to peace and security arising from cyberspace.

Also worth mentioning for the PSC is whether and how the draft statement took account of and built on the various decisions of the PSC relating to cyberspace and peace and security. Although the PSC has not regularized the decision of its 850th session dedicating a session on this theme on an annual basis, it has since then convened a number of sessions highlighting its increasing engagement and concern about the peace & security implications of cyberspace. Of direct relevance for tomorrow’s session, among other critical points, the 1097th session drew attention to the need for enactment of necessary legislations and regulations at national, regional and continental levels to govern issues related to cyberspace. Most recently, the PSC considered the issue of cybersecurity during its 1148th session last April under Tunisia’s Chairship of the PSC. As the PSC pointed out, its focus on this subject is informed by ‘the growing threat to peace, security and stability in the Continent emanating from the increasing cyber-attacks, malicious use of information and communication technologies (ICTs) and incidents of unethical and hostile cyber-activities undertaken by both, state and non-state actors, including the targeting of government institutions and public infrastructure; the spread of misinformation and disinformation, subversive activities and interferences with national government processes, as well as the promotion of ideologies of hate and hate speech.’

In addition to the CAP statement on cybersecurity, the PSC is expected to receive a presentation on three documents. It is to be recalled that these documents were finalized during the Committee of Experts (CoE)’s retreat that was held from 18 – 22 May 2023.

One such document is the draft TOR of the PSC Committee on Sanctions. During the Reflection Forum on Unconstitutional Changes of Government (UCGs), which was convened in March 2022 in Accra, Ghana, one of the recommendations was to reactivate the PSC Sanctions Committee. Subsequently, the PSC held a session on sanctions and enforcement capacities in the deterrence against UCGs and called for the full operationalization of the PSC Sub-Committee and the development of the requisite technical capacities to ensure its effectiveness. During this 1100th session, the Council also instructed the CoE to develop the ToRs for the PSC Sub-Committee on Sanctions. It is important to note that the CoE was initially established in 2009 by the PSC’s 178th session communique, but it has never been operational. During the CoE retreat in May, the CoE identified certain issues, such as the composition of the Sub-committee and the level of its chairship that require the guidance of the PSC with respect to the Sanctions Sub-Committee.

The second document is the draft ToR of the Ministerial Committee on Terrorism. One of the key outcomes of the 16th Extraordinary Summit of the AU Heads of State and Government on UCGs, which was held in May 2022 in Malabo, Equatorial Guinea, was the establishment of the Ministerial Committee on Counter Terrorism. This committee is meant to coordinate, monitor, evaluate and follow-up on the mechanisms of the implementation of the decisions made during the summit. In this regard, it was expressed in the PSC’s 1107th session communique that the PSC looks forward to the first meeting of the Ministerial Committee on Terrorism. Since the decision of the Malabo Summit was for the AU Commission to prepare the ToR of the Committee, in tomorrow’s meeting the CoE may propose that the draft ToR be referred to the AU Commission for finalization and presentation to the minsters. The ToR is expected to outline the purpose, goals, scope, working arrangement and composition of the ministerial committee.

Lastly, the PSC will consider the draft manual on modalities for enhancing coordination between the PSC and the African members of the UNSC. The development of this manual is in line with the request made by the PSC during its 1056th session that considered the Conclusions of the 8th High-Level Seminar on Peace and Security in Africa. The session also requested for the manual to be considered and adopted by the 9th Annual High Level Seminar on Peace and Security in Africa on 18 January 2023. Accordingly, the draft manual was presented to the participants of the Seminar and it was requested to circulate the draft to all AU member states for inputs before submitting it for the consideration of the PSC. Following its update during the CoE meeting last May, the representative of the CoE is expected to propose the adoption of the manual by the PSC during tomorrow’s session.

What is expected following the presentations of these three documents is that the PSC will take the required steps including the adoption of the documents and/or clearing of the documents that may require adoption at a different forum or level.

The outcome of the session is expected to be a Communiqué. It is expected that the PSC will reiterate the urgent need for a Common African Position on the application of international law on cyberspace, as well as the need for Africa to actively engage in the process. It is also expected that it will commend the work of the AUCIL in working towards appraising representatives of AU Member States of the latest developments in the field of the rules of international law applicable to cyberspace. It may also emphasize on the importance of capacity building and the need to continue such efforts. The Council may also welcome the draft CAP statement on cyberspace for peace and security. The PSC may recommend that it is presented to relevant AU bodies such as the STC on Justice and Legal Affairs for wider input and build on and reflect the relevant decisions of AU policy organs including those of the PSC. The PSC may request the AU Commission to use the statement in the development of a regional legal framework and strategy for promoting the rules of international law governing cyberspace for addressing threats to peace and security arising from cyberspace.

Additionally, the PSC may welcome the work of the CoE in developing the three documents presented to it. It may also adopt the Terms of Reference of the PSC Sub-Committee on Sanctions with clarification of the issues presented to it for its guidance. The Draft Manual on Modalities for Enhancing Coordination Between the PSC and the African Members of the United Nations Security Council is expected to be adopted by the PSC. The PSC may also refer the Draft ToR of the Ministerial Committee on Terrorism to the AU Commission for its updating and submission for adoption by AU Ministers.

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.

Open Session on Promoting Constitutionalism, Democracy and Inclusive Governance to Strengthen Peace, Security and Stability in Africa

Popular Uprisings and Unconstitutional Changes of Government

Date | 27 January, 2022

Tomorrow (27 January), the African Union (AU) Peace and Security Council (PSC) is expected to hold its 1061st meeting. The open session will take place under the theme ‘Promoting Constitutionalism, Democracy and Inclusive Governance as a Means of Strengthening Peace, Security and Stability in Africa’.

Following opening remarks by Permanent Representative of Ghana to the AU and Chairperson of the PSC for the month, Amma Adomaa Twum-Amoah, AU Commissioner for Political Affairs, Peace and Security (PAPS), Bankole Adeoye is expected to make a statement. Emma Birikorang Deputy Director of the Kofi Annan International Peacekeeping Centre (KAIPTC) and Paul Simon, the East Africa Regional Representative and Representative to AU of the Institute for Security Studies (ISS) are also expected to deliver presentations. Representatives of the Regional Economic Communities and Regional Mechanisms (RECs/RMs) as well as members of the international community represented in Addis Ababa are also expected to participate in the session.

Tomorrow’s session comes against the backdrop of the resurgence in unconstitutional changes of government (UCG) and related challenging political transitions witnessed in the continent throughout 2021. During the year, the continent has seen the occurrence of four successful coups (in Chad, Guinea, Mali and Sudan). As 2022 commences, another coup has taken place in Burkina Faso following the detention of President Kabore by mutinous soldiers. In light of this concerning trend, the upsurge in UCG formed part of the key issues addressed at the Eight High-Level Seminar on Peace and Security in Africa convened from 2 to 4 December 2021 in Oran, Algeria. As a key recommendation, participants of the seminar proposed the review of the African Governance Architecture (AGA) as well as the 2000 Lomé Declaration on Unconstitutional Change of Government, in order to ensure that these frameworks are more suitable to the contemporary peace and security landscape of the continent. The sessions is expected to reflect on the concerning resurgence in UCG and its implication on constitutionalism and democracy as well as its impact on peace and security in Africa.

The AU already has developed various norms promoting democracy and constitutionalism and banning UCG in the form of key instruments including the AU Constitutive Act, the PSC Protocol, the 2000 Lomé Declaration, the Ezulwini Framework, the African Charter on Democracy, Elections and Governance, and the African Charter on Human and Peoples’ Rights (Banjul Charter). There is however lack of consolidated approach in the implementation of these instruments. Further to condemning UCG and imposing applicable sanctions whenever they take place, it is important to ensure that the underlying root causes which lay a fertile ground for the occurrence of coups are also addressed. As observed in various previous cases, some of the key underlying causes of UCG in Africa relate to democratic deficits, mainly the extension of term limit through contested constitutional amendments and the absence of transparency and credibility in the conduct of elections. The importance of adhering to basic democratic principles as a way of averting the risk of UCG is also clearly captured in the 2000 Lomé Declaration. One of the points worth reflecting at tomorrow’s session is therefore the importance of adopting a consolidated approach in implementing AU norms on democracy and constitutionalism in order to prevent the very occurrence of UCG by addressing the root cause as well.

Over the years, the PSC has convened various sessions dedicated to the theme of UCG and popular uprising which are essential in informing tomorrow’s session. The latest of these sessions was the 871st session convened on 22 August 2019, where the PSC noted governance issues as one of the underlying root causes of conflicts and crises in Africa. Studies also indicate that coups experienced in Africa between 1960 and 2000 have had devastating impact on the continent’s stability. Another important PSC session on the topic was the 432nd session convened on 29 April 2014 which served to adopt some key decisions including the establishment of a sub-committee which could undertake an in-depth review of AU’s relevant normative frameworks to develop a consolidated approach in responding to UCG and popular uprising in Africa. Tomorrow’s session may serve to follow up on the progress in the establishment of this sub-committee.

In addition to ensuring coherence in the implementation of AU norms on democracy and constitutionalism, it is also important to address how the AU should approach cases of popular uprising. The AU is yet to develop a norm on popular uprising and elaborate its correlation with UCG. It is noteworthy that while condemning violent uprisings, the PSC has at various occasions affirmed the legitimacy of peaceful popular uprisings. For instance, at its 432nd session the council underscored some of the circumstances which would justify popular uprising, underscoring the oppressive nature of regimes; systematic abuse of human rights; and failure of governments to fulfil their responsibilities as the conditions which could trigger “the right of the people to peacefully express their will against oppressive systems”. In responding to the military takeover of power in Sudan in 2019 at its 840th session, the PSC also made a clear distinction between its condemnation of the military’s power grab and its recognition of the aspiration 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”.

Another critical issue which warrants the Council’s attention is the growing concern over security challenges, particularly terrorist insurgency and the lack of effective government response which has in multiple cases served as the central justification given by militaries for staging coups. Notwithstanding the manipulation of such justification as a means of legitimising suspension of constitutions, there is indeed a growing frustration over the lack or inadequate government response to security challenges. In addition to its immediate security related impact therefore, the absence of an effective government response to security threats endangers not only the stability of a country but also democratic rule. Hence, as the rate and complexity of security threats in the continent increase, governments role remains important in the way it handles and responds to such threats.

Incorporating indicators related to human rights and governance within AU’s continental early warning system could also be an important aspect which the Council may consider. Closely monitoring situations in individual member States which are at risk of experiencing disruptions to constitutional rule could play a crucial role in averting UCG by setting the stage for the deployment of AU’s preventive diplomacy. Lack of inclusive governance, political confrontations, highly contested elections, constitutional amendments to extend presidential term limits, and grave violations of human rights and democratic principles are some of the major warning signs of disruption to democratic rule as well as peace and security in Africa.

The expected outcome of tomorrow’s session is a communiqué. The Council may condemn all acts which endanger constitutionalism and democracy and threaten the continent’s peace and security. It may express concern over the increasing trend of UCG in Africa and it may underline the importance of enforcing and advancing the relevant AU norms to curb this trend. In this respect, it may urge all AU member States to sign, ratify and implement relevant AU norms on human rights and democracy. It may also follow up on the implementation of its previous decisions on the theme, particularly the request made at its 432nd session for the AU Commission to finalise the draft AU framework on responses to popular uprisings and to submit the draft for Council’s consideration. Council may also request the AU Commission to propose modalities for the review of AGA and the Lomé Declaration as well as other relevant AU instruments including the Banjul Charter.

Brainstorming Session on “Popular uprisings” and its Impact on Peace and Security on the  Continent

Popular Uprisings and Unconstitutional Changes of Government

Date | 22 August, 2019

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.