Assessing the Repression Of Constitutional Coups in Africa Through the Lens of the Malabo Protocol on International Crimes

Abstract

Since the turn of the 21st Century, we have been witnessing ‘constitutional coup’ in many African countries masterminded by leaders determined to cling on to power. The idea of manipulation in itself induces the harmful use of the constitutional norm. "Playing with the hands" on the social contract of a state, however, is a fairly common in all constitutional regimes. After all, it has never been claimed that a constitution should be immutable. Its adaptation is necessary for the evolution of the society it is supposed to govern. But the idea of manipulation underlies a biased use of the Constitution for the benefit of the interests of some. And when this habit, which tends to make constitutional manipulation normality in Africa and to transform the Constitution into a legal instrument of power, is undermined by popular and political insurrection, we witness gross human rights violations. While there have been great advances regarding the legal and institutional mechanisms of international criminal justice at a global level, this determination on the African continent appears as a setback for the established process, thus defeating the very purpose of the existing legislation. Even the Malabo Protocol endowing the expected African Court of Justice and Human Rights with criminal jurisdiction does not create room for investigation and prosecution of these “constitutional coups”. Indeed, neither the drafters of this Protocol nor those of such other instruments as the African Charter on Democracy, Elections and Governance were bothered by this constitutionalizing of malicious constitutional changes, thus giving the green light to maliciously intended leadership behaviours devoid of any criminal liability, as the leaders would remain in power for life. Using the example of constitutional manipulation in Rwanda and Uganda, this Article provides a critical study of the law and practice of the African Union to prove that and how the repression of unconstitutional change of government should extend to “constitutional coups” to have the whole system serve the purpose of international criminal justice and give it its full meaning on the African continent. A doctrinal research method was used where qualitative research approaches were employed to facilitate the study. The reason for adopting this method is that it improves a substantial part of the law by means of which it could achieve the broader goal of the study.