AU and Unconstitutional Governments: Preventing Maliexit in ECOWAS and Ensuring Regional Integration

Bola A. Akinterinwa

Making progress backwards appears to be the current major challenge of the African Union (AU)’s efforts at constitutional governance in Africa. When several African States acceded to national sovereignty in the 1960s and 1970s, coups d’état were frequent and generally tolerated in Africa and in the comity of nations. Under the pretext of corruption-driven bad governance, the military easily changed government forcefully to the extent that militocracy became a new tradition.

However, at the Sixteenth Franco-African Summit held at the French coastal resort of La Baule from 19 to 21 June 1990, in which thirty-five African countries participated, the French government announced a new policy linking development assistance to good governance, apparently in light of media reports on plagues of Africa, black Africa’s bankruptcy, African debt trap, etc. The linkage is also a resultant from French Prime Minister, Michel Rocard’s quest for a revision of foreign aid policy, which underscored human rights and greater aid to the Third World in general as opposed to Francophone Africa.

In the words of the French President then, François Mitterrand, ‘of course we must speak of democracy… You should not consider freedom to be a hidden enemy. It will be, believe me, your best friend… France will link its entire contribution effort to efforts made to move in the direction of greater freedom… Aid will be more lukewarm toward regimes which conduct themselves in an authoritarian manner without accepting evolution toward democracy. It will be enthusiastic for those which take the step with courage’ In this regard, democracy for President Mitterrand is about free election, non-censorship, multipartyism and independent judiciaries.

Thus, the La Baule Franco-African Summit laid the foundational condition for democratization as a condition for development assistance in international relations. African leaders did not hesitate to reckon with the conditionality by noting in its OAU Declaration issued on July 11, 1990, at the end of the 26th OAU Summit in Addis Ababa that all countries had the right ‘to determine, in all sovereignty, their system of democracy based on their socio-cultural values, considering the realities of each country.’ Put differently, the principle of democratization was accepted but the type of democracy to be put in place should be left to Member States to determine. This is the background to the AU’s and ECOWAS adoption of the principle of non-acceptance of changing government forcefully in Africa. But most unfortunately, Africa is increasingly playing host to unconstitutional change of governments. The most recent and problematic is the Malian saga.

AU Policy and Unconstitutional Governments

The African Union has policies that are quite hostile to forceful change of Government in Africa but does not have sanctionary measures that can deter unconstitutional governments. There was the OAU Solemn Declaration on Security, Stability, Development and Cooperation in Africa which was adopted in Abuja, Nigeria, on 8 and 9 May 2000. There was also the decision AHG Dec 142 (XXV) on the Framework for OAU’s reaction to unconstitutional Change of Government adopted in Algiers in July 1999, etc.

As contained in Section 1, Article 1(b) of Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, done in Dakar, Senegal on 21 December 2001, ‘every accession to power must be made through free, fair and transparent elections.’ Article 1(c) adds that the ECOWAS has Zero tolerance for power obtained or maintained by unconstitutional means.’ Both provisions are simply saying that change of government beyond democratic means is not acceptable in Africa. This provision falls under the ECOWAS constitutional convergence principles.

In the same vein, at the level of the Constitutive Act of the African Union, Article 4 on Principles of the AU talked about non-interference and non-intervention in the internal affairs of another State. For example, Article 4(g) provides for ‘non-interference by any Member State in the internal Affairs of another,’ while in Article 4(h) provides for ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.’

Explained differently, interference does not imply the use of force, whereas intervention does. Interference is when a matter falls within the exclusive competence of a sovereign state and when the matter is considered very domestic. As clearly stipulated in Article 4(h), intervention becomes a desideratum when the matter involves grave circumstances, that is, war crimes, genocide, and crimes against humanity, in which case the principle of International Responsibility to Protect also becomes applicable.

In this regard, does a forceful change of government constitute a grave circumstance? When does a coup d’état become illegal or illegitimate, or unconstitutional? This question is pertinent here because in the context of the Malian coup, the people of Mali, in their majority, supported a forceful change of government. There were several days of street protests against the elected government of Mali. Put differently, in whose interest is the protection of democracy? When soldiers plan a coup with the support of the people, should a foreign intervention force support the people’s position or that of the government? It is against this background that ECOWAS interference and possible intervention should be understood, and particularly in terms of the implications for regional and continental integration.

Additionally, The AU Constitutive Act provides for imposition of sanctions in the context of non-payment of assessed dues to the budget of the organization. Article 23(1) says ‘the Assembly shall determine the appropriate sanctions to be imposed on any Member State that defaults in the payment of its contributions to the budget of the Union in the following manner: denial of the right to speak at meetings, to vote, to present candidates for any position or post within the Union or to benefit from any activity or commitments therefrom.’ These sanctions are not a big a deal and they do not appear to cover the issues of forceful change of government.

Article 23(2), under which such forceful change of government can be covered, stipulates that ‘furthermore, any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly.’

Many points are noteworthy in this article. First is the ‘may be subjected to other sanctions.’ The article does not say shall be subjected, meaning that there is no compulsion to act in the event of any infraction. Secondly, the ‘denial of transport and communications links’ does not have any military character, meaning that the punishment for whatever offence is still largely at the level of interference and not intervention and therefore, does not warrant any military intervention. Thirdly, in the event of continued intransigence of non-payment of required contributions or non-compliance with the AU’s decisions and policies, other non-articulated measures could be taken but they must be of a politico-economic nature. This simply means that, in whatever situation, military sanctions are ruled out, but in every recent change of government, it has always been by military coups.

It is useful to recall that on October 8, 2016, more than 30 ex-members of the elite presidential guard, led by Gaston Coulibaly, attempted to overthrow the Burkinabe government by launching attacks on the presidential residence, an Army barracks, and a prison in Ouagadougou. The 2016 coup made it the third after the 2003 and 2015 coups. In 2017, Zimbabwe played host to a coup in November 14-21 while Equatorial Guinea had its own on 27-28 December of the same year. On 7 January 2019, Gabon recorded a failed coup. In September 2021, President Condé of Guinea Conakry was ousted by the Army while the coup in Niger was thwarted in March of the same year. All these coups took place contrary to the rule of non-constitutional change of government in Africa.

The recidivist character of the coups cannot but raise some fundamental questions: is the AU policy of zero tolerance for unconstitutional change of government in Africa being complied with? If yes, why the recurrence of coups? If no, how do we explain the non-compliance? Is it failure of democracy or lack of good governance? Since 1952, Africa has been playing host to attempted and successful coups d’état. Sudan is leading with a total of 17 coups out of which 5 were successful. The last coup in Sudan took place on 10 April 2019. Burundi occupies the second place with 11 coups, while Sierra Leone and Ghana are placed third with 10 coups each. Comoros is placed next with 9 coups, while Nigeria, Burkina Faso, Guinea Bissau, Mali, Benin had 8 coups each and Niger and Chad have recorded 7 coups each. In fact, there were two coups in Sudan in 2021: in September and when General Abdel Fattah Burhan dissolved the civilian arm of the Transitional Government and took over. Mali also had two coups, described as coup within coup, in 2021.

The first coup occurred on 18 August 2020 when some soldiers attacked the Soundiata military base in Kati. There was an exchange of gunfire, attachment and distribution of weapons. The President of Mali, Ibrahim Boubakar Keïta (IBK), who had been president from September 2013 to August 2020, was forced to resign and dissolve his government. Indeed, the Prime Minister, Boubou Cissé and his government promptly resigned and Colonel Assimi Goïta, declared himself leader of the National Committee for the Salvation of the People. Goïta’s coup had a popular support while the international community generally was hostile.

France, the former colonial master, China, the African Union, the European Union condemned the coup. The United Nations Security Council, in a resolution, also condemned the coup. The United States went beyond condemnation by cutting off military aid to Mali on 21 August 2020. In the same vein, the Organisation Internationale de la Francophonie suspended Mali’s membership while the ECOWAS not only suspended Mali’s membership but also directed the closure of land and air borders with Mali. Perhaps more interestingly, at its summit held on 7 September 2020, the ECOWAS gave a deadline of 15 September before which to appoint a new civilian president and prime minister. Even though the directive was not strictly complied with, but a transition government was put in place, on 24 May 2021 another coup d’état took place. The Vice President, Assimi Goïta, replaced President Bah N’daw, Prime Minister Moctar Ouane and Minister of Defence, Souleymane Doucouré:

Maliexit, and Regional Integration

Maliexit means the imminent withdrawal of Mali’s membership of the ECOWAS. It does not mean outright exit yet. The imminent withdrawal of membership is because of the conscious belief of Malians that the ECOWAS was protecting the Government under which the people are seriously suffering. Malians are complaining about poor governance and do see the military junta as their saviour while the ECOWAS is concerned about forceful change of government.

In this regard, not only is the ECOWAS misunderstanding the Malian saga, those condemning the coups in Mali are also refusing to acknowledge that the Malian coups have popular backing, that the coup took place to back the people’s calls for removal of the elected government of President IBK. A catalogue of complaints was established against him, while his inability to respond to the jihadist insecurity threats continued to deepen and generate animosity. Public demonstrations, the so-called June 5 Movement which insisted on the departure of IBK, became the order of the day and the military took advantage of the development to force IBK out of power. When the ECOWAS announced its first set of sanctions, Malians responded with more public demonstration in support of the coupists. This meant that the fight is not between the ECOWAS and the coup makers, but between the ECOWAS, on the one hand, and the military junta and the people of Mali, on the other hand.

True enough, the ECOWAS and the military junta agreed with the 28 February 2022 deadline to hold general elections in Mali. However, as at today, the Goïta junta has not taken any meaningful steps towards holding any presidential elections before next February 28. This has angered the ECOWAS to the extent that it has taken fresh sanctions against Mali.

In the Final Communiqué of the 4th Extraordinary Summit of the ECOWAS Authority on the political situation in Mali, held in Accra, Ghana on 9 January 2022, the Authority ‘regrettably observed the failure of the Transition authorities in Mali to take the necessary steps for the organization of the Presidential elections before 27 February 2022 and contrary to the agreement reached with ECOWAS Authority on 15 September 2020 and the commitment in the Transition Charter.’

More importantly, the authority deeply deplores the obvious and blatant lack of political will from the Transition authorities that led to the absence of any tangible progress in the preparations for the elections, despite the willingness of ECOWAS and all regional and international partners to support Mali in this process.’

It is quite arguable here that regional and international partners are truly prepared to support Mali. For instance, part of Mali’s problems is the increasing hostility vis-à-vis France, the former colonial master, not only in Mali but also in the Sahelian region. The hostility has compelled France to begin to re-strategise and embark on a gradual withdrawal of her troops, numbering about 5000, that have been helping to contain jihadist terrorism in the region since almost a decade now. As noted by France 24, a trilingual French television channel, France ‘first deployed troops in Mali nine years ago to fight a jihadist insurgency and has spent €880 million a year on a mission that has cost 52 French soldiers their lives… More than 4,000 French forces are stationed in the Sahel region of West Africa, most of them in Mali, one of the world’s poorest nations.’

Explained in other words, if France has condemned the coup, it cannot be to the extent of seriously seeking to sanction Mali to the detriment of her own interests in Mali. First, Mali is Africa’s terra cognita of gold mining. Second, France does not want Mali to have any understanding with or hire the Wagner Group of Mercenaries who are believed to be working closely with the Russian government. For French military presence in the region, this is ‘incompatible and unacceptable’ and hence, the need to tread cautiously in relating with the military junta. Third, and true again, France and her European partners do not want Russia to replace their elite European Takuba Force in Mali and the Sahel. French withdrawal cannot but create a vacuum which can only be taken advantage of by any other power.

Even though French anti-terrorism efforts have not meaningfully achieved their objectives in the Sahel, the Malians think that France only wants to remain in the region to control it. As explained by Ousmane Kalilou Maiga, a Malian political activist, ‘Malians are not against France or the French people, we are against France’s policy regarding Mali and in the Sahel.’

Consequently, ECOWAS policy on Mali must always reckon with the conflicting positions of France and the European allies. This is necessary because France is leading the Special Forces Mission Takuba in Mali, and because if France decides to withdraw her troops totally from Mali and the Sahel, other partners are most likely to follow suit. Sweden has already indicated withdrawal of her troops. Afterall, the ECOWAS does not have the capacity to contain any jihadist insurgency in the region. International efforts have also not succeeded. Countries, like France, must therefore consider sanctions with much caution, particularly considering that Malians are calling for strained ties with the Elysée’s and Matignon government.

Rather than comply with the agreed February 28, 2022, deadline, the Goïta junta has proposed to hold the elections at the end of December 2025 which the ECOWAS found ‘totally unacceptable.’ Consequently, the ECOWAS is angered and has opted to further sanction Mali: recalling ECOWAS ambassadors accredited to Mali for consultations, closure of land and air borders with Mali, suspension of all commercial and financial transaction between the ECOWAS countries and Mali with the exception of food and medical supplies, attachment of Malian assets in ECOWAS Central Banks, freeze of assets of Mali and State Enterprises and Parastatals in Commercial Banks, and suspension of Mali from all financial assistance and transactions with all financial institutions, especially from the EBID (ECOWAS Bank for Investment and Development or Banque d’Investissement et de Développement de la CEDEAO) and BOAD (Banque Ouest Africaine du Développement; or West African Development Bank, established by treaty on 14 November 1973 and comprising eight Lusophone and Francophone countries). The ultimate objective of the sanctions is ‘to facilitate the process of a return to constitutional order in Mali which is necessary for peace, stability and growth. By excluding essential basic goods and services, the sanctions have been designed to avoid impact on the population.’

As good and objective as these sanctions may be, there is nothing to suggest that they will have any meaningful impact on the government and people of Mali, especially when they are analysed against the background of regional environmental conditionings of political governance. Besides, the sanctions only have the potential to provoke the withdrawal of Mali’s membership of the ECOWAS, as well as discourage AU’s efforts at regional integration in Africa. By so doing, Mali may become the second country, after Mauritania’s withdrawal in 2000. Mauritania’s Prime Minister, Cheikel Afia Ould Mohammed Khouna announced the notice of withdrawal on Sunday December 26, 1999, because of the ‘latest decisions of the Community’ without explaining what the latest decisions were. Today, the Malian environment and current political thinking in the country may not be different from that of Mauritania in 1999 which prompted the required withdrawal notice of one year. In fact, the interests of the ECOWAS are not consistent with the long-term interests of Mali and France Can the ECOWAS deal with regional terrorism? When will the ECOWAS and the AU accept to seek a better understanding of the Malian problem? ECOWAS sanctions may prompt Maliexit. Mali can find an alternative future in a Maghrebin sub-region even if it is geo-politically located in the West African region. ECOWAS should make haste slowly with its sanction.

This is necessary because Mali has generally been supportive of regional integration while Mauritania was opposed to the ECOWAS-proposed single currency in the subregion then. Mali agitated for a West African Federation, but Mauritania wanted to maintain its own national currency, ouguiya, which was considered a pillar of national sovereignty. Mali’s contemplation of a possible withdrawal from the ECOWAS should not be taken with kid gloves as it has the potential of working against integration regionally and continentally. Maliexit must be prevented, and regional integration efforts must be simultaneously sustained.