Gambia and the Crime of Unconstitutional Change of Government: The Emergence of Extra-Curricular International Crimes
Matsiko Samuel*
The Gambian Question
The African Commission on Human and Peoples’ Rights (African Commission), at its 51st Ordinary Session held from 18 April to 2 May 2012 in Banjul, The Gambia passed a resolution on the unconstitutional change of governments.(UCG)The resolution was considering and recalling its objectives and mandate under the African Charter on Human and Peoples’ Rights, the African Union Constitutive Act, The African Charter on Democracy, Elections and Governance, and the ECOWAS Protocol on Democracy and Good Governance.
The resolution went on to recall the relevant provisions of the Algiers Decision AHG/142 (XXXV) of July 1999, the Lome Declaration of July 2000 and the Protocol Relating to the Establishment of the Peace and Security Council of the African Union on the unconstitutional change of government.
Fast forward, on the 10th of December 2016, controversial Gambian leader Yahya Jammeh, who took power in a military coup in 1994, rejected the outcome of the November 2016 elections he lost to opposition leader Adama Barrow. The refusal by the incumbent to relinquish power to a democratically elected government did not only stir international criticism but also academic debate on the normative underpinnings and enforcement mechanisms of the crime of unconstitutional change of governments in international law.
It is ironic that Gambia that had hosted the passing of a resolution on the unconstitutional change of governments in 2012 and survived an attempted coup in 2014 was the very country experiencing a situation of unconstitutional change of government.
These events raise very important questions that deserve critical interrogation. Does the crime of UCG have any normative foundations in international law? Would UCG be classified as an international crime or simply a crime particular to a region? Does UCG as a crime threaten international peace and security?
UCG norm and the African peace & security architecture
A critical mapping of coups in Africa coupled with the research conducted by the African Development Bank clearly shows that there have been more than 200 coups in Africa since the post-independence era. The 2015 failed coups in Burundi and Burkina Faso clearly illustrate that coups are getting out of fashion and the refusal to relinquish power to a democratically elected government is the new boy in town.
The UCG narrative in Africa began with the mechanism proposed by the 1997 OAU Council of Ministers for the restoration of constitutional order in response to the coup d’état in Sierra Leone. This was followed by the Constitutive Act of the African Union that clearly set out the prohibition of the UCG as one of the foundational principles of the African Union.
This was followed by the July 2000 Lome Declaration on the framework for an OAU response to unconstitutional change of government and crystallised by the Protocol Establishing the AU Peace and Security Council. The UCG narrative was further expanded by the 2007 African Charter on Democracy, Elections & Governance that included a provision on the issue of retaining power unconstitutionally.
it important to note that these African union instruments prohibited UCG but did not criminalise UCG.
The Malabo protocol & Criminalisation of UCG
The protocol to the amendments to the protocol on the statute of the Africa court of Justice and Human Rights was adopted in Malabo, Equatorial Guinea on the 27th of June 2014, the Malabo protocol is an amendment to the 2008 protocol on the statute of the African court of justice and human rights that aims to extend an international criminal mandate to the African Court of Human and Peoples Rights. Among the key provisions in the protocol include the crime of unconstitutional change of government.
The crime of unconstitutional change of government in the Malabo protocol was mooted as early as 2010 in the draft amendment. The pragmatic argument for the inclusion of this crime in the amendment is that unconstitutional change of government is characteristic of Africa’s political fabric and thus necessary.
Article 28E of the Malabo protocol criminalizes unconstitutional change of government. The provision starts by stating that UCG means committing or ordering to be committed the following acts with the aim of accessing power or maintaining power. The acts include the following;
- The use of armed dissidents to replace a democratically elected government
- A putsch or coup against a democratically elected government
- An intervention by mercenaries to replace a democratically elected government
- Refusal by an incumbent to relinquish power to the winning party or candidate after a free and fair election.
Clause 2 of Article 28E goes on to provide that for purposes of this statute a democratically elected government has the same meaning as contained in AU instruments. For any aspiring international criminal law scholar the chapeau and contextual elements of UCG in Article 28E of the protocol are vague and thus problematic.
A number of problems arise with regard to what constitutes a democratically elected government within the meaning of African Union instruments? the second problem are the debates surrounding the element of intervention by mercenaries to replace a democratically elected government in the definition. (It is important to note the same protocol criminalizes mercenaries in Article 28H as a crime on its own)
Let’s take a hypothetical scenario considering the principle of double jeopardy or what international law terms as Non bis in idem. If “A” is acquitted for the crime of mercenarism under Article 28H of the Malabo protocol can “A” be convicted for similar acts of mercinarism in relation to the crime unconstitutional change of government under Article 28E? Other problems with this definition include auxiliary issues of immunities, modes of responsibility and the application of statutes of limitations.
UCG as an Extra- Curricular International Crime
My ambitious attempt to classify the crime of unconstitutional change of government as an extra-curricular international crime among colleagues in the field has been met with mixed feelings. A majority of colleagues referred me to the Greek mythology of Lcarus who attempted to fly too close to the sun with waxy wings and ended up melting in the process, whereas other colleagues did not even comprehend what I meant by an extra-curricular international crime.
The radical attempt to classify the crime of unconstitutional change of government as an extra-curricular international crime is merely a modest contribution to the progressive development of the nascent and yet underdeveloped field of international criminal law. I believe that crimes that do not exist as discrete crimes in international law but meet the scale & gravity threshold and threaten international peace ought to be categorised as extra-curricular international crimes. This is to enable experts in the field understand their customary character, history and trauvaux preparatories for those governed by any treaty regimes.The concept of an extra-curricular international crime may seem novel on the surface but it is merely a reflection of the emerging concept of extra-curricular international criminal law coined by Professor Mark Drumbl in his 2016 publication.
Professor Mark Drumbl in his paper titled extra-curricular international criminal law attempts to question instances where international criminal law may unexpectedly stray elsewhere or where regional or domestic law may stray in the realm of international criminal law. Professor Mark Drumbl goes on to discuss the jurisprudential impact of international criminal courts on domestic civil litigation in the United States with a focus on the Alien Torts Act.
Unlike Professor Mark Drumbl my approach is simple and subject to criticism and debate. My argument is that an emerging crime that does not exist as a discrete crime under international law but fulfils the scale & gravity threshold, threatens international or regional peace and security, neither falls within the ambit of the four core crimes that is genocide, crimes against humanity, war crimes & the crime aggression and lacks comprehensive enforcement mechanisms should be considered as an extra-curricular international crime for study purposes.
Conclusion
In sum, apart from the Ivory Coast scenario where the African Union classified the refusal by an incumbent to relinquish power as typical UCG situation. Gambia is a classical example of the crime of UCG. Some scholars argue that the crime of UCG has no international law basis and is neither an international crime nor a transnational crime whereas others alternatively argue that UCG does have legal basis under the law of international organizations. Personally, as we attempt to comprehend the emerging crime of UCG and develop the nascent field of international criminal law classifying UCG is an extra-curricular crime is a plausible start to address this hitherto but yet unexplored “international” crime.
* Matsiko Samuel (LLM) is a Ugandan lawyer and academic with a keen interest in international criminal justice. He is an adjunct lecturer at the Faculty of Law Uganda Christian University & Vice president of the International Law Association Uganda Branch http://www.ila-hq.org/en/branches/index.cfm/bid/1026.
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