The African continent is currently witnessing a turbulent resurgence of military interventions in politics, a phenomenon often described as the coup contagion. From the Sahel to Central Africa, the stability of democratic institutions is under siege. For the legal researcher and law student, this crisis is not merely a political shift but a profound challenge to the rule of law. To address this, we must look beyond political rhetoric and utilize the robust legal weaponry provided by continental and regional frameworks.
This research explores the legal strategies necessary to combat Unconstitutional Changes of Government (UCG) through the lenses of the African Union (AU), ECOWAS, and domestic constitutionalism.
The primary legal weapon against coups is the African Charter on Democracy, Elections and Governance (ACDEG, 2007). While many international instruments are aspirational, the ACDEG is a binding treaty that provides a clear Legal Definition of UCG. Under Article 23, a change of government is unconstitutional if it involves a putsch, a coup d’état, intervention by mercenaries, or a refusal by an incumbent to relinquish power after a lost election.
The challenge in Africa is not a lack of laws, but a lack of domestication. States must move beyond mere ratification. Legal advocates should push for the direct inclusion of ACDEG principles into national constitutions. This creates a double-lock system, ensuring that a coup is treated as a crime under both international law and domestic penal codes simultaneously.
The AU and Regional Economic Communities (RECs), such as ECOWAS, operate under a Zero Tolerance policy for power obtained through non-democratic means. Article 30 of the AU and Article 25 of the ACDEG mandate the immediate suspension of any Member State where a UCG has occurred.
The legal community must advocate for a shift in the nature of sanctions. General economic embargoes often punish the innocent civilian population while the elite remain insulated. Instead, we must push for targeted sanctions specifically travel bans and asset freezes against individual coup leaders and their collaborators. Furthermore, the African Court on Human and Peoples’ Rights should be utilized to monitor these sanctions, ensuring they are applied consistently and do not result in humanitarian violations.
A major legal trigger for military coups is the manipulation of constitutions by incumbents to extend their tenure often referred to as legalized coups. The law is clear under Article 23(5) of the ACDEG identifies any amendment or revision of a constitution that infringes on the principles of democratic change as a form of UCG.
To prevent the executive from lawfully overstaying, legal professionals must advocate for entrenched clauses. Taking inspiration from Article 290 of the 1992 Constitution of Ghana, term limits should be made specially entrenched, requiring high-threshold referenda for any amendment. This removes the legal loophole that often serves as a pretext for military intervention.
When a coup succeeds, the judiciary faces a crisis: do they recognize the new regime? Historically, courts relied on Hans Kelsen’s Theory of Revolutionary Legality, arguing that a successful coup destroys the old legal order and creates a new Grundnorm.
However, modern jurisprudence has evolved. In the landmark Nigerian case of Lakanmi v. Attorney-General (Western State) [1971], the court suggested that judicial recognition should be limited to the Doctrine of Necessity. Under this doctrine, courts recognize the de facto authority of a regime only to the extent necessary to prevent total anarchy, without validating the illegal seizure of power itself.
Judges must maintain the Supremacy of the Constitution. Even under a military junta, the Basic Structure of the law and fundamental human rights must remain non-derogable. The judiciary must act as the final fortress of the constitutional order, refusing to grant full de jure legitimacy to usurpers.
Domestic enforcement is the final line of defense. Using Ghana as a model, Article 3 of the 1992 Constitution provides a proactive mechanism for citizens. Article 3(4) grants every citizen the right and duty to resist any person or group attempting to overthrow the constitutional order. Furthermore, Article 3(3) stipulates that participation in a coup constitutes High Treason.
Legal education must prioritize Constitutional Literacy. When citizens understand that the law empowers them to resist and that coup participants face trial for treason with no statute of limitations, the political cost of a coup becomes prohibitive.
To move from theory to action, the following steps are recommended:
1. Monitor Compliance: Research whether your state has submitted its biennial report to the AU Commission on ACDEG implementation, as required by Article 44.
2. Public Interest Litigation: Use the courts to challenge executive acts that undermine the separation of powers before they escalate into instability.
3. Regional Reform: Advocate for the adoption of the proposed ECOWAS Supplementary Protocol on Democracy and Good Governance, which seeks a region-wide ban on third-term bids.
The defense of democracy in Africa is a legal obligation as much as it is a political one. By domesticating international charters, entrenching term limits, and empowering citizens through constitutional literacy, we can ensure that the Grundnorm of our nations remains rooted in the will of
the people, not the power of the gun.
