‘The revolution of a gifted people which we have seen unfolding in our day may succeed or miscarry; it may be filled with misery and atrocities to the point that a sensible man, were he boldly to hope to execute it successfully the second time, would never resolve to make the experiment at such cost – this revolution, I say, nonetheless finds in the hearts of all spectators (who are not engaged in the game themselves) a wishful participation which borders on enthusiasm, the very expression of which is fraught with danger; this sympathy, therefore, can have no other cause than a moral disposition in the human race.’Footnote 1
Immanuel Kant
1. Introduction
The Arab Spring and the recent upsurge in revolutions that topple authoritarian regimes has generated a spirited debate concerning the link between revolutions and democracy including the question of legitimacy of popular revolutionary action targeting authoritarian regimes.Footnote 2 In the African context, the Arab Spring saw several North African countries stirred by an unprecedented wave of popular uprisings which ultimately led to the toppling of authoritarian regimes in Tunisia, Egypt, and Libya. The spillover effects of the uprisings were also felt in parts of Sub-Saharan Africa.Footnote 3
No doubt the Arab Spring came as a surprise both to the affected countries as well as to outside actors and observers. And the African Union is no exception. The nature and scale of the events which took place in its Northern member states were such that the regional organization was not prepared to deal with the events in any coherent or principled manner. The Egyptian revolution had already yielded the demise of president Hosni Mubarak when the Peace and Security Council (‘PSC’) of the AU issued its first communiqué on Egypt expressing support to the ‘legitimate aspirations of the Egyptian people for democracy’.Footnote 4 In the context of the Libyan crisis, the PSC issued a communiqué condemning ‘the indiscriminate and excessive use of force and lethal weapons against peaceful protesters’, while, at the same time, highlighting ‘the need to preserve the territorial integrity and unity of [Libya]’.Footnote 5
Further, the PSC adopted, in the context of mounting international pressure to rein in the humanitarian crisis in Libya, a communiqué expressing ‘its rejection of any foreign military intervention, whatever its form’.Footnote 6 Nevertheless, the UN Security Council Resolution No. 1973 which authorized the intervention was adopted a week later with all of the then non-permanent African members of the UN Security Council (South Africa, Nigeria, and Gabon) voting in favour of the resolution.Footnote 7 The press release issued by the Security Council pertaining to the adoption of Resolution No. 1973 clearly suggested the existence of AU level support for the resolution.Footnote 8 However, the regional organization remained wary of NATO's heavy-handed approach to the situation favouring its own roadmap which prescribed a negotiated solution to the crisis.Footnote 9 While some commentators criticized the organization's slow and inconsistent approach to the North African uprisings, others wondered if its statements supporting ‘the aspirations of the people’ were compatible with the organization's normative instruments proscribing unconstitutional changes of government.Footnote 10
The 2013 popular protests that ousted Mohamed Morsi – Egypt's first democratically elected president – come as the latest twist in the increasingly unpredictable revolutionary drama that continues to unfold in Egypt. Compared to the 2011 revolution which ended Mubarak's rule, the June 2013 revolution can be said to constitute a textbook example of a military coup for which reason the AU swiftly moved to suspend Egypt from the regional organization.Footnote 11 However, supporters of the coup have attempted to place the event within the ambit of ‘democratic revolution’ citing as a justification Morsi's authoritarian rule and the mass protests held calling for his ouster.Footnote 12 This raises serious questions as to the reach and limits of using popular protests as a justification for regime change.
These revolutions may be said to enjoy legality under the traditional effectiveness doctrine of international law on the basis of which all successful revolutions can be considered legal.Footnote 13 However, the traditional approach of international law did not satisfy enthusiastic supporters of the revolutions. In particular, proponents of democratic revolution theory have sought to establish legality of the revolutions on a more elevated normative ground using the lofty ideals of human rights and democratic governance and ultimately suggesting the existence of a positive right of democratic revolution under international law.Footnote 14
This article examines the question of the legality of democratic revolution under traditional and emerging norms of international law and investigates whether and to what extent the emerging norms represent a shift from the effectiveness doctrine. After the introduction herein, Section 2 attempts to offer a tentative definition of the concept of democratic revolution. Sections 3 and 4 respectively analyse the research question in light of traditional rules of international law and emerging norms of democratic governance. Section 5 systematically analyses the question in light of a set of three interrelated normative principles that can be extracted from the overall AU normative framework, namely (i) the principle of prohibition of unconstitutional changes of government, (ii) the principle of democracy and human rights, and (iii) the principle of responsibility to protect.
Following a thorough evaluation of democratic revolution theory in light of traditional and emerging norms of international law and regional standards, the article argues that the existing (emerging) norms do not necessarily provide any distinct normative justifications for revolutions that oust authoritarian governments. While the analysis recognizes emerging norms that represent a move away from the effectiveness doctrine, it is argued that the pro-revolutionary implications of the norms are not as obvious as their importance as an (anti-revolutionary) injunction against the forcible ouster of democratically elected governments. The article concludes by highlighting the importance of democratic elections and the protection accorded to democratically elected governments under the emerging norms.
2. The concept of ‘democratic revolution’: towards a tentative definition
Alexis de Tocqueville first employed the term ‘democratic revolution’ to mark the gradual democratizing effect of the historic revolutionary events that were taking place in the Western world.Footnote 15 Further, Tocqueville praised America for achieving democracy ‘without having to endure a democratic revolution’.Footnote 16 However, it was Robert R. Palmer who would more fully develop the concept of democratic revolution in his work outlining the contributions of the American and French revolutions to Western democracy.Footnote 17 Going beyond the Atlantic, Mark Thomson applies the concept of democratic revolution in reference to 15 modern revolutions which took place in Asia and Eastern Europe such as the 1986 revolution of the Philippines (‘People Power’) and the 1989 Velvet Revolution of Czechoslovakia.Footnote 18
On the other hand, the subject of revolution has been an inconvenient fit for legal theory. The dominant perspective among legal scholars has been to view revolution as a fait accompli, a political question that does not lend itself to legal analysis.Footnote 19 In Pure Theory of Law, Hans Kelsen argues that revolution represents an ‘important limitation’ to his ‘principle of legitimacy’ since it has the effect of changing a legal order outside the way anticipated by that legal order.Footnote 20 However, Kelsen observes that a revolution becomes validated by the sheer reality of its success and effectiveness, hence changing the basic norm (Grundnorm) of the legal order.Footnote 21
Rejecting the effectiveness theory, some legal scholars have attempted to evaluate revolutions based on more noble grounds than their mere success or lack thereof. In an article curiously titled ‘A Legal Theory of Revolutions’, Ali Khan sought to articulate a theory that could help ‘identify criteria which will verify the legitimacy of a revolution’.Footnote 22 After denouncing ‘traditional’ scholarly positions considering revolutions as ‘injusticiable political questions’, the author argues that ‘[n]ot all revolutions are bad’ and proposes criteria that can be used to determine the legitimacy of revolutions.Footnote 23 The gist of what the author names ‘social approval theory’ is that a revolution is legitimate if the revolutionary regime institutes democratic rule and governs by rules acceptable to the community.Footnote 24
In a similar vein, Richard Albert has attempted to articulate ‘structural principles’ that can help distinguish virtuous revolutions from vicious ones and democratic revolutions from undemocratic ones.Footnote 25 He defines a ‘democratic revolution’ as a revolution that employs ‘non-constitutional means’ to ‘transform the state’ and which is accepted as legitimate by the citizenry.Footnote 26 Based on this definition, he considers the American and English revolutions to be democratic revolutions while the Russian and Iranian revolutions are considered undemocratic. The reasoning goes that the former contributed to the expansion of freedom and liberty while the latter led to tyranny, disappointing anticipations of liberty.Footnote 27 In assessing the question of the legitimacy of revolutions, Albert argues against the effectiveness theory of international law stating that the legitimacy of a coup d’etat should not be based on its success or lack thereof.Footnote 28 Further, he argues that coups are to be automatically excluded from the ambit of democratic revolution. Such a puritanical understanding of revolution leads him to condemn the recent revolutions of Tunisia, Egypt, and Libya as undemocratic coups.Footnote 29
In an influential article titled ‘The Democratic Coup D’Etat’, Ozan Varol convincingly takes issue with Albert's ‘anti-democratic model’ of coups by analysing cases in which military coups paved the way towards democracy.Footnote 30 Varol defines ‘democratic coup’ as comprising the following attributes:
. . . the military coup is staged against an authoritarian or totalitarian regime; the military responds to popular opposition against that regime; the authoritarian or totalitarian leader refuses to step down in response to the popular opposition; coup is staged by a military that is highly respected within the nation, ordinarily because of mandatory conscription; the military executes the coup to overthrow the authoritarian or totalitarian regime; the military facilitates free and fair elections within a short span of time; and the coup ends with the transfer of power to democratically elected leaders.Footnote 31
However, Varol's concept of ‘democratic coup’ is also restrictive to the extent that it is limited to the question of justifiability of revolutionary changes that involve the military. There is no reason to limit the scope of potentially justifiable revolutionary changes to coups or those cases which involve the military. It is not uncommon for the military to play a counter-revolutionary role often backing the authoritarian regime in power, the Libyan army under Gaddafi being a case in point. In those cases, the necessary force to overthrow the government may come in other forms such as continued uprisings that challenge the regime's capacity to govern (hence leading to government resignation), the involvement of armed dissident groups or, in exceptional cases, intervention by other states.Footnote 32
While the above-discussed theories are obviously related to the question of the legality of revolutions under international law, it can be observed that the theories dwell on the more complex question of the legitimacy of revolutions. It is for this reason that the theories grapple with a whole range of complex socio-legal and political questions including the assessment of the democratic quality of the post-revolutionary transitional process. However, the authors seem to commit the mistake of conflating the question of legitimacy with that of the legality of revolutions under international law.
The conceptual distinction between legitimacy and legality in the context of revolutions implies that it is theoretically possible to speak of ‘legal but illegitimate’ revolutions in much the same way as there can be ‘illegal but legitimate’ revolutions.Footnote 33 Understanding the distinction between legitimacy and legality will relieve us from the herculean task of providing a comprehensive definition of democratic revolution.
Mark Thomson provides a simple and attractive definition which can be adopted for the purpose of our study. He defines democratic revolutions as ‘spontaneous popular uprisings – peaceful, urban-based, and cross-class in composition – which topple unyielding dictators and begin a transition process which leads to the consolidation of democracy’.Footnote 34 However, Thompson helpfully observes that no real-life situation perfectly fits into the ideal type of the definition and advises the use of the language of ‘democratic revolutionary tendencies’ for the sake of precision.Footnote 35
Based on the above criteria, we can be satisfied that the popular revolutions of Tunisia, Egypt, and Libya exhibit the required ‘democratic revolutionary tendencies’. This is reasonable since the purpose of the article is not so much to determine the democratic legitimacy of the revolutions as to test their legality under international law and regional normative instruments. No doubt that these revolutions enjoy legality under the traditional effectiveness doctrine of international law on the basis of which all successful revolutions can be considered legal. However, we have observed that supporters of the revolutions have sought to establish the legality of the revolutions on a more elevated ground, using the lofty ideals of human rights and democratic governance, and ultimately suggesting the existence of a positive right of democratic revolution under international law.Footnote 36 Therefore, we need to examine whether the recent North African revolutions (Arab Spring) could be said to enjoy a unique normative support under emerging international and regional standards owing to their general democratic characters. This will be accomplished after exploring the more general question of the legality of democratic revolution under international law.
3. The legality of democratic revolution under international law
The preamble to the Universal Declaration of Human Rights (Universal Declaration) employs a curious language describing the lack of protection of human rights as a circumstance which might justify resort to rebellion. The third preambular paragraph of the Universal Declaration reads: ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’.Footnote 37 The inclusion of the rather rhetorical language of revolt in the preamble of the Universal Declaration had prompted some authors to uncritically adopt a position holding that the right to revolution is recognized under international law. For instance, writing in 1983, Jordan J. Paust claimed, ‘[t]oday, the right of revolution is an important international precept and a part of available strategies for the assurance both of the authority of the people as the lawful basis of any government and of the process of national self-determination’.Footnote 38 His conclusion is based on a generous reading of the reference to revolution in the preamble of the Universal Declaration as well as on principles related to the right to participate in government and the right to self-determination.Footnote 39 While central to his argument is the rule under paragraph 3 of Article 21 (Universal Declaration) which states that ‘[t]he will of the people shall be the basis of the authority of government’, his argument fails to consider the implications of the second part of the same paragraph which states that ‘this will shall be expressed in. . . elections’.
Further, it is questionable if the right to revolution can be safely derived from the concept of the right to self-determination. The principle of self-determination originally had the purpose of preserving national sovereignty against the external threats of colonial rule or alien domination.Footnote 40 The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples invoked the rights of all peoples to self-determination as a principle necessitating the decolonization of non-self-governing territories, thereby setting in motion a robust decolonization process.Footnote 41 Although the declaration and subsequent UN instruments framed the right as belonging to ‘all peoples’,Footnote 42 the application of the principle was understood to be limited to the colonial context. This was evident in the 1970 Declaration on Principles of International Law Concerning Friendly Relations which gave recognition to the principle with a proviso that the principle does not authorize ‘action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States’.Footnote 43
The use of the principle in the colonial context goes to the extent of justifying the use of force by people under colonial and alien subjugation. To this end, the United Nations has adopted numerous resolutions recognizing the right of people under colonial and alien subjugation to liberate themselves through any means including armed struggle.Footnote 44 Similarly, the African Charter on Human and Peoples’ Rights (African Charter) includes a provision which confers on colonized or oppressed people the right to resort to ‘any means recognized by the international community’ and obliges member states to assist oppressed peoples in their liberation struggle.Footnote 45 However, these provisions are concerned with the specific case of resistance to colonial rule and, as such, may not be invoked to support a right to revolution in the general sense.
Beyond the colonial context, the right to self-determination has been invoked to support the demands of sub-national groups for autonomy and self-rule within a given state. In fact, existing international norms provide significant support to the rights of minority groups for self-determination within their respective states.Footnote 46 However, the principle of self-determination is also invoked, albeit more controversially, to support separatist aspirations of sub-national groups which seek to form their own state through secession. In this connection, the prevailing position holds that international law does not recognize a positive right of secession, as such, but nor does it prohibit secession.Footnote 47 In general, minority groups will have a stronger claim to secession where they find themselves under exceptionally abusive circumstances in which they face extreme persecution in the hands of their mother state.Footnote 48 However, this position does not necessarily establish the right to revolution of the entirety of the people to use force to put an end to an authoritarian rule.
The traditional position of international law concerning the legitimacy of revolutionary change is aptly conveyed in the famous decision of the Tinoco case involving Costa Rica and Great Britain.Footnote 49 The controversy concerns Costa Rica's repudiation of the financial undertakings of the former Tinoco government on the ground that the revolutionary regime assumed power in violation of the then existing constitution. Commenting on the responsibility of Costa Rica for the actions of the Tinoco regime, William Howard Taft, the sole arbitrator of the case, held as follows:
To hold that a government which establishes itself and maintains a peaceful administration, with the acquiescence of the people for a substantial period of time, does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. This cannot be, and is not, true.Footnote 50
Therefore, it can be observed that the traditional approach of international law to government recognition endorses the effectiveness theory to which we alluded in the above section. According to this approach, a government shall be recognized as long as it exercises ‘effective control’ over the territory it purports to govern.Footnote 51 To be sure, this approach is indifferent to the means through which government power is assumed be it a military coup or other forms of revolution.Footnote 52 The Tinoco decision has been erroneously interpreted as implying recognition of the right to revolution under international law.Footnote 53 However, the more precise position would be to interpret the decision as neither establishing a positive right of revolution, nor a prohibition thereof in international law.Footnote 54 In this sense, we can detect an interesting parallel between the position of international law towards revolution and its position towards secession as discussed above.
The traditional position of international law to government legitimacy has been criticized as erroneous or not being reflective of the contemporary international law. In general, those who criticize the traditional doctrine point to emerging international and regional norms of democratic governance that allegedly represent a departure from the effectiveness theory.Footnote 55 In the following section, we shall briefly consider normative arguments based on the emerging discourse on democratic governance. Then follows a more detailed discussion of emerging democratic norms within the AU legal framework.
4. Implications of emerging norms of democratic governance
In a 1984 resolution regarding South Africa, the General Assembly specifically called for the elimination of the apartheid regime in South Africa and the installation of a democratic system, thereby urging the international community to provide assistance to the people of South Africa in their struggle against apartheid.Footnote 56 However, this resolution did not imply a general acceptance of democratic governance as an international norm. While deciding the Nicaragua case in 1986, the ICJ essentially endorsed the Tinoco theory of government legitimacy by interpreting the principle of state sovereignty as entailing complete freedom for every state in its ‘choice of a political, economic, social and cultural system’.Footnote 57 This meant that international law should not concern itself whether a state follows a liberal democratic system or illiberal political ideologies with the exception of colonial and apartheid systems. The Nicaragua paradigm of political neutrality of international law was echoed in subsequent resolutions of the General Assembly which would only give a reserved support to the principle of democracy and elections.Footnote 58
However, recent developments reflect increasing international interest in the promotion of democracy as well as the protection of democratically elected governments. The origins of this development can be traced back to the end of the Cold War and the associated ‘wave of democratization’ which facilitated the spread of liberal democratic values in diverse parts of the world since the 1990s. The post-Cold War international engagement in democracy has been expressed in various forms such as the promotion of democratic values through ‘classic diplomacy’, foreign aid to fund elections and democratic institutions, conditionalities and sanctions to promote transition to democracy (particularly in those cases democratically elected governments are illegally overthrown) as well as the launching of military interventions.Footnote 59 The United Nations and other international organizations have been at the forefront of efforts at democracy promotion as well as the protection of democracies.Footnote 60
Of particular importance was the 1994 Security Council Resolution adopted in reaction against the 1991 military coup in Haiti in which the Council explicitly authorized military intervention to restore to office the democratically elected government of Jean-Bertrand Aristide.Footnote 61 Given the fact that the rogue government was exercising effective control of the state at the time, the Haiti case represents a clear exception to the effectiveness doctrine of international law.Footnote 62 Similarly, the Security Council condemned the 1997 coup in Sierra Leone which deposed the democratically elected government of Ahmed Tejan Kabbah and endorsed the military intervention by the Economic Community of West African States (ECOWAS) which was made in order to reinstall the government.Footnote 63 Further, in the context of the 2010 Ivorian election crisis which resulted from the refusal of the incumbent president Laurent Gbagbo to relinquish power after losing the election, the Council adopted the exceptional measure of authorizing military intervention in support of the winning opposition candidate Alassane Ouattara who has not yet assumed office.Footnote 64
Observing the post-Cold War global interest in democracy, scholars have attempted to establish the case for the recognition of the right to democracy (‘democratic entitlement’) under international law.Footnote 65 Proponents of the democratic entitlement school advocate changes to traditional rules of international law with a view to reflecting democratic values and standards. In relation to recognition of governments, proponents consider democracy to be a ‘prominent yardstick’ with which to assess the legitimacy of governments.Footnote 66 In particular, the forceful ouster of democratically elected governments is rejected by proponents of the school as an impermissible assault on democracy. In this regard, leading proponents of the school have gone to the extent of supporting external military interventions to depose usurper regimes which overthrow elected governments.Footnote 67
Similarly, the democratic entitlement theory has been used to provide support to the toppling of regimes which commit serious atrocities against their populations. For instance, Michael Reisman contends that regime change (i.e. through foreign intervention) can be appropriate in ‘the most egregious instances of widespread human rights violations’.Footnote 68 However, the use of regime change as a means of protecting civilian populations remains a controversial issue. The 2011 NATO intervention in Libya was heavily criticized precisely because of the toppling of the Gaddafi regime which was considered by some to be unnecessary for the purpose of protection of civilians.Footnote 69 On the other hand, while regime change is held to be generally incompatible with the emerging norm on the responsibility to protect, it looks like the doctrine does not totally rule out the possibility of regime change if absolutely necessary for the protection of civilians.Footnote 70 In the context of the ongoing Syrian crisis, those who are in favour of a broader mandate of humanitarian intervention have called for the departure of the Assad regime as a necessary step for the resolution of the crisis.Footnote 71 Those who are opposed to regime change envision a much more limited role for the international community to play in resolving the crisis.
At any rate, the plausibility of regime change particularly targeting usurper regimes which overthrow elected governments or those which are engaged in serious human rights violations provides little justification for ‘democratic revolution’ aimed at ousting an authoritarian regime merely on the ground of its authoritarian or totalitarian nature. Although it is possible to justify the latter type of revolution (i.e. democratic revolution) based on the general permissibility of successful revolution under traditional international law, this does not imply the existence of a positive right of democratic revolution under international law.
On the other hand, there is a view that emerging international norms have a prohibitive effect against democratic revolution. For instance, Kristi Samuels claims that the existing Security Council policy against recourse to violence to resolve political disputes implies that ‘recourse to force. . . to overthrow a non-oppressive, non-democratic regime is prohibited’.Footnote 72 This can be contrasted with the alleged existence of a ‘high level of consistency’ when it comes to the Council's rejection of political violence against elected governments which, at times, has been expressed through the authorization or implicit approval of military interventions to depose usurper regimes.Footnote 73 Therefore, it can be held that the pro-revolutionary implications of the principle of democratic governance are not as obvious as the importance of the principle as an (anti-revolutionary) injunction against the forcible ouster of democratically elected governments.
5. The african union and democratic governance
The OAU/AU policy towards democratic governance in Africa had undergone a dramatic evolution over the years. The main purposes for the establishment of the OAU were to defend the sovereignty of African states and eradicate all forms of colonialism as well as to promote the unity and solidarity of African states.Footnote 74 The organization's preoccupation with the principle of non-interference in the internal affairs of member states initially meant that questions of democracy were to be considered essentially internal problems.Footnote 75 The manner of ascension to political power was not generally relevant for regime recognition by the OAU.Footnote 76 However, the organization eventually started to make a remarkable shift of policy which culminated in the adoption of the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government (Lomé Declaration).Footnote 77
The establishment of the AU signifies a resolve on the part of African states to accord greater significance to principles of human rights and democratic governance. The Constitutive Act of the AU (Constitutive Act) limited the scope of the principle of non-interference by, inter alia, permitting the organization to intervene in member states in cases of war crimes, genocide, and crimes against humanity.Footnote 78 Among the objectives and principles of the organization are the ideals of democracy, good governance, rule of law, and human rights. Further, the Constitutive Act provides for the rejection of unconstitutional changes of governments and the suspension of governments which come to power through unconstitutional means.Footnote 79 The premium placed on democratic governance in the constitutive act and a network of other regional instruments which deal with various aspects of democratic governance has been held to constitute evidence of an African recognition of the right to democratic governance.Footnote 80
The Lomé Declaration has so far occupied a distinct status as the AU's main normative instrument in relation to the promotion of democratic governance.Footnote 81 This is bound to change given the recent coming into force of the African Charter on Democracy, Elections and Governance (African Democracy Charter), a binding instrument which is designed to serve as a comprehensive framework for the promotion of constitutional rule and democracy in Africa.Footnote 82 A sound analysis of the question of the legitimacy of ‘democratic revolution’ under the AU normative standards requires a comprehensive assessment of the implications of the various principles and standards recognized within the AU legal framework. In what follows, we shall systematically analyse the question in light of a set of three interrelated normative principles that can be extracted from the overall AU normative framework. These are: (i) the principle of prohibition of unconstitutional changes of government, (ii) the principle of democracy and human rights, and (iii) the principle of responsibility to protect.
5.1. The principle of prohibition of unconstitutional changes of government
Article 30 of the Constitutive Act specifically provides that governments that seize power through unconstitutional means be suspended from participation in the activities of the Union. This comes on top of a range of other sanctions stipulated under the Lomé Declaration and the African Democracy Charter. It is also worth mentioning that the norm is backed by the African Commission on Human and Peoples Rights which unequivocally stated in two important cases that unconstitutional changes of government violate the rights to free expression, assembly, and participation in government, as well as the right of peoples to self-determination.Footnote 83
In the event of an unconstitutional seizure of government power, the Lomé Declaration authorizes the AU to take a range of measures to safeguard constitutional rule. These include the condemnation of unconstitutional changes accompanied by a call on perpetrators to effect a speedy return to constitutional order within six months, suspension of the government concerned from participation in organs of the Union pursuant to the Constitutive Act, as well as a range of targeted sanctions in case of failure to restore constitutional order within the six month period, including visa denials, restrictions of government-to-government contacts, and trade restrictions.Footnote 84 Additional measures envisaged under the African Democracy Charter include prohibition of perpetrators from taking part in elections held to restore constitutional order, the trial of perpetrators before the competent court of the Union, and imposition of sanctions on any member state that has instigated or supported unconstitutional change of government.Footnote 85
The importance of the norm against unconstitutional changes of government has been reflected in the seriousness of the AU and sub-regional organizations in enforcing the norm in practice.Footnote 86 Based on the Lomé Declaration, the AU has condemned and/or sanctioned cases of unconstitutional changes of government in the Central African Republic (2003), São Tomé and Príncipe (2003), Guinea-Bissau (2003), Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), Niger (2010), Cote d’Ivoire (2010), Mali (2012), G. Bissau (2012), and Egypt (2013).Footnote 87 However, the organization has been criticized when it comes to its practice of turning a blind eye on incumbent governments which cling to power by refusing to accept election defeats.Footnote 88
Although the scope of the regional norm on UCGs has been broadened under successive normative reforms, a close reading of the relevant standards reveals that the issue of democratic revolution does not squarely fit into existing AU standards on unconstitutional changes. The more evolved version of the principle of prohibition of unconstitutional changes of government as enunciated under the recently ratified African Democracy Charter covers five different cases of unconstitutional changes of government. These are:
1. A military coup d’etat against a democratically elected government;
2. An intervention by mercenaries to replace a democratically elected government;
3. A replacement of a democratically elected government by armed dissidents or rebels;
4. A refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or
5. An amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.Footnote 89
The first four cases of unconstitutional changes of government are also recognized under the Lomé Declaration while the fifth case of impermissible amendment or revision of constitutions is an innovation of the African Democracy Charter. The first three provisions may be considered to be pro-incumbent provisions which address cases of ‘unconstitutional accession to power’ to protect existing governments from the threat of being toppled by dissident groups.Footnote 90 On the other hand, Articles 23(4) and 23(5) address the problem of ‘unconstitutional preservation of power’ by incumbent governments.Footnote 91 The former has the objective of challenging attempts by incumbent governments to cling to power after losing elections while the latter can be used against those governments attempting to prolong their stay in power through the introduction of changes in the legal order such as longer term limits or the banning (prolonging) of elections.Footnote 92
The first three cases deal with traditional cases of overthrowing of governments through military coups, the intervention of mercenaries, and armed dissident or rebel groups. As such, they do not directly address the question of legitimacy of regime changes primarily driven by mass protests. On top of that, it should be underscored that the provisions specifically deal with changes affecting ‘democratically elected government’, and not that of unelected regimes. Therefore, the main purpose of the provisions seems to be the protection of democratic regimes from the threat of forcible removal by the military or other armed groups. Although the AU seems to adopt a blanket policy against all coups in practice,Footnote 93, a literal reading of the relevant provisions reveals that the ouster of unelected regimes through unconventional or even violent means such as military coups or armed rebellion may not be considered an unconstitutional change of government in the technical sense.
In this sense, we may be able to easily justify the uprising in Libya and hold that it does not constitute an unconstitutional change of government given the absence of elections from the Libyan political scene prior to the uprising. However, justifying the uprisings against Tunisia's Ben Ali or Egypt's Mubarak is more controversial since both presidents have been conducting elections to justify their rule. Thus, the justification for the ouster of the rulers mainly emanates from questioning the credibility of the elections conducted by the respective rulers.Footnote 94 At any rate, the existence or absence of democracy is an important factor in determining the legitimacy of regime changes through mass protests.
The foregoing analysis demonstrates that, strictly speaking, there are no rules explicitly prohibiting revolutions targeting authoritarian governments. This gives us the impression that the permissibility of democratic revolution will be subject to the default rules of traditional international law which means that such a revolution will be permissible as long as it is successful. Nevertheless, the mere absence of an explicit rule against democratic revolution does not establish the case for the existence of a positive right of democratic revolution. The AU norm on the prohibition of unconstitutional changes of governments is to be understood in the negative sense as a norm designed to challenge the forcible removal of democratically elected governments and not in the positive sense of justifying revolutions targeting authoritarian governments.
Further, making a distinction between democratic and authoritarian governments is difficult in practice since most governments tend to legitimize their rule by conducting some form of election. However, it is to be understood that there is more to democracy as a substantive concept other than the holding of periodic elections.Footnote 95 By confining what constitutes an unconstitutional change of government to those actions targeting democratically elected governments, the AU instruments seem to adopt a proceduralist conception of democracy centred on elections. It looks as though emphasis is placed on democracy of origin (i.e. elections) rather than democracy of exercise.Footnote 96 No doubt the instruments contain provisions that require governments to ensure human rights and the rule of lawFootnote 97, but the narrow scope of the sanctions regime implies that there are no effective mechanisms to sanction government failure to observe democratic norms short of abandoning elections or failure to respect the outcomes of elections. The emphasis on elections is understandable given the centrality of elections to democracyFootnote 98 and the relative difficulty of monitoring other components of democratic governance such as observance of human rights. Further, it can be considered reasonable that serious sanctions related to unconstitutional changes of government are reserved for the most extreme cases of failure to observe democratic norms. However, more work will be expected from the AU in relation to strengthening the existing institutional mechanisms for monitoring the observance of human rights in Africa which are widely considered to be ineffective.Footnote 99
Now the question becomes that of who is to judge in cases where the results of elections are contested? In spite of its election monitoring mandate, the AU generally seems to adopt a deferential approach, leaving the determination of election outcomes to domestic electoral bodies and other authorized institutions such as national courts. This is evident in the organization's apparent unwillingness or inability to challenge incumbent regimes which seek to extend tenure through election fraud.Footnote 100 An important exception was the determined move made by the AU, in concert with international actors, to stop Laurent Gbagbo's attempt to extend tenure through election fraud during the 2010–11 Ivorian election crisis.Footnote 101 This was facilitated by the scandalous nature of the fraud as well as the severe international backlash caused as a result. It is important that the AU reinvigorates its election monitoring mandate since few cases of election disputes present themselves as clearly as in the case of the Ivorian election crisis.
5.2. The principle of democracy and human rights
The foregoing discussion reveals the limitations of a responsive approach to the problem of unconstitutional changes of government. Such an approach does not help us address the underlying problem of democratic deficit which lies at the root of major political conflicts in Africa whether the problem reveals itself in the form of coups or popular uprisings. The relevant normative standards in fact attempt to place the prohibition of unconstitutional changes of government within the broader framework of democracy although the monitoring of the practical implementation of the principles of democratic governance remains ineffective.
What we call the principle of democracy and human rights relates to a set of norms and principles within the AU normative framework that require the entrenchment of democratic norms as well as principles of rule of law and human rights. In contrast to the responsive approach, focus on the principle of democracy serves as a preventive tool suited to address violations of standards of democracy, rule of law, and human rights which are the root causes of political conflicts including unconstitutional changes of government.
The principle of democracy is a key cross-cutting principle that animates the entirety of the AU's normative framework. The African Charter on Human and Peoples’ Rights clearly recognizes the right to participation in government ‘either directly or through freely chosen representatives’.Footnote 102 In interpreting the right to participation, the African Commission on Human and Peoples’ Rights goes beyond a dissective approach which understands the right in terms of its component units of the right to vote and the right to be elected. Interestingly, the right to participation is also understood by the Commission in the teleological sense as a principle linked with the right of the people to self-determination. Decisions of the Commission make it clear that failure to respect election outcomes or the toppling of democratically elected government constitutes a violation of the right to participation as well as the right of the people to self-determination.Footnote 103
Such a broader understanding of democratic governance is supported under several recent normative standards adopted under the auspices of the AU. The various instruments underline the centrality of democratic elections as the basis of governmental authority and require member states to regularly conduct elections which shall be free and fair.Footnote 104 To this end, the member states are required to establish impartial electoral institutions capable of ensuring the conduct of free and fair elections as well as independent national courts which can arbiter election disputes.Footnote 105 Further, the Democracy Charter prescribes that competing political parties respect the outcomes of democratic elections with a threat of sanction on incumbent regimes which refuse to accept election defeat.Footnote 106 What is more, the Charter targets the problem of perpetual incumbency in Africa by requiring member states to enable democratic change of governments from time to time as well as proscribing attempts to extend terms of office through constitutional amendment.Footnote 107 In general, the various instruments include a range of standards which obligate member states of the AU to ensure democratic governance including through respect for the rule of law and protection of human rights.
In the context of our inquiry on democratic revolution, the premium placed on elections in the various normative standards helps remind us that elections – and, alas, not revolutions – are the primary means through which the people's constitutive power (pouvoir constituant) is to be expressed. Therefore, we should not be under any illusion that popular protests will serve as a substitute for elections, however popular they are. This point cannot be emphasized enough given the prevailing tendency to romanticize popular protests simply looking at the number of people who take part in the protests. The anomaly is revealed when one looks at the ease with which opposing political factions could stage million-man marches behind their respective agenda. The 2013 military coup in Egypt clearly shows the dangers involved in such ‘streetocracy’ as it is clearly problematic when a democratically elected government is deposed under the pretext of popular protests. Thus, the AU can be commended for taking a principled approach to the coup. The failure of the UN and EU to follow suit perhaps represents a regrettable retreat from recent practice of protecting democratically elected governments.
This is not to say that mass protests represent a danger in themselves. In fact, popular protests can be seen under a human rights lens. We can clearly justify popular protests, including those calling for regime change, in light of the recognition of freedoms of expression and assembly as well as the right to participation under the AU normative framework.Footnote 108 In this sense, African states can be required to recognize peaceful popular demonstrations as long as they are peaceful and fulfil other relevant conditions prescribed under international and African human rights law. In this connection, it is desirable that the African Commission on Human and Peoples Rights issues detailed guidelines that facilitate the implementation of the rights to expression and assembly under the Charter in a manner consistent with international human rights law.
5.3. The principle of responsibility to protect (R2P)
The principle of responsibility to protect (R2P) has been gaining increasing support as a doctrine mandating coercive measures including military intervention in sovereign states with a view to preventing and responding to mass atrocities and humanitarian disasters. A groundbreaking work in outlining the elements of the principle and the criteria for military intervention was accomplished in the 2001 Report of the International Commission on Intervention and State Sovereignty (hereafter the ICISS Report).Footnote 109 By invoking the responsibility inherent in the concept of state sovereignty, the ICISS Report provides that the state shall assume the primary responsibility to protect its people.Footnote 110 The ‘international responsibility to protect’ obtains where a state is unwilling or unable to protect populations under its jurisdiction.Footnote 111
While prioritizing the responsibility of prevention and emphasizing the responsibility of rebuilding, the ICISS Report recognizes the responsibility of the international community to react to mass atrocities by adopting ‘appropriate measures’ which, in exceptional circumstances, might legitimately include military intervention.Footnote 112 Exceptional circumstances that provide ‘just cause’ for military intervention include threats of large-scale loss of life and large-scale ethnic cleansing.Footnote 113 Although the United Nations Security Council is designated as the most appropriate body to authorize military intervention, the General Assembly and regional or sub-regional organizations are granted authority in case of failure to act on the part of the Security Council.Footnote 114
In the context of the Libyan crisis, the UNSC Resolution No. 1973 clearly acknowledged the ‘responsibility to protect’ by recognizing ‘the responsibility of the Libyan authorities to protect the Libyan population’ and authorizing ‘all necessary measures to protect civilians’.Footnote 115 Nevertheless, the NATO use of the mandate to overthrow the Gaddafi regime had raised questions concerning the range of measures that may be authorized under the rubric of the responsibility to protect.Footnote 116 To be sure, NATO's broad interpretation of the mandate did not find much support within AU circles.Footnote 117
The principle of responsibility to protect no doubt enjoys a unique position in the African context owing to its explicit incorporation under Article 4(h) of the Constitutive Act of the African Union. However, AU's reluctance to fully embrace the NATO intervention indicates the continued significance of the principle of non-interference within the regional organization. On the other hand, lack of AU enthusiasm for the military intervention can be explained in terms of the organization's policy of favouring African solutions to African problems.Footnote 118 This approach is in fact evident in the way the principle of responsibility to protect is articulated under Article 4(h) according to which the mandate to intervene belongs only to the regional organization. Yet, the AU's failure to consider the use of the provision in the Libyan situation casts doubts on the seriousness of its commitment to the principle. This is all the more remarkable given the AU's own admission of the regime's ‘indiscriminate and excessive use of force and lethal weapons against peaceful protesters’.Footnote 119
In relation to our inquiry on the legitimacy of ‘democratic revolution’, it will be important to determine to what extent the concept of responsibility to protect lends support to the toppling of repressive governments. The prevailing opinion holds that regime change is not necessary for the protection of civilians, hence should not be part of R2P as a matter of principle.Footnote 120 In this regard, the ICISS Report clearly provides that ‘[o]verthrow of regimes is not. . . a legitimate objective, although disabling that regime's capacity to harm its own people may be essential to discharging the mandate of protection’.Footnote 121 Nevertheless, the conclusion of important R2P missions in regime change is raising fears that the principle might be used to promote political goals that are not warranted by the imperatives of protecting civilians.Footnote 122
Even if we include regime change within the ambit of the R2P principle, we should be reminded that the application of the principle is limited to exceptional cases involving grave and massive violations of human rights. With regard to Article 4(h), such grave circumstances specifically include war crimes, genocide, and crimes against humanity. This implies that the principle may not be used to justify intervention or other interfering measures under the mere objective of putting an end to authoritarian or totalitarian rule. Needless to say, the relevance of the principle in the context of ‘democratic revolution’ is limited to those revolutions targeting authoritarian regimes especially implicated by one or more of the above mentioned grave circumstances.
6. Conclusion
The emerging recognition of democratic governance as an international norm coupled with the recent upsurge in revolutions driven by popular democratic demands has provided high currency to proposals that seek to re-evaluate the effectiveness doctrine recognized under traditional international law. In the context of the Arab Spring, proponents of the theory of democratic revolution have sought to establish the legality of revolutions on a more elevated ground using the lofty ideals of human rights and democratic governance and ultimately suggesting the existence of a positive right of democratic revolution under international law.
Our analysis of the question of legality of democratic revolution in light of international and African regional standards reveals that the existing human rights and democratic norms do not necessarily provide any distinct normative justifications for democratic revolutions beyond the legality that could be possibly accorded to the revolutions based on traditional norms of international law. First, the rhetoric of the right to revolution has little normative support under existing international and regional human rights laws. Secondly, the pro-revolutionary implications of emerging norms of democratic governance are not as obvious as the importance of the norms as an (anti-revolutionary) injunction against the forcible ouster of democratically elected governments. To be sure, the AU regional norm on the prohibition of unconstitutional changes of governments is to be understood in the negative sense as a norm designed to challenge the forcible removal of democratically elected governments and not in the positive sense of permitting revolutions targeting authoritarian governments. Further, the principle of responsibility to protect cannot be safely employed with the mere objective of putting an end to authoritarian or totalitarian rule, although the principle might have a limited application in the context of revolutions targeting authoritarian regimes especially implicated by grave circumstances which warrant the application of the principle.
In any case, it can be observed that making a distinction between democratic and authoritarian governments is difficult in practice as most governments attempt to legitimize their rule by conducting some form of election. Further, the African Union is in no position to determine the credibility of elections given its limited capacity to monitor them. Nevertheless, the premium placed on democratic elections in the various normative instruments helps remind us that elections – and, alas, not revolutions – are the primary means through which the people's constitutive power (pouvoir constituant) is to be expressed.
