HAWASSA UNIVERSITY

COLLEGE OF LAW AND GOVERNANCE

SCHOOL OF LAW

THE CRIMINALIZATION OF UNCONSTITUTIONAL CHANGE OF

GOVERNMENT UNDER THE AFRICAN CRIMINAL COURT: CHALLENGES
AND PROSPECTS

A THESIS SUBMITTED TO SCHOOL OF LAW, HAWASSA UNIVERSITY, IN

PARTIAL FULFILLENT OF THE REQUIREMENT FOR BACHELOR OF LAW
DEGREE.

By: Etsegenet Melkamu Lemma (0020/10)

Advisor: Kinkino Kia Legide (LLB, LLM, MSC)

May, 2022
DECLARATION
I declare this research entitled: The Criminalization of Unconstitutional Change of
Government under the African Criminal Court: Challenges and Prospects, is my original
work done under the supervision of instructor and advisor, Kinkino Kia Legide, the necessary
data`s, phrases, writings citied from each material is written down clearly. I take full
responsibility for failure to observe the conventional rules of citation.

Declared by: Etsegenet Melkamu Date ……………….. Signature

………………

Advisor: Date …………………. Signature

……………..

Examiner: Date …………………… Signature

I
ACKNOWLEDGMENT

There are lots of people I would like to thank for helping me make this paper, but first and
foremost I am grateful to advisor Kinkino Kia Legide for his tedious effort, unreserved
encouragement, professional and technical guidance he offered me during my tenure in the
study of this research paper. I really thank my advisor and from bottom of my heart and wish
you success in your walk of life.

I would like add special note of thanks to my brother Muluken Melkamu for his assistance on
everything I needed, providing me with insight discussion; it has been my privilege to be
awake and far more be an influence and mentor to me more than he probably realizes and for
his unshakable faith in all things that I do.

My sincerest thanks goes to my mother Mulunesh Haile and my father Melkamu Lemma for
allowing me to call them each day and encouraging me am also grateful for all love they
showered me with, the patience and faith they had in me means world. Also to Kebenesh
Haile for her undying love and support for everything.

Last and by no means least, I would like to thank my friends. In particular my best friends
for the past 5 years Mekiya Aman, Hermela Tsegaye, Meskerem Ayalew, Meron Fichago and
Medanit Teshale who encouraged me at a point when I was not sure whether I could actually
finish this work, for their friendship; they are more than that, without their guidance this
paper would never have come to light.

Foremost and all I thank God the Mighty for the ups and downs and mostly for blessing me
with the strength to begin and finish this paper.

II
 DEDICATION
I dedicate this research for all those who are suffering because of Africa`s endless civil war
and power struggle.

III
 ABSTRACT
The African union has approved a number of legal instruments to be implemented across the
continent. However, there are indications that the passage of these laws alone may not be
enough to solve the problem of unconstitutional change of government. As a result, the
African Union and its member states have recently reached an agreement on the
establishment of an African Criminal Court that could bring about significant change across
the continent. As a result, the court has been empowered to hear cases that have not yet been
criminalized internationally, including the crime of unconstitutional change of government.

However, it is safe to say that this regional court face many challenges in the process of
prosecuting this crime. The general objective of this thesis paper is to critically analyse the
criminalization of unconstitutional change of government under the new African criminal
court and to examine the challenges and prospects. To achieve this objective of the research
paper adopted doctrinal research method. This thesis paper primarily focused on the Malabo
Protocol, the African Charter on Democracy, Elections and Governance, the Lomé
Declaration and the Constitutive Act. Additionally, the researcher referred other regional
and international instruments, articles, books, and other legal materials that are significant
for this research.
Using this method and taking into account a number of factors, among these major
challenges and interactions that that court process; The African criminal court faces
challenges related to the international criminal court`s overlapped jurisdiction, over budget
deficit and the immunity granted to the government officials. However, this regional criminal
court has emerged with many advantages and new prospects for the continent beyond the
challenges it face.
Considering the problems identified in the paper, the researcher provided suggestions for
solutions. These recommendations are; explaining and acknowledging that unconstitutional
change of government crime will create a great deal of political instability and unrest in the
world should be the core task of the Africa Union, In order to ensure the continuity of the
court and to ensure its stability, the African Union and other parties must use all available
resources and work tirelessly for the court to stand on its own two feet.

IV
Contents
DECLARATION........................................................................................................................I

DEDICATION.........................................................................................................................III

ABSTRACT.............................................................................................................................IV

Chapter One...............................................................................................................................1

1. Introduction............................................................................................................................1

1.1 Background of the Study..................................................................................................1

1.2 Statement of Problem.......................................................................................................3

1.3 Objective of the Study......................................................................................................5

1.3.1 General Objectives.....................................................................................................5

1.3.2 Specific Objectives....................................................................................................5

1.4 Research Question............................................................................................................5

1.5 Significance of the Study..................................................................................................5

1.6 Scope of the Study............................................................................................................6

1.7 Research Methodology.....................................................................................................6

1.8 Limitation of the Study.....................................................................................................6

1.9 Organization of the Study.................................................................................................6

Chapter Two...............................................................................................................................7

The Criminalization of unconstitutional change of government under the African continental

laws and Emergence of the African Criminal Court..................................................................7

2.1 Definition of Unconstitutional Changes of Government..................................................7

2.2 History of Unconstitutional Change of Government in Africa........................................9

2.3 Criminalization of Unconstitutional Change of Government under the Continental

Laws.....................................................................................................................................11

2.3.1 INTRODUCTION...................................................................................................11

2.3.2 The Lomé Declaration of July 2000........................................................................11

2.3.3 The African Union Constitutive Act........................................................................13

2.3.4 The African Charter on Human and Peoples Right.................................................14

V
 2.3.5 The African Charter on Democracy Election and Governance...............................15

2.3.6 The Malabo Protocol...............................................................................................16

2.3.7 Emergence of the African Criminal Court...............................................................19

2.3.8 African Criminal Court and Unconstitutional Change of Government...................21

Chapter Three...........................................................................................................................25

3. Challenges and Prospects of the New Court in the Unconstitutional Change of Government
..................................................................................................................................................25

3.1 Challenges and prospects of the African Criminal Court...............................................25

3.1.1 Prospects of the Court........................................................................................25

3.1.2 Challenges of the Court...........................................................................................27

Chapter Four.............................................................................................................................31

4. Conclusion and Recommendation........................................................................................31

4.1 Conclusion......................................................................................................................31

4.2 Recommendations..........................................................................................................32

BIBILOGRAPHY....................................................................................................................34

VI
1
 Chapter One

1. Introduction

1.1 Background of the Study

A political framework can be said to be unstable when it is regularly gone up against with
circumstances, exercises or patterns of political conduct that debilitate its quiet presence.
Insecurity can be so grave as to lead to breakdown of the political framework or collapse of
the state. This sums to a frame of efficient instability, causing in unconstitutional and violent
overthrow of government. Recurring violence within the form of riots and coups and counter
coups, communal violence, religious intolerance and others are also structures of insecure
politics.1 Unconstitutional change of government beneath African Union standards alludes
not solely to upset coup d’état the sudden upheaval of government, but it moreover include
the subversion of a democracy as voiced by the will of the people through election, refusal to
resign power after losing election, an operating the supreme law the constitution, in arrange
to expand the incumbency of serving government.2 Independent African States have
experienced over 100 military coups.3 In the period before 1996, in spite of the fact that
routinely deplore, most military regimes were after an interval able to count on recognition
and reception back into the OAU and international community fold. 4 This prompted African
leaders to take action at continental level, in order to end a tradition whereby all those who
managed to seize power through brute force were recognized as legitimate rulers of a
country.5

The OAU look upon unconstitutional changes of government as showed within the practice
of coups as a matter of domestic jurisdiction of its member states and, so, not requiring the
consideration of the organisation. But, it is clear that the OAU may not turn a total blind eye
to the impacts of coups for a long time. 6 Subsequently, in the 1990`s, the OAU` position was

1
J. Shola Omotola, Unconstitutional Changes of Government in African (Nordiska Afrikainstitute ,Uppsala
2011) https://library.au.int/unconstitutional-changes-government-africa-3 Accessed on April 1, 2022
2
Tolera Solomon, `Unconstitutional Change of Government in Africa and AU`s Response: The Case of Egypt`
(Master thesis, Addis Ababa University 2018)
3
Muna Ndulo, The African Union: Legal and Institutional Framework (Brill,2012)
4
Ibid
5
Zamfir lonel , `actions of African union against coups d’état`[November 2017] ,Foreign Affairs,
http://www.euroiparl.europa.eu/thinktank/en/document/EPRS_ATA(2017)608822, Accessed on April 1, 2022
6
Mxolisi S. Nkos, `Analysis of OAU/AU Responses to Unconstitutional Change of Government in Africa`
(Degree thesis, University of Pretoria 2010)

1
appearing signs of change. One of the primary signs of this came through the June 1997
summit in Harare, which took place in blink of an eye after a military overthrow in Sierra
Leone driven by major Jonny Paul Koroma, which removed the democratically chosen
government of President Ahmed Tejahn Kabbah. 7 At its summit the OAU meeting called for
a reoccurrence to constitutional government in Sierra Leone and empowered the economic
community of West African States (ECOWAS) to attain that objective. At the point, at Lome,
Togo, in July 2000, the OAU meeting embraced the declaration on a system for reaction to
unconstitutional change of government (The Lome Declaration).8

The move from OAU to the AU in 2001 brought with it much trust for continental integration
endeavours and the capacity the organisation to advance peace, solidness and development.
The essential framework for advancing democracy and good administration among member
states of the AU is laid down within the Constitutive Act hereinafter alluded to as the AU Act
setting up the Union and number of treaties, declaration and other instruments. 9 The
Constitutive Act of the African Union gives among the foundational standards of the AU
degree to advance the democratic values, counting condemnation of unconstitutional change
of government.10

In the 2007 the African Charter on Democracy, Elections and Governance taken after a long
arrangement of continental wrangles about and policy initiatives on how to move forward
democratic governance on the African continent. 11 The Charter implied at the long run
creation of an African regional criminal court. Article 25(5) of the Charter gives that
perpetrators of unconstitutional change of government may too be attempted before the
competent court of the union. It did not state which court that would be.12

In June 2014, the African Union ( AU ) meeting of heads of states and government meeting
in Malabo, Equatorial Guinea, embraced the protocol amendments to the protocol on the
statute of the African Court of Justice and Human Rights and called on AU part states to sign
and confirm it. The protocol amplifies the jurisdiction of the yet to be set up African Court of
Justice and Human Rights (ACJHR) to crimes beneath international law and transitional
7
Ibid
8
Eki Y. Omorogbe, `A Club of Incumbents? The African Union and Coups D’état` (2021) Vol.44/Iss.1
Vanderbilt law review 123, https://scholarship.law.vanderbilt.edu/vjtl/vol44/iss1/3, Accessed on April 3, 2022
9
See S. Nkos (N6),
10
See Omotola S. (N1)
11
Micha Wiebusch & Others, `The African Charter on Democracy, Elections and Governance: Trends,
Challenges and Perspectives` (2019) Vol. 54 Africa Spectrum , https://doi.org/10.1177/0002039719896109
Accessed on April 8, 2022
12
Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded
African Court (2016)

2
crimes.13 The international criminal law area of the ACJHR will serve as an African regional
criminal court, working in a way associated to the international criminal court ICC but inside
a barely characterized geographical scope, and over a greatly extended list of crimes. 14

One of the foremost disputable violations that have a place to the subject matter jurisdiction
of the recent to be established African criminal chamber is without a doubt the crime of
unconstitutional change of government.15 The reason for this is that the unconstitutional
change of government on the continent has disrupted the peace of the member states and
caused great unrest and economic stagnation, which has severely hampered the continent`s
future and the problem remains unresolved as the rest of the world does not fully understand
the seriousness of the cost to the continent and the international criminal court has not
included it in its jurisdiction. Due to the lack of attention paid to the case and the lack of a
satisfactory solution, much work is expected to be done for the newly formed African
criminal court. These homework assignments are fraught with challenges and international
pressures that challenge the court`s capacity.

Therefore, this thesis paper evaluates the general idea of the crime, the concept of the
criminalization of unconstitutional change of government at the regional level and the
challenges and scenarios that the new African court faces. Also the paper providing details
about the rules and regulations regarding to the issue and the pros and cons of criminalize
unconstitutional change of government by the regional law and giving jurisdiction to the
regional court.

1.2 Statement of Problem

The problem of unconstitutional change of government has been a major impediment to
development and peace in Africa since independence. Recognizing the seriousness of the
issue, which has not been given enough attention in the international arena and has not been
included in the list of international crimes, the continent has done a number of thing, ranging
from imposing various sanctions to condemn this act. However, it is true that the African
continent is still facing a major unresolved issue of peaceful transition of power and
unconstitutional change of government. With four AU member states, the African Union
(AU) suspended more member states in the course of one year than ever before in its history.

13
Ibid
14
Ibid
15
Hermen Van Der Wilt, `Unconstitutional Change of Government: A New Crime within the Jurisdiction of
the African Crimiinal Court` in Charles C. Jalloh, Kamari M. Clarke, Vincent O. Nmehielle, International
Criminal Courts and Tribunals (Cambridge university press, 2019)

3
Guinea, Mali, Sudan, and Burkina Faso were excluded temporarily following
`Unconstitutional Changes of Government` that violated the African Charter on Democracy,
Elections and Governance and the AU constitutive Act.16

It is clear that African countries need to work together more than ever to find a solution to
this great continental problem and to solve their own problems on their own. Because of this,
the AU`s adoption of the Malabo Protocol has been characterized as `revolutionary` because
it would create the world`s first regional criminal court. The establishment of this regional
court will play an irreplaceable role in bringing to justice those responsible for crimes such as
unconstitutional change of government and their perpetrators beyond the continent.
However, this is the matter that needs to be addressed in light of the international pressure
and obstacles that may be encountered in the context of the new crimes (such as
unconstitutional change of government) that have been brought under the jurisdiction of the
African criminal court since its inception. Although the establishment of the African criminal
court is a sign that the continent is beginning to address its own problems, it needs a
foundation and legal framework that will enable it to stand on its own two feet.

In particular this, African criminal court, which will address the biggest and most unresolved
issue of unconstitutional change of government in the continent, will face many challenges
and obstacles. The main reason for this is not only the scale and severity of the crime, but
also the fact that it is a serious crime that needs to be avoided by the international community
to this day. Therefore, the criminal court must anticipate the challenges ahead and pave the
way for the future. In order to do this, it is important to distinguish between the criminal court
and unconstitutional change of government, as well as the challenges that this crime poses
under the jurisdiction of the court, to gather sufficient information and to suggest possible
solutions from different angles.

The research paper critically analyse the main issues that could be a challenge and an
obstacle to the new African criminal court, as well as the new hope that the court has brought
in terms of unconstitutional change of government. Additionally, the paper is designed to
provide a comprehensive understanding of the implications of unconstitutional change of
government in the continent and to provide possible recommendations to the challenges
facing the African Criminal Court.

16
Foundation office Ethiopia/ African Union, `Unconstitutional Changes in Africa. A New Trend?`,
https://www.kas.de/en/web/aethiopien/static-contents-detail/-/content/verfassungswidrige- Accessed on May
23, 2022

4
1.3 Objective of the Study
1.3.1 General Objectives
The general objective of this thesis paper is to critically analyse the criminalization of
unconstitutional change of government under the new African criminal court and to examine
the challenges and prospects. It is therefore, a research paper aimed at exploring the realities
of unconstitutional change of government in Africa and the resolution that needed to be
addressed.

1.3.2 Specific Objectives

 To critically evaluate and analyse the legal frameworks and provisions that have been
enacted and applied on the continent to criminalize unconstitutional change of
government
 To examine the challenges and prospects facing the new African criminal court
 Explain the magnitude of the damage caused by unconstitutional change in the
continent and the seriousness of the issue
 Introduce new ideas and give recommendation around the issue.

1.4 Research Question

o What is the harm that the continent has suffered through unconstitutional government
change? How serious and complex is the case?
o What are the legal frameworks and provisions enacted and applied on the continent to
criminalize unconstitutional change of government?
o What are the challenges and prospects of the new African criminal court?

1.5 Significance of the Study

This thesis paper is to give legal analysis on the criminalization of unconstitutional change of
government in the new African criminal court based on the legislations, provisions and
protocols in Africa. This thesis paper has a great importance to evaluate the challenges of the
new African criminal court and to examine prospects in terms of unconstitutional change of
government. And also it is important to show the impact of unconstitutional change on the
continent as well as its impact on democracy building, good governance, and the rule of law.
Mostly this thesis paper have importance by indicating the African union efforts and results
regarding the issue and give recommendation for the biggest problem of the continent that
unconstitutional change of government.

5
1.6 Scope of the Study
The research paper is delimitated to critically analyse the criminalization of unconstitutional
change of government under the new African criminal court and the research not discuss the
criminalization of other international crimes in the new African criminal court.

1.7 Research Methodology

The researcher has adopted the qualitative research methodology. The research paper adopted
doctrinal research method. This thesis paper primarily focus on the Malabo Protocol, the
African Charter on Democracy, Elections and Governance, the Lome Declaration and the
Constitutive Act. Additionally, the researcher referred other regional and international
legislations, articles, books, and other legal materials that are significant for this research.

1.8 Limitation of the Study

In conducting this research, the potential limitations are; it is a challenge that the deadline for
completing this paper is very short and not more than one month. As a result, it is very
difficult to investigate the matter further. In addition, the research paper should be written in
conjunction with the exit exam study, making it extremely difficult for the author of the
research to manage and use the time. On the other hand, the pressure of extracurricular
activities can be cited.

1.9 Organization of the Study

The study is organized in to four chapters. The first chapter provides historical framework of
to introduce the topic on the issue. The second chapter talk about the applicable regional laws
and on the crime of unconstitutional change of government, other legislations and legal
materials in the region and the nature of unconstitutional change of government. The third
chapter deals with the background history of the African criminal court, the process of
criminalization of unconstitutional change of government and the challenges and prospects of
the new court and the African Union position in the issue. The fourth and the last chapter is
the conclusion of the research and the recommendation given from the researcher.

6
 Chapter Two

The Criminalization of unconstitutional change of government under the

African continental laws and Emergence of the African Criminal Court

2.1 Definition of Unconstitutional Changes of Government

Constitutionalism has its roots in social contract theory, written by John Locke among others.
The basic argument is that human beings have inalienable and natural rights to life, and
property. And for us to exercise these rights, we create a political company in which the
constitutional principles govern the supreme.17 The social contract between those governed is
based on the approach to governance based on rights. This means that leaders rule for the
pleasure of the people, they do not rule by sovereign license at the expense of constitutional
rules. Good governance means following the rules. We have to accept an electoral defeat if
the people want it.18 Unconstitutional means that the law or act violated what is permitted by
the constitution.19

Government action is only legitimate when it falls within the power conferred by the people
under the constitution. A written constitution, as the direct and fundamental expression of the
sovereign, is “the absolute rule of action and decision for all departments and offices of
government with respect to all matters covered by it, and must control as it is written until it
is changed by the authority which established it.” it applies equally to all elements of
government and to all citizens. 20 Various have defined in their constitutions what government
should look like, who should come to power, and how the government should be
transformed. The Transfer of power must be by popular vote and respect the rule of law and
the rules and regulations of the constitution. Accordingly, we call this an unconstitutional
change of government designed to subvert and overthrow the legitimate system of
government enshrined in the constitution in a way that goes beyond the scope of the
constitution.

The organization of African Unity in its meeting of heads of states and government on the
thirty-sixth ordinary session agreed on the definition of unconstitutional change of

17
Joleen Steyn Kotze, `African Faces a New Threat to Democracy: The `Constitutional Coup`, (University of
the Free States, 2017) https://www.google.com/amp/s/thecoversation.com/amp/africa-face-a-n..
18
Ibid
19
Study.com, `Unconstitutionality`, Nathan Murphy, Mark Pearcy, 01/28/2022,
https://study.com/learn/lesson/unconstitutional-overview-examples.html
20
Raymond Ku, `Consensus of the Governed: The Legitimacy of Constitutional Changes`(1995) vol. 64/ Iss2/
Fordham Law Review, https://ir.lawnet.fordham.edu/flr/vol64/iss2/5

7
government. The declaration defined unconstitutional change of government as military coup
d’état against a democratically elected government, intervention by mercenaries to replace a
democratically elected government, replacement of democratically elected governments by
armed dissident groups and rebel movements and the refusal of a government in charge of
relinquish power to the winning party after free, fair and regular elections. 21 Unconstitutional
change of government are also defined in the African democracy charter as amendment or
revision of constitutions and legal instruments, contrary to the extension of the mandate of
the current government.22 The Malabo protocol on the amendments to the protocol
establishing the African court of justice and human rights, adopted in 2014, added another
form of UCG would prevent any substantial changes to the electoral laws in the last six
months before the elections without the consent of the majority of the political actors. 23 From
this forms of unconstitutional changes of government, military coup d’états are commonplace
occurrence in many African countries.

The term `coup d’état` is a French word that made its way into the English dictionary in the
17th century. It literally means `stroke of state` or `sudden change at the summit of the state`. 24
conceptually, however, it is defined by McGowan and Johnson as `events in which existing
regimes are suddenly and unlawfully displaced by the action of relatively small groups, in
which members of the military, police, or security forces state security play a key role, either
alone or together with a number of civil servant or politicians`. 25 Three types of military
coups have been observed in recent years:26 (a) military coups proper, in which members of
the military overthrow the incumbent political leader and install a military led government,
for example in Mauritania (2005 and 2008), Guinea Bissau (2009 and 2012), Niger (2010),
and Mali (2012); (b) instances of forced changes of government accompanied by mass
protests have facilitated change of government supported by the military. Examples include

21
Assembly of Heads of State and Government, Thirty-Sixth Ordinary Session/Fourth Ordinary Session of the
African Economic Community, 10-12 July, 2000, Lome, Togo
22
Theresa Reinold, `No Unalloyed Good. The AU`s Rejection of Government`, Volkerrechtsblog, 6 July 2015,
https://voelkerrechtsblog.org/de/no-unalloyed-good/
23
Cynthia Mouafo Piaplie, `African Solutions to African Problems? The African Union`s Sanctions Regime
Regarding Unconstitutional Changes of Government` ( Master thesis, Carleton University,2019)
24
Issaka K. Souare, `The AU and the Challenge of Unconstitutional Changes of Government in Africa` (2009)
Institute for security studies, https://www.africaportal.org/publications/the-au-and-the-challenge-of- Accessed
on April 3, 2022
25
Ibid
26
Solomon Ayele Dersso, `Unconstitutional Changes of Government and Unconstitutional Practices in Africa`,
2016, African peace, African politics, World Peace Foundation

8
Madagascar and Egypt, and (c) military involvement in violation of constitutional processes
as was the case in Togo.27

2.2 History of Unconstitutional Change of Government in Africa

According to clayton Thyne and Jonathan Powell`s coup record, there were 457 coup
attempts between 1950 and 2010, of which 227 (49.7%) were successful and 230 (50.3%)
were unsuccessful, failed. They note that unconstitutional change of government “occur most
frequently in Africa and the Americas (36.5% and 31.9%, respectively). Asia and the Middle
East recorded 13.1% and 15.8% of all global coups, respectively. 28 Europe had by far the
fewest coup attempts: 2.6%. Most of the unconstitutional change of government attempts
took place in the mid-1960s. From 1950 to 2010, most of the coups failed in the Middle East
and Latin America failed. In Africa and Asia they had a slightly greater chance of success.
The number of successful coups has decreased over time.29

Unconstitutional changes of government are widespread in Africa. The persistence of this

political error has a historical connotation, which combines the development of the concept of
unconstitutional change of government with the “third wave of democratization,” that is to
say the African states access to independence. The history of unconstitutional change of
government in several Sub-Saharan African countries coincides in consistent with the
definition enshrined in the African charter on democracy, election, and governance that any
amendment or revision of constitutions or legal instruments that undermines the principles of
democratic change.30 An analysis of the unconstitutional change of government in SSA
considers several aspects together.

Traditionally, unconstitutional government change find fertile ground in coups d’état like in
Central African Republic and affect peace and security in central Africa. In other contexts,
the internal identity crises of certain Sub-Saharan African states such as Rwanda where the
politicization of ethnicity in the 1990s created a climate of tension and ethnic conflict
between Tutsi and Hutus and led to unconstitutional regime change, creating a climate of
insecurity in east Africa ever since.31

27
Ibid
28
https://en.m.wikipedia.org/wiki/coup_d%27%c3%a9tat#cite_ref-:0_4-2, Accessed on May 22,
29
Ibid
30
Tata Sunjo, `Unconstitutional Changes of Government in Sub-Saharan Africa: Breaking the Cycle`, 2021, ON
POLICY ,Magazine, https://www.google.com/amp/s/onpolicy.org/unconstitutional-changes-of-governmment-
in
31
Ibid

9
Also the most acute crises in the South African countries over the past 10 years have also
been triggered by governance issues, including deadlocks, authoritarian rule, and
irresponsibility of government and the misuse of state resources to stay in power.
Constitutional crises resulting from weakening of democratic institutions by authoritarian and
the military regimes have been temporarily contained through the formation of transitional
governments in Zimbabwe, Madagascar and the DRC. 32 But the ongoing governance crisis in
Zimbabwe has recently degenerated into a barely disguised military coup, Madagascar could
face new tensions in the upcoming elections, and the DRC has not yet to fully restore the
regular constitutional order.33

Of all the continent`s sub-regions, when it comes to the unconstitutional overthrow of the
government, West Africa has an unfortunate leadership position on the African continent.
The very first bloody overthrow of a government in era of African independence took place
in a West African country: Togo.34 In 1963, Sylvanus Olympio, the country’s first president,
was overthrown and assassinated in a military coup. From January 1955 or with the date of
independence of the other fifteen states until the end of 2004, West African states had
experienced forty-four successful military coups d’état, forty-three attempted often-bloody
coup plots, eighty-two reported coup plots by elements of the military, and no less than seven
gruesome civil wars.35

The emerging trend of unconstitutional changes of government and military assisted

transitions has contributed to declines of representative government and its sub attributes.
These transitions have taken place with the support of the military as seen in Algeria (2019),
Egypt (2013), Sudan (2019 and 2021) and Zimbabwe (2017).36

32
The Nordic African Institute (NAI), `Peace and Security Challenges in Southern Africa: Governance Deficits
and Lacklustre Regional Conflict Management`, Policy note no 4: 2018
33
Ibid
34
United Nations Office for West Africa, `Life After State House: Addressing Unconstitutional Changes in
West Africa`, 2006
35
Ibid
36
International Institute for Democracy and Electoral Assistance, `The State of Democracy in Africa the Middle
East 2021: Resilient Democratic Aspiration and Opportunities for Consolidation`, 2021

10
2.3 Criminalization of Unconstitutional Change of Government under the
Continental Laws

2.3.1 INTRODUCTION
During the transition from the OAU to the AU, numerous decisions and protocols were
adopted to promote and maintain of peace, democracy and good governance. Some of these
instruments deal in particular with the issue of unconstitutional change of government and
thus form part of the overall picture of the AU in this area. 37 The Union (AU) has taken a
series of measures to criminalize crime and bring the perpetrators to justice. Unconstitutional
changes in government establish dictatorships, undermine democratic governance, prevent
the exercise of the people`s rights to form or change their own government, and lead to grave
human violations.38 In connection with the seriousness of the case and the damage it is
causing the member state of the AU has issued a number of legal instruments to address the
unresolved issue of unconstitutional change of government in the continent and the continent
and the slowdown in Africa`s development and democratization. In this section, the author
explores the draft legislations, regulations and declarations of the organization of African
unity (OAU) regarding criminalization of unconstitutional change of government, as well as
the current legislations and regulations enacted by the African Union to criminalize the issue.

2.3.2 The Lomé Declaration of July 2000

The Lomé Declaration though is a non-binding document, it lays the foundation for
democratic governance on the continent. It was necessitated by concerns among OAU
member states about a resurgence of coups in Africa. The Declaration encourages the seizure
of power through constitutional means and censures UCG`s. 39 The Lomé Declaration was

37
See M. Piaplie (N23) pp. 46
38
Chidi Anselm Odinkalu, `The current AU Position on Unconstitutional Changes in Government`, open
society institute (2008), https://www.aprmtoolkit.saiia.org.za/component/docman/?
task=doc_download&gid=384&ltemid Accessed on May 22,2022
39
Githiri Nicole Wamui, `The Africa Union`s Response in Addressing Unconstitutional Changes of Government
in Africa between 2000 and 2012` ( Bachelor’s degree thesis, Kampala International University, 2013)

11
born against the backdrop of the resurgence of the coups d’état phenomenon in Africa, a
phenomenon that not only threatened the continent`s peace and security, but also a setback in
the continent`s democratization agenda, which underlined the respect for the rule of law,
based on the peoples, expressed through the vote and not through the barrel of the gun. In
order to provide a solid foundation for the OAU program for the promotion of democracy
and democratic institutions in Africa, the Lomè Declaration envisaged the elaboration of a set
of principles on democratic governance to be respected by all member states. These
principles, derive from various documents and declarations adopted by the OAU over the
years.40

The Declaration also stated that the member states unanimously rejected any unconstitutional
change as an unacceptable and anachronistic act, which is in contradiction with the
continental commitment to promote democratic principles and conditions. The Declaration
stets out the elements agreed by that the member states of OAU response to unconstitutional
changes of government.41 This agreed elements are:
(a) A set of common values and principles for democratic governance;
(b) A definition of what constitutes an unconstitutional amendment; and
(c) Measures and actions that the OAU would gradually take to respond to an
unconstitutional change of government; and
(d) An implementation mechanism.42

In the event of an unconstitutional change of government occurring in a member state, the

Lomé Declaration requires the OAU to condemn this change and to urge for a swift return to
constitutional order. The perpetrators must be allowed a maximum period of up to six months
to restore constitutional order. During this period, the government in question should be
suspended from participation in the governing bodies of the OAU. 43 At the end of the six
month period, a series of limited and targeted sanctions should be imposed against a regime
that refuses to restore constitutional order, including visa denials, trade restrictions and
restrictions of on interstate contacts. The central organ of the Conflict Prevention,

40
Francis Nguendi Ikome, `The Lome Declaration:`Context, Content, and Interpretation`, Institute for Global
Dialogue, 2007, https://www.jstor.org/stable/resrep07759.8
41
Office of the United Nations High Commissioner for Human Rights, `Countries Issues International Law
Human Rights Bodies About OHCHR`,2012,
https://www2.ohchr.org/english/law/commpilation_democracy/lomedec.htm
42
Ibid
43
Stef Vandeginste, `The African Union, Constitutionalism and Power-Sharing` (2013) Vol. 57/Iss.1/Journal of
African Law, http://journal.cambridge.org/abstract_S0021855312000149

12
Management and Resolution Mechanism, later replaced by the PSC, tasked with
implementing the Lome Declaration. 44

2.3.3 The African Union Constitutive Act

The Constitutive Act of the African Union marks a new era of institution-building in post-
colonial Africa. It is conceived as one aspect of Africa`s response to the challenges of
globalisation and regional integration. The Constitutive Act, amended in January 2007 in
Addis Ababa, Ethiopia, are fundamentally a catalyst for building a culture of peace and
political stability in Africa.45 The constitutive act implies the principle of reduced sovereignty
for all its member states by recognizing in the article 4h, the right of the AU to intervene in a
member states, following a decision of the assembly on serious circumstances such as war
crimes, genocide and crimes against humanity and `the right of a member state to request
intervention from the union in order to guarantee peace and security`.46

Article 4 of the African Union Constitutive Act proclaims `respect for democratic principles,
human rights, the rule of law and good governance` and `condemnation and opposition to
unconstitutional changes of governments`. Africa has pledged `strictly enforce the union`s
position of the union on unconstitutional change of government`. 47 The constitutive act
provides for the establishment of the Pan-African Parliament (PAP) as an advisory body to
promote the principles of human rights and democracy in Africa. The PAP has the power; “to
consider, discuss or express an opinion on any matter, concerning to respect for human rights,
the consolidation of democratic institutions and the culture of democracy and the promotion
of good governance and the rule of law. This include UCG`s. 48 The Constitutive Act therefore
completes AU`s response to the UCG`s in Lomé Declaration in three dimensions. The first
dimension is the exclusion of a member states from the AU for having committed a UCG.
Secondly, there is the possibility to intervene in the event of a threat to legitimate order. Third

44
Ibid
45
African Institute of South Africa, `Unconstitutional Changes of Government in Africa: An Assessment of the
Relevance of the Constitutive Act of the African Union`, 2011, issue 44,
https://media.africaportal.org/documents/No-44.-Unconstitutional-Changes-of-Government-in-Africa.pdf
46
Ibid
47
Zeray Yihadgo, `Democracy, Peoples` Uprising and Unconstitutional Change of Government In Egypt: The
African Union Principles and Responses`, Blog of the European Journal of International Law,2013,
https://www.ejiltalk.org/democracy-peoples-uprising-and-unconstitutional-change-of-government-in-egypt-the-
african-union-principles-and-responses/
48
Rumbidzai Dube, `Fighting Unconstitutional Changes of Government or Merely Politicking? A Critical
Analysis of the African Union Response`, (LLM degree thesis, Addis Ababa university,2010)

13
there is creation of binding obligations on the assembly of heads of states and government,
the PAP and the PSC take action against perpetrators of UCG`s.49

Article 30 states that “the governments which come to power by unconstitutional means do
not be allowed to participate in the activities of the Union. More importantly, article 23(2)
serves as the basis for imposition of sanction: in addition, any member state that does not
comply with Union decisions and directives and directives may be subjected to other
sanctions, such as the denial of transport and communication links with other Member States,
and other measures of a political and economic nature to be determined by the Assembly.
Unconstitutional changes of government are the only obligation of constitutional law which is
punishable.50

2.3.4 The African Charter on Human and Peoples Right

The African continent has also moved towards an articulated to democratic governance in
continental instruments and indirectly through international instruments. The African Charter
on Human and Peoples Right stipulates in article 20 that “all peoples shall have the right to
existence. They shall have the unquestionable and inalienable right to self-determination.
They shall freely determine their political status and shall pursue their economic and social
development according to the policy they have freely chosen.” The right of a people to
determine their “political status” is a counterpart of article 13 and entails the right of citizens
to freely choose which people or parties govern them. Tyranny is incompatible with the right
of peoples to freely determine their political future. 51 Therefore, any seizure of government
by force by any group violates article 13(1) and 20(1) of the charter. The African commission
on human and people’s rights has seized on numerous occasions by communications to
interpret article 13 and 20 the charter to which it has ruled that unconstitutional assent to
power is contrary to the provisions of the charter. During the 1990s, the African commission
on human and peoples` rights, responsible for ensuring respect of the African charter, was
required to interpret articles 13 and 20 of the charter, on political participation and self-
determination in relation to two forms of unconstitutional changes of government, in cases
against Nigeria and the Gambia. In June 1993, the military regime in Nigeria annulled a
general election mid-way through the announcement of voting returns. Deciding on

49
Ibid
50
See M. Piaplie (N23) pp. 46
51
Meles Tewodros Alefe, `Power to the People: Right to Intervene of the Union to Restore `Legitimate Order`
Under Article 4(H) of the African Constitutive Act`, (Master thesis, Central European University, 2010)

14
communication challenging this decision, the African commission held that the annulment
violated article 13 and 20(1) of the charter.52

2.3.5 The African Charter on Democracy Election and Governance

There is a mixed picture of precision in the AU policy regarding UCG. Inspired by the Inter-
American Charter of OAS, the African democracy charter establishes a universal framework
the protection and proactively promotion of democracy on the African continent. 53 In
addition to banning, completely rejecting and condemning UCG`s, the ACDEG adds value to
the AU response in a several ways. First, it recognises UCG`s as an `essential cause` of
insecurity, instability and violent conflict on the continent. Access to political power has
connotations on development models in Africa because political control determines control
over resources. Groups and individuals will go to war, demonstrate, assassinate leaders and
engage in general outbursts of violence to obtain these resources. Second, the ACDEG
expands the definition of UCG`s and this element bridges the gap of loopholes affecting
constitutional transfer of power. Effectively with ACDEG, constitutional amendments will no
longer be at the sovereign discretion of states.54

Third, the provision on constitutional amendments is particularly important because ignoring

t it could plunge the continent back into the abyss of coups and military rule; reverse the
gains t the framework has made to date. Fourth, while the Lomé Declaration maintains ties
with a member state for the sake of ensuring continuity of that state`s financial contributions
to the AU, ACDEG fills a fundamental gap and highlights the need to maintain compliance
with human rights obligations by a suspended state notwithstanding its suspension. 55 Fifth,
ACDEG extends the imposition of sanctions on member states that incite or support a UCG
in another state. This reinforces the AU`s response by encouraging cooperation between
states to eradicate UCG`s. Sixth, perpetrators of UCG`s are prohibits in ACDEG from
holding elections in which they are officially elected into power, what most scholars refer to
as auto-legitimation. Seventh, ACDEG provides for the trial of perpetrators of UCG`s before
the competent tribunal of the AU.56

One of the objectives of the ACDEG is to uphold the rule of law, based on the supremacy of
the constitution and constitutional order. Article 14(1) of the ACDEG provides that `states
52
Ibid
53
Julia Leininger, `A Strong Norm for Democratic Governance in Africa , International Institute for Democracy
and Electoral Assistance`, 2014,
54
See R. Dube, (N48) Pp. 32
55
Ibid
56
Ibid

15
parties shall strengthen and institutionalize constitutional civilian control over the armed and
security forces in order to ensure the consolidation of democracy and constitutional order.
Article 23(5) of ACDEG added a fifth element that constitute UCG, which was not included
in the Lomé Declaration, the `modification or revision of the constitution or legal
instruments, which is a violation of the principles of democratic change of government. `
article 24 of the ACDEG authorizes the PSC to exercise its powers to maintain constitutional
order even before a full-fledged UCG occurs and article 25(1) allows a state party in which
UCG has taken place to suspend.57

In addition to the sanctions provided under article 23 of the constitutive act, `the assembly
may decide to apply other forms of sanctions on perpetrators of UCG, including punitive
economic measures. Article 25(4) of the ACDEG provides that perpetrators of UCG are not
allowed `to participate in election held to restore democratic order or to hold a position of
responsibility in the political institutions of their state. 58 The ACDEG has created a legal
framework to hold of UCG instigators accountable that was previously absent. States parties
are required to either prosecute or extradite UCG offenders. In line with this, article 14(2) of
the ACDEG obliges state parties to take legislative and regulatory measures to ensure that
perpetrators of UCG are dealt with in accordance with the law. Article 25(5) provides that
perpetrators of UCG may be tried before the competent court of the AU. Although it was not
clear at the time what the court would be, most thought it would be the African court. 59

2.3.6 The Malabo Protocol

In June 2014, at the summit in Malabo, Equatorial Guinea, the African union adopted a
protocol containing in annex an amendment to the statute of the African Court of Justice and
Human and Peoples` Rights.60 The Rome Statute crystallizes a complementary relationship
between the ICC and the national legal systems pursuant to article 17 but makes no mention
of regional or ad hoc jurisdictions. The prospects for integrating regional courts into the
principle of complementarity depend on a positive judicial interpretation of the principle and
clearly defined obligations at each level. This will necessarily require government funding

57
Albab Tesfaye Ayalew, `African Court of Justice and Human and Peoples` Rights: Prospects and Challenges
of Prosecuting Unconstitutional Changes of Government as an International Crime`, (LLM degree thesis,
University of Mauritius, 2012)
58
Ibid
59
Ibid
60
Gerhard Werle & Moritz Vormbaum, `The Search for Alternatives: The “African Criminal Court”,
Commentary, march 28, 2017 , ISPI, https://www.ispionline.it/it/pubblicazione/search-alternatives-african-
criminal-court-16451

16
and support. This approach will contribute to the development of a robust international
criminal law justice.61

The protocol criminalizes for the first time an unconstitutional change of government as a
crime. The offense is committed by private and state officials. A coup against a government
can be committed by state officials in conjunction with the military. The African criminal
Court will not be able to exercise jurisdiction over this crime if the responsible leaders of its
commission enjoy immunity. The crime referred to in Article 28E (1) (d) is committed by
heads of states or governments or even by those who may act in that capacity. Article 28E (1)
(a), (e) and (f) describe the same issue. Thus, while the jurisdiction of the court over offenses
committed by private individuals or groups is effective, this is not the case for state officials
who are immune from prosecution under Article 46Abis. This situation is not remedied even
with the African charter on democracy, elections and governance.62

Some provisions of the protocol reflect the AU-ICC conflict. The main is Article 46A bis of
the protocol which provides:

“No charges shall be brought or prosecuted in court against any serving Head of State or
government, or anyone acting in that capacity or entitled to it, or other senior government
officials on the basis of their duties, during their term.”63

At the same time, the obligation of states to cooperate with International Criminal Law under
Article 46L(g) is limited to `Any other assistance not prohibited by the law from the arrest,
surrender and transfer of suspects to the court`. When these provisions are read in
conjunction with the AU`s policy of non-cooperation with the ICC in the arrest of any
African Head of State it appears that the goal is to remove incumbent leaders from the list of
all international courts and tribunals. 64 Finally, the protocol makes no reference to the Rome
Statute or the ICC. That the silence is intentional. The legal reason for the omission is that a
reference to the ICC would have required a commitment to the ICC. This suggests that the
AU intends to side-line the ICC in Africa.65

61
Sarah Nimigan, `The Malabo Protocol, the ICC and the Idea of `Regional Complementarity`, (2019) Journal
of International Criminal Justice, vol. 17, issue 5, pp.1005-1029, https://doi.org/10.1093/jicj/mqz040 , Accessed
on May 22, 2022
62
Nicksoni Filbert, `The Immunity Clause in the Statute of the `African Criminal` and its Impact in the Exercise
of the Courts` Jurisdiction over the Crimes` (Master thesis, University of the Western Cape, 2017)
63
Omorogbe, E.Y. `The Crisis of International Criminal Law in Africa: A Regional in Response?` Neth Int Law
Rev 66, 287-311 (2019). https://doi.org/10.1007/s40802-019-00143-5 Accessed on May 23,2022
64
Ibid, pp. 293
65
Ibid, pp. 294

17
 Article 28E of the Malabo Protocol intended to serve as the legal basis for the function of the
African Criminal Court defines the unconstitutional change of government crime as
committing or ordering the commission of a series of specific acts involving for the purpose
of maintaining the illegal access or power. 66 The crime of unconstitutional change of
government as envisaged by the Malabo protocol encompasses a number of more or less
specific acts.67 These acts include:

(a) A putsch or coup d`état against a democratically elected government;

(b) An intervention by mercenaries to replace a democratically elected government;
(c) Any replacement of a democratically elected government by the use of armed
dissidents or rebels or through political assassination;
(d) Any refusal by an incumbent government to relinquish power to the winning party or
candidate after free, fair and regular election;
(e) Any amendment or revision of the constitution or legal instruments, which is an
infringement on the principles of democratic change of government or is inconsistent
with the constitution; and
(f) Any substantial modification to the electoral laws in the last six months before the
elections without the consent of the majority of the political actors.68

An “intervention by mercenaries to replace a democratically” is at first sight relatively

simple and straightforward. The meaning of “democratically elected government” insofar
as it is a term whose meaning may not be immediately apparent is further clarified by a
reference to the meaning of the term under “AU instruments”. However, it is pretty clear
that the plot here is any mercenaries’ plot that leads to removal of democratically elected
government.69 From the foregoing, it can be seen that the acts constituting the crime of
unconstitutional change of government fall into two broad categories. First, unlawful acts
committed by individuals or groups directed against `a democratically elected
government` with the intention of `illegally seizing power`, namely a putsch or coup
d`état, intervention of mercenaries and the use of dissidents or armed rebels or political
murder. Second, unconstitutional acts by serving governments with the intention of

66
See V. Wilt (N15)
67
Gerhard Kemp & Selemani Kinyunyu, `The Crime of Unconstitutional Change of Government (Article 28E`,
2017, in: werle, g., voormbaum, M. (eds) The African Criminal Court. International Criminal Justice series,
(Asser Press, 2017) PP.65 https://www.researchgate.net/publication/311253634
68
Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human
Rights, Art. 28E A.U. Doc. No. STC/Legal/Min 7(1) Rev. 1 (May 14, 2014)
69
Id

18
 `illegally gaining power`, namely refusal to cede power to the winning party or candidate,
unconstitutional amendments of the constitution, and undemocratic changes to the
electoral laws in during the last six months before election.70

Under article 28E of the Malabo Protocol, several different acts may constitute the crime
of `unconstitutional change of government`. What they all have in common is that they
threaten democratically elected governments and processes. Article 28E suggests that
coup d`états can be carried out through the use of mercenaries or armed rebel groups.
These eventualities likely to be considered separate offences to prevent the real political
beneficiaries from disguising their involvement and escaping freely by hiding behind the
back of their associates. Article 28E of the Malabo Protocol refers to legislative initiatives
that would allow for the implementation of the unconstitutional changes of government. It
is clear, such measures would give an appearance of legality to such practices. Finally,
the provision repeatedly emphasizes that the victims or targets of this crime are
democratically elected governments and candidates who have won free, fair, and regular
election.71

The Malabo Protocol remains an important legal and security document. It highlights
critical gaps in the international law provisions for African conflicts. The provisions of
the protocol are not perfect and need to be revised. 72 For this reason it can only be a
prototype for a future treaty. Looking ahead, the AU could use the Protocol as a starting
point for discussions on an international criminal law that better addresses Africa`s
concerns. One option for African states is to submit advanced ideas from the protocol to
the ICC to the Rome Statute.73

2.3.7 Emergence of the African Criminal Court

The member states of the African Union (AU) played an important role in the creation of the
Rome statute and the establishment of the International Criminal Court (ICC). Senegal was
the first to ratify the Rome Statute. Niger and Republic of Congo were among 10 instruments
deposited simultaneously to effect the sixtieth ratification giving effect to the Rome Statute,
and Uganda referred the first case to the ICC. The ICC is currently dealing with 10 cases
under investigation, nine of which concern African countries. However, in a large number of
70
Manisuli Ssenyonjo, `The Crime of Government and Popular Uprising in Africa: Issues and Challenges`,
(2020) African Journal of International and Comparative Law, vol.28 issue 3, pp. 432-465,
https://doi.org/10.3366/ajicl.2020.0322 Accessed on May 23, 2022
71
See V. Wilt (N15)
72
See Omorogbe, E.Y (N63), PP.310
73
Ibid

19
decisions from 2008-2016, the AU Assembly criticised a number of prosecution and
investigations by the ICC.74 Subsequently, by letter dated 19 October 2016, South Africa
notified the United Nations Secretary General (UNSG) of its intention to withdraw from the
ICC. South Africa`s exit will take effect in October 2016. A few days earlier, on 12 October
2016, the Burundian parliament had voted to withdraw from the ICC. Gambia, Uganda and
Namibia have also announced their intention to retire; however, they still formally inform the
UN of their intention. Even more countries are expected to withdraw, which will indicate the
beginning of a huge withdrawal of African countries from the ICC.75

Amid deteriorating AU relations with the ICC, and concerns over the selectivity of the ICC
prosecutions targeting Africa, calls have been made for strengthening of the African Court of
Justice and Human and Peoples` Rights (ACJHPR) to try international crimes. Other
underlying factors could be Pan-Africanism and the need for African solutions to African
problems. The ACJHPR would therefore be the alternative to ICC. 76 Since June 2014, when
African leaders agreed to establish an African crimes court, The Malabo Protocol, adopted at
an African Union (AU) summit, must be ratified to give the court jurisdiction over
international crimes and transitional organised crimes. It is the first regional court in the
world to deal with international crime.77

The Malabo protocol is not just a “protest treaty” against the global system of international
criminal justice. As a mechanism of judicial self-sufficiency, it could extend the scope of
international criminal justice in Africa give the broader list of recorded crimes and as regards
states parties that should not be parties to the ICC statute; which is potentially a good thing. 78
If the ACJHR acquires criminal powers, it will have an advantage that its European and Inter-
American counterparts and even the ICC do not have. Article 28 of the ACJHR statute, as
well as the preamble of the statute protocol, reaffirms the constitutive act of the AU which
providing a court with the power to interpret and apply the constitutive act and `all other
treaties adopted within the framework of the union`. The other international courts are limit
themselves to interpreting a single treaty.79
74
Philomena Apiko & Faten Aggad, `The International Criminal Court, Africa and the African Union: What
Way Forward`, Discussion paper, ecdpm, no.201, (2016) www.ecdpm.org/dp201
75
Ibid
76
Ibid
77
Maram Mahdi, Institute for Security Studies, `Africa`s International Crimes Court is Still A Pipe Dream`,
2019 , https://issafrica.org/iss-today/africas-international-crimes-court-is-still-a-pipe-dream
78
See B. Kahombo (N21) Pp. 420
79
Michelle Nel & Vukile Ezrom Sibiya, `Withdrawal from the International Criminal Court: Does Africa Have
An Alternative?`,(2017) Vol.17/iss.1/African journal on conflict resolution,
https://www.ajol.info/index.php/ajcr/article/view/160585

20
The establishment of this court jurisdiction could also be based on article 5 of the constitutive
act which allows the Assembly of the AU to establish other organs of the Union in addition to
those expressly provided for in the constitutive act. The creation of the AU Criminal Court is
line with the UN Charter which promotes regionalism under Chapter VIII on “regional
arrangements”. Finally, it is a commonplace that states are sovereign and free to establish any
court they wish to collectively prosecute and judge crimes that they consider a concern to all
of them within their particular community, whether these crimes are cross-border or not
transnational by nature.80

According to article 28A (1), the African criminal court has the power to try people for the
crimes of genocide, crimes against humanity, war crimes, the crime of unconstitutional
change of government, piracy, terrorism, mercenaries, corruption, money laundering,
trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation
of natural resources, and the crime of aggression. The crime elements connected to with these
offenses are detailed in articles 28B-M of the Malabo Protocol. Under article 28A (2), the
African Criminal Court may include additional offenses to reflect developments in
international law`.81 Further, article 28A (3) provides that there is no statute of limitations for
the prosecution of offenses within the jurisdiction of the court. The transitional crimes
prohibited by articles 28E-28Lbis of the Malabo Protocol have yet to be recognised and
prohibited by international criminal law. This does not bode well for the ACC. Rather, it
allows the court to deal with those types of criminal offences that fall outside the scope of the
ICC. Arguably, the African Criminal Court could be in better position as an innovative
judicial institution that responds to a growing body of international norms.82

2.3.8 African Criminal Court and Unconstitutional Change of Government

The AU Criminal Court will have jurisdiction over 14 different crimes: four ICC crimes
aggression, genocide, crimes against humanity and war crimes and ten more crimes
unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money
laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and
illicit exploitation of natural resources. However, these crimes contain all the elements of
Rome statute, as it represents the consensus of the international community. The Malabo

80
Id pp. 423
81
Jessie Chella, `A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human
Rights- Part 1: Jurisdiction Over International Crimes` on ILA Reporter (4 January 2021) ,
https://ilarepoorter.org.au/2S021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-
justice-and-human-rights-part-i-jurisdiction-over-international-crimes-jessie-chella/
82
Ibid

21
protocol implements ACDEG`s call for the rapid formulation of a new crime of
`unconstitutional change of government’ in Africa. 83 The creation of the AU criminal court
presupposes that African as a region claims to be an executor of international law and
engages in the international fight against impunity. It also implies that the ICC, although
currently the dominant global legal system of international criminal law. Further
developments remain possible. The creation of an AU criminal court is a step in this
direction.84
According to Bassiouni`s suggestion the main characteristics that makes something an
international crime at the international level are;85
a) The prohibited conduct harms important international interests, in particularly when
poses a threat to international peace and security;
b) The prohibited conduct constitutes outrageous conduct considered offensive to the
commonly shared values of the global community, including what has historically
been characterized as conduct that shakes the conscience of humanity;
c) The prohibited conduct has temporary effects because it involves or affects more than
one state in its planning, preparation, or execution, either because the different
nationality of its perpetrators or its victims, or because the means employed cross
national borders;
d) The conduct is harmful to a person or to internationally protected interests; and
e) The conduct violates an internationally protected interest but does not rise to level
required by (a) or (b) but by its very nature is best prevented and repressed through
international criminalization.86
We can therefore divide the 14 crimes envisaged by the Malabo Protocol into the four main
Bassiouni`s four main categories. As noted, these are (1) international crimes, (2)
transnational crimes, (3) partly international crimes and (4) partly transitional crimes. The
two crimes terrorism and unconstitutional change of government have been included in the
category of partially international crimes.87 The nature of terrorism, which can involve
transnational dimensions in both its preparation and commission, also means that it is a crime

83
Balingene Kahombo, `The African Union and the Development of African International Criminal Law` (PHD
thesis, Freie Universitat Berlin, 2017)
84
Hj van der Merwe & Gerhard Kemp (eds.), `International Criminal Justice in Africa`, 2017 , Strathmore
University Press,
85
Charles C. Jalloh, Kamari M. Clarke & Vincent O. Nmehielle, `The African Court of Justice and Human and
Peoples` Rights in Context: A Classification of the Crimes in the Malabo Protocol`, (2019) Cambridge
University Press, pp. 225-256 , http://doi.org/10.1017/9781108525343.009 Accessed on May 23, 2022
86
Ibid
87
Ibid

22
that could easily be included in the partially or fully international crime basket. With regard
to acts of terrorism, it is not clear why the Malabo Protocol does not include acts which, as a
starting point may be criminalised by several UN Conventions and subject to the obligation
of prosecution or punishment extradition. Despite the absence of a generally acceptable
definition of terrorism, there seems to be a consensus that the behaviour criminalized by the
UN Conventions constitutes an international crimes. 88
Unconstitutional change of government particularly through coups is the most notable source
of conflict in Africa.89 The AU has consistently implemented its mechanism suspending
participation in the activities of all the organs of all AU bodies in states where
unconstitutional changes of government have occurred through military coups. Some African
heads of state do not organise fair, free and fair elections. Instead they are ousted from power
by coups and attempts took place in African states. The AU did not condemn the peaceful
protests but condemned the military involvement.90
Therefore, current AU practice recognises the right to freedom of expression, association and
peaceful assembly, as protected by Articles 9, 10 and 11 of the African charter. These articles
protects the right to peaceful protest-the non-violent gathering of people outdoors or indoors
held on publicly or private property for a common of expression, such as conveying a
common position on a specific topic.91 This can take various forms, including: marches,
demonstrations, meetings, processions, strikes, rallies, sit-ins, flash-mobs and resistance to
undemocratic governments to advance the implementation of human rights. However, there
is no justification for military intervention to overthrow democratically elected
governments.92
Article 28E, criminalises instructing or ordering, `for the purpose of illegally gaining access
or preserving power`, various acts including committing a coup against a democratically
elected government.93 Therefore, without having previously criminalized this offence at the
level of regional court, the Malabo Protocol allows African states to take enforcement action
in a regional rule in which refuses to peacefully transfer power to a winning candidate after
free and fair election. Regional organisations feared that this would lead to instability in not
just the country where the president refused to step down, but that it would not only lead to

88
Ibid
89
Mikiyas Bekele, `The Rationales and Challenges for the Criminal Section of Africa Court of Justice for
Human and Peoples` Right`, ( Master thesis, Addis Ababa University, 2015)
90
See M. Ssenyonjo (N70)
91
Ibid
92
Ibid
93
Id , pp. 250

23
instability in the country where the president refused to step down, but would also undermine
peace and security in the entire African region. 94 Therefore, the crime of unconstitutional
changes of government can also be explained as regional level for the damage they cause and
for the regional interests that they to protect.95

94
Ibid, pp. 252
95
Ibid

24
 Chapter Three

3. Challenges and Prospects of the New Court in the Unconstitutional

Change of Government

3.1 Challenges and prospects of the African Criminal Court

In the field of international criminal law, the principle of regional territoriality means that
Africans should prosecute international crimes committed in Africa through the criminal
liability mechanisms of existing on the continent. It also reflects the ideas of regional self-
sufficiency in dealing with African affairs in situ. This ideal led to the creation of the AU
Criminal Court.96 As the author of this research tried to point out that based on the Malabo
Protocol unconstitutional change of government is one of the major criminal cases that can be
dealt with in the jurisdiction of this regional criminal court. Below, the writer of this paper
will look at the significance of the criminalization of this crime in this court, as well as the
drawbacks and challenges that the court will face as a whole and the new prospects.
Accordingly, it should be noted that all the challenges and prospects faced by the court have
the same and equal effect on the criminalization process of unconstitutional change of
government under the court jurisdiction. Therefore, it is important to look at the challenges
that the African criminal court faces and the opportunities that lie ahead.

3.1.1 Prospects of the Court

3.1.1.1 Ensuring justice
Treaty-based crimes such as unconstitutional change of government are recognised as
underlying causes of conflict. Thus, by holding perpetrators accountable, the criminal court
could have a deterrent effect on conflict. This would contribute to the long-term objective of
the African peace and security architecture`s to promote stability and enable socio-economic
development. This is a key means by which the African court can play a different role from
the ICC. The current international criminal system does not address the root causes conflict.
This has often hampered reconciliation efforts. Another gap the African court can fill would
be to ensure that justice is done by prosecuting corporate actors who play a significant role in
conflicts across Africa.97

96
See H. Merwe & G. Kemp (N84)
97
Dominique Mystris, `Why Africa Needs a Regional Criminal Court`, DIA, 2019,
http://democracyinafrica.org/africa-needs-regional-criminal-court/

25
 3.1.1.2 Minimization of Cost
Physical proximity of criminal tribunal to the place where an alleged crime was committed
has direct consequences on due process and the actual outcome of the criminal proceedings.
The length of the proceeding and the amount of costs to be incurred for a trial depend highly
on the physical proximity of a court to the place and society where an allege crime was
committed. If the court in question is located near the victims residences, their presence will
be cheap and simplistic. In addition, the ACJHPR, upon it’s establish a victims and witnesses
unit through the registrar. This unit, which assists victims and witness in their trials, will
ensure restorative justice. The closeness of the criminal chamber to the crime scene
minimizes the travel costs for crown investigators to gather evidence. The travel expenses of
a defendant and witnesses to attend the trial are also reduced to a minimum in the case of
regional courts compared to that of supranational courts.98

3.1.1.3African Solution for Africa

Scholars have argued that the establishment of an African court would not be to override the
jurisdiction of the ICC or undermine its importance but to provide “African solutions to
African problems”. Then it would fill the vacuum created by not having recourse to regional
legal mechanism before resorting to an international one. 99 In addition, the establishment of
this African Criminal Court and the criminalization of unconstitutional change of government
will strengthen the capacity of African countries to find common solution to their problems,
strengthen the common denominator of this crime, which was agreed upon at AU summits,
and achieve the goals that the AU has been working on for many years. At the same time, it is
a court that has a promising future in terms of establishing law and order in the regional and
sub-continental courts, as well as in facilitating the way in which all can benefit and make
joint decisions. The fact that the court is able to deal with such crimes in unified manner in
African countries is also indication that unconstitutional change of government is a major
concern on the continent and a catastrophic event that has knocked on the door of all
countries. This will be of great benefit to the continent.

3.1.2 Challenges of the Court

3.1.2.1 Overlapping of Jurisdiction
The African criminal court overlaps with the ICC. Both are established permanent tribunals.
The African criminal court is silent on the issue of complementary jurisdiction over the ICC,

98
Id
99
See J. Chella (N81)

26
while the Rome Statute (which established the ICC) is silent on the question of
complementary jurisdiction over a regional court. Both article 1 and paragraph 10 of the
preamble of the Rome Statute provide that courts are complementary to national criminal
jurisdictions.100 The preamble states that `the international criminal court established under
this statute shall be complementary to national criminal jurisdiction...` 101 and also article 1
states that:

Article 1

The court

“An international criminal court is hereby established. It shall be a permanent institution and
shall have the power to exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this statute, and shall be complementary to national
criminal jurisdiction. The jurisdiction and functioning of the court shall be governed by the
provisions of this statute.”102

The drafter of ACJHPR statute did not address the relationship between the ACJHPR
criminal chamber and the ICC, in which ACJHPR`s criminal jurisdiction was seen as the
intention of the AU to undermine the power ICC. The statutes of the ICC and ACJHPR are
treaties and therefore, hierarchically equal. With this silence of both statutes, it is difficult to
establish the jurisdiction of the criminal division of the ACJHPR in pending cases and future
investigations involving member states of both statutes. The obligation of the ICC member
states is absolute. Although ICC member states are also signatories of the ACJHPR statute,
the member state will therefore face conflicting obligations and encounter difficulties
contributing its financial obligations before two criminal courts.103

In addition, Article 46H will complement the national criminal courts and the courts of the
regional Economic Communities. Both tribunals have international treaties empowering them
to exercise jurisdiction over serious international crimes. Of the 55 African states, 33 have
ratified the Rome Statute and have become state parties to the ICC. These African states are
likely to have concurrent obligations to both the ICC and the ACJHPR.104

100
See J. Chella (N74)
101
Rome Statute of the International Criminal Court, Art. 1, July 17, 1998,
102
Ibid Art. 1
103
See M. Bekele (N89)
104
See J. Chella (N81)

27
3.1.2.2Stretched Jurisdiction
Prosecuting Peculiar Crimes before the African Criminal Court
For the African regional court to prosecute the crime of unconstitutional change of
government, it is not enough that the offense is sanctioned by the AU treaty, but it is also
important that the crime be considered a `serious’ international crime. 105 The crime of
unconstitutional change of government must satisfy the two requirements these are;
`international` and `serious` while the requirement of `international` is easy to identify, the
`seriousness` is subjective and difficult to assess. However, crime of unconstitutional change
of government is difficult to qualify as an international crime. On the other hand, the
requirement of seriousness is also difficult to determine. For UN, criminal acts are serious
when the crime is considered to be `serious`. The requirement of the gravity of a crime is
specified in the Rome Statute to allow the ICC to hear cases and the prosecutor to initiate
situations. Beyond the gravity requirement, the fact that national and regional jurisdictions
criminalized certain crimes and make continuous efforts to prosecute them can be considered
as an indicator of seriousness.106

This does not mean that whenever a regional treaty prohibits a crime other than the classical
crime, the crime must be considered an international crime before a regional court can rule on
it. There are several international crimes per excellence, such as piracy, over which an
international criminal tribunal may not have jurisdiction. But when a regional treaty prohibits
a crime like an Unconstitutional Change of Government, it is not universally recognized as an
international law. The treatment of the Unconstitutional Change of Government is one of the
few norms in Africa that has gradually evolved through customs, culminating in its
codification by African Charter for Democracy, Election and Government. Without
transferring it to its competence to prosecute international crimes, the AU will constantly be
faced with a rather absurd situation where its member states recognize the existence of a
crime in their region as a crime which they consider very serious given of their practice from
at least two years ago show that the Union court cannot be sued. 107 This is an indication that
the international community does not understand the nature of the unconstitutional change of
government that is taking place during the crisis in Africa and that it has never seen the
gravity of the issue. If the negligence continues and the International Criminal Court (ICC)
continues to view Africa`s actions as a contradicts its position, the consequence will be far
105
Ademola Abas, `Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges, European
journal of international law`, Vol. 24, Iss. 3, August 2013, pages 933-946, https://doi.org/10.1093/ejil/cht042
106
See M. Bekele (N89)
107
Id

28
reaching. If the ICC continues to do so, the crisis in Africa will inevitably escalate into a
global crisis. Therefore, recognizing the seriousness and universality of the crime, the
tribunal should play its part by encouraging the action of the regional criminal courts and
further criminalizing the case.

3.1.2.3Financial Matters and Other Related Issues

Since the ICC already has a mandate for international crimes such as war crimes, crimes
against humanity, genocide and crimes of aggression, there is no need to duplicate these
mandates. This not only relieves the court of jurisdiction over wiretaps, but also relieves the
AU has little experience in funding not only its own institutions but also other international
institutions.108

Article 16 of the court establishes a general Affairs department, a human and peoples` right
section, and an international criminal law department. The first two sections embody the
courts civil jurisdiction, while the third embodies its criminal jurisdiction. The tribunal will
have to deal with the resource implications of its combined jurisdiction. The cost of
prosecuting an international crime could exceed the total annual budget of the African court.
The cost of prosecuting Liberian Charles Taylor stands at a whopping US$50 million, while
the annual budget of the sierra Leonean justice sector is about US$13 million.109

The high costs of international criminal proceedings arise mainly from the atrocious evidence
procedures associated with criminal proceedings. To Prove a case beyond reasonable doubt
the probative value of prosecution requires an investment of enormous financial resources
and time, extensive and costly investigations, a thorough examination of extensive materials
and, most importantly, operating chambers at various levels. Within the court itself. 110

Criminal proceedings are complex and time consuming. A high amount of financial resources
and skilled personnel is a necessity. The financial standing of a court has implications for the
effectiveness and independence of a court. In the case of criminal proceedings, greater
resources of qualified personnel and funding are needed for investigation, the collection of
evidence and testimony, travel expenses and funds for legal aid, witness protection and
defence unit. Therefore, the trial division of the ACJHPR, which will deal with fourteen

108
Beitel van der Merwe (eds.), `International Criminal Justice in Africa : Challenges and

Opportunities`,Kanrad Adenuer Stiftung, 2014, https://www.reasearchgate.net/publication/282327429

109
See A. Abass (N105) Pp. 944
110
Ibid

29
crimes, must have significant additional resources. However, the AU has not explained where
this extra money should come.111

This is a concern given that more than half of the court`s member states are also state parties
to the Rome statute. Financial commitments can be disputed, causing members to divert
resources from one tribunal to support the other; which one remains to be seen. A deeply
problematic factor is the number of African states that failed to meet their financial
obligations in the Hissene Habré trial held in Senegal, despite pledged funds for the creation
of extraordinary African chambers. This trial included the indictment of Habré, the former
Chadian Head of State, for international crimes committed during his tenure. If these states
have failed to support a cause of great importance to the continent, what else could they do to
support the ACJHR? Additionally, the court`s parent body, the AU, it also under fire for
constantly establishing additional institutions but failing to raise funds for its own
operations.112

This is a major setback for the continent due to the lack of financial power, which
undermines the continent`s ambitious plan to reduce the proliferation of unconstitutional
change of government.

3.1.2.4Immunity of Head of States

One of the most controversial aspects of Malabo protocol is that grants incumbent leaders and
other senior state official’s immunity from judicial investigation and prosecution. Unlike
Article 27 of the Rome Statute, which removes immunities in proceedings before national
authorities113 Article 46bis of the protocol states “no charges may be brought or prosecuted in
court against Head of state or Government of the AU or against any person acting, or
anybody acting or entitled to act in such capacity, or other senior state officials of the state on
the basis of their functions while in office”. This is despite the fact that although under
customary international law sitting heads of state and senior state officials enjoy immunity
from criminal jurisdiction of a third state, they do not enjoy such immunity before
international criminal courts. The immunity clause undermines the legitimacy of the court
and the fight against impunity on the continent, and is contrary to the founding and
organizational principle of the AU.114

111
See M. Bekele (N89)
112
See J. Chella (N81)
113
See M. Ssenyonjo (N70)
114
Eden Matiyas, `What Prospects for an African Court Under the Malabo Protocol`, 2018, Justiceinfo.net ,
https://www.justiceinfo.net/en/37633-what-prospects-for-an-african-court-under-the-m...

30
The fact that state officials enjoy immunity from prosecution simply because they hold the
office of official could provide an incentive not to leave office. As a result, the AU efforts of
promote democratization undermined.115 It follows that perpetrators of an unconstitutional
change of government or of the incumbent’s refusal to cede power to the wining party or
candidate may invoke immunity as a procedural bar to their investigation or prosecution as
long as they remain in function. This means that immunities can encourage and perpetuate
the unconstitutional change of government and exercise of power unless governments gaining
or retaining power unconstitutionally are not recognised.116 Immunity granted to sitting
African heads of state or other undefined `senior officials` can undermine the court`s ability
to exercise its jurisdiction and thereby creating an insurmountable obstacle to the legitimacy,
effectiveness and credibility.117 As a result, whenever unconstitutional change of government
takes place by government official’s conspiracy, the immunity clause can provides an
opportunity for the perpetrators to seek protection and escape.

Chapter Four

4. Conclusion and Recommendation

4.1 Conclusion
Unconstitutional changes of government is a more serious and growing issue in Africa than
any other continent in the world. The crime has been the cause of endless civil wars and
instability in many African countries since independence. To address this issue, the successor
African union and its member states, including the former organization of African unity
(OAU), have passed resolutions at various AU conferences to ensure lasting peace and
development on the continent and to promote good governance and democracy on the
continent.
A number of laws have been enacted by the former African Union (AU) to criticize,
criminalize and condemn unconstitutional change. These provisions provide interpretation
and analysis of unconstitutional change of government. This legal instruments include; the
Lomé Declaration, The African Constitutive Act, African Charter for Democracy, Election
and Government and the Malabo Protocol. However, the enactment of these laws and the
115
See M. bekele (N89)
116
See M. Ssenyonjo (N74)
117
Ibid

31
mere adoption of these laws by member states have not been a sufficient solution. Instead,
unconstitutional change of government continues to be a major headache for the continent. In
midst of efforts to eradicate this cancer of the continent, it was established in accordance with
the 2014 Malabo Protocol, the African Criminal Court. Unconstitutional change of
government is one of the new international crimes to be tried in this court. Although this
crime has not been classified as a global crime in the past, the African criminal court`s
jurisdiction is necessary and encouraging decision in light of the seriousness of the crime at
the continental level.
However, as this crime is under the jurisdiction of the regional court and is a new
international crime, the African criminal court faces many challenges. These challenges are
not only because the criminal court is empowered to try unconstitutional change of
government, but also as a whole. Among these major challenges and interactions that the
court process; having overlapping jurisdiction with international criminal court, the difficulty
of categorizing the crime of unconstitutional change of government as international crime,
the low financial capacity of the court and the immunity clause of the Malabo Protocol are
mentioned. Though, this regional criminal court has emerged with many advantages and new
prospects for the continent beyond the challenges it face. Among this are; the criminal court
will ensure justice by bringing the perpetrators to justice and punishing them, reduces
harassment and expense of previous cases before the international criminal courts and
provides access to information and witnesses and it also strengthens the ability of Africans to
solve their own problems, which in turn encourages the promotion of African solutions to
Africa`s problems.

4.2 Recommendations
On the ground of the above findings of the research the author of this paper recommends the
following solutions which she thinks will contribute to reduce and resolve the challenge
facing the African criminal court regarding to criminalization of unconstitutional change of
government.

1. The inclusion of new types of crimes such as unconstitutional change of government

in the Malabo Protocol and giving of jurisdiction to the court to prosecute the crimes
demonstrates the seriousness of the crimes. This means that the African union and its
member states must do their homework to make the world understand that the spread

32
 of the crime of unconstitutional change of government is an obstacle to development
and building of democracy. This obstacle affects not only Africa but also the rest of
the world, both indirectly and directly. Explaining and acknowledging that this crime
will create a great deal of political instability and unrest in the world should be the
core task of the Union. Accordingly, the international criminal court should
unequivocally recognize this crime as an international crime. Influencing this will be
the role of those who are playing a role in the establishment of the African Criminal
Court.
2. The African Union (AU) must impose a viable solution to the financial and budget
challenges facing the African Criminal Court. This is possible when member states
recognize the importance establishment of the criminal court in their common interest
and the significant role it plays in the peace and development of the continent and
reach an agreement to play their part. Therefore, the legal framework on which the
court is based (Malabo Protocol) must clearly state who the source of the court`s
revenue is and who the budget requirements for the various issues are covered and
where they come from. In order to ensure the continuity of the court and to ensure its
stability, the African Union and other parties must use all available resources and
work tirelessly for the court to stand on its own two feet.
3. Instead of wasting time and expense on crimes that overlapping with the
International Criminal Court (ICC) jurisdiction, the African Criminal Court should
focus on new crimes such as unconstitutional change of governments to address issues
that hinder development on the continent. It is good and encouraging.
4. Legal protection and the right to immunity of the government officials and heads of
states opens the door for them to misuse their power and to get involved in coups and
unconstitutional changes of government in other neighbouring countries as well as in
their countries. As result, depriving them of their immunity and giving them fair trial
for their crimes will reduce the spread of crime by educating others. The Criminal
Court should therefore consider this matter seriously.

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