Treaties without teeth - Case of the Guinea-Conakry coup

BY: Nana K. A. Busia Jr
Delegates at the opening session of the 33rd African Union Summit at the AU headquarters in Addis Ababa, Ethiopia, February 9, 2020.
Delegates at the opening session of the 33rd African Union Summit at the AU headquarters in Addis Ababa, Ethiopia, February 9, 2020.

What the coup d’état in Guinea Conakry, on September 5, has brought to the fore is that the treaty instruments on governance systems in Africa, however well drafted, lack the needed political will for enforcement of the sanctions they provide for.

Consequently, in the event of a breach by a government, the member states, represented by their respective governments, deliberately do not invoke the sanctions regime of the said treaties against one of their own club, an African government.

The “original sin” in the Guinean coup saga, therefore, it is submitted, has to do more with the initial breach of treaty obligations by the Alpha Conde government; a treaty which outlaws the extension of the presidential term of office beyond the constitutionally permitted limit and the unwillingness of the member states in applying sanctions as provided for in the applicable treaty regime that the AU Member States are parties to.

One such treaty is the African Charter on Democracy, Elections and Governance, (ADEG) adopted in 2007 and entered into force in 2012.

It is one of the most comprehensive and well-thought-out treaties with clear appreciation of the broad African continental context, in terms of political history, culture and level of economic development and how these factors impact on our governance system.

Backdrop, context

On the morrow of political independence in 1960s, most African states became characterised by one party state dictatorships, despotism, life presidency with no term limit of their rule. During this period, it is no exaggeration to state that all institutions within state and society were generally subordinated to the executive Presidency.

This was later, from mid-1960s all through to the 1980s, followed by military coup d’états which dotted the continent.

Enter 1990s with the end of the Cold War which almost all countries were impelled to usher in constitutional government through competitive multi party politics. For obvious reasons, a notable development, in terms of constitutional law, was an entrenched provision in all the constitutions that limited presidential terms to two.

But two scenarios have since emerged on the African political landscape. First, the constitutions are being amended through manipulation that allows certain incumbents to stay beyond the terms originally stipulated in the constitutions.

Examples abound, including Uganda, Rwanda, Togo, Cote d’Ivoire, Guinea-Conakry and others. There have been instances also of rigged elections with incumbents refusing to hand over to those who really won elections.

In 2001, the Organisation of African Unity (OAU) was replaced with the African Union (AU) and correspondingly shifted, inter alia, its principled position of “non- interference” in the so-called “internal affairs” by the OAU of member states to “non -indifference” under the new progressive treaty which member states had negotiated called the Constitutive Act of the African Union, and came to effect in 2001.

This normatively created an enabling climate for constitutionalism and democracy. It also meant that member states would now be subjected to scrutiny by their peers on how, inter alia, they access political power within their countries.

To further reinforce governance and enhance democracy on the continent, the African Charter on Democracy, Elections and Governance was also adopted in 2007. This is a treaty on governance and democracy that is also uniquely justiciable, meaning it can be a subject of litigation before a court or quasi-judicial forum.

The Continental Normative Framework- ADEG

Mindful of this backdrop, the ADEG sought to correct the “mischief” of two situations among others things: (1) the extension of the constitutional term limits of the executive; and also (2) prohibit the usurpation of power through a coup d‘etat.

Further to that, the Charter provided in article 23 that State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union:

1. Any putsch or coup d’état against a democratically elected government.

4. Any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections;

5.Any amendment or revision of the constitution or legal instruments.

The Charter also in articles 24 and 25 stipulates several forms of sanctions against states that breach this treaty obligation, and they include: Suspension from AU membership; economic sanctions, denial of the right to contest political office and even a trial of the perpetrators before a competent court of the African Union.

Original sin of Alpha Conde

Guinea is one of the 50 African states which as of 2019 had ratified the Charter and, therefore, was bound by its provisions in law. President Alpha Conde was first elected under the 2010 constitution of the Republic of Guinea in the same year, 2010. Then he got his second term in 2015.

The said 2010 Constitution provides for only two terms limit for the presidency. It clearly stipulates that “no one can exercise more than two presidential terms, consecutive or not.” In addition, the constitution clarifies, for the avoidance of any doubt, that the number of the duration of the mandate of the President of the Republic of Guinea is not to be made an objective of constitutional amendment. (emphasis mine).

In spite of this prohibition of the amendment of limit of terms, President Alpha Conde manipulated the political processes and succeeded in getting the constitution amended in March 2020, for a third term, and in October 2020 elections were held. He was declared winner and sworn in December 2020 amid a protest that resulted in the death of as many as 30 persons.

Herein lies the original sin in Guinea – Conakry with the complicity or acquiescence of the AU member states. This is because the extension of the term of office for a third term amounted to unconstitutional change of government within the meaning of article 23 of the ADEG disused above.

Why was President Alpha Conde’s government not sanctioned by the AU as an illegality? The coup by Col Doumbouya was also a violation of article 23 (1) for being a coup against an elected government.

This presents a situation of two illegalities and it does not matter if the coup was intended to remedy the original illegality of the President Alpha Conde, it is still an unconstitutional change of government and thus also an illegality.

The writer is Research Fellow & Guest Lecturer in Public International law, ICWS, School of Advanced Studies, University of London and a former Senior and Legal & Policy Advisor of the UN.