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All too soon, an unpleasant familiar scenario is brewing in African politics: an incumbent has lost power through constitutionally-organised elections supervised by the international community and declared to be free and fair but has decided not to give up power. This time it's not Zimbabwe, neither Kenya, but Cote d'Ivoire. But certainly, the orchestrator of the plot is following the bad example set by the AU and exploiting a loophole which still exists in spite of the negative experiences in Zimbabwe and Kenya. The situation in Cote d'Ivoir, therefore, again, exposes the weaknesses in the AU and ECOWAS position on collective recognition and the urgent need for review.

Brief History – Cote d'Ivoire
Cote d'Ivoire has been a divided country since a 2002 failed coup attempt by Patriotic Movement of Cote d'Ivoire" (MPCI). The coup evolved into an armed rebellion which resulted in the MPCI retaining control in Bouake and Korhogo and extending its authority over the northern half of the country. The genesis of the coup is related to previous attempts, through the introduction of the concept of 'ivoirite”, to sideline Alasane Ouattara from contesting as President on grounds of not being a pure-blooded ivorien.

The Election Results and Issues Arising
Following a series of peace talks which resulted in a number of agreements being signed to return peace and democracy to the embattled state, elections were finally held in October 2010. The elections, though, could not produce an outright winner. According to article 36 Ivoirien constitution, a run-off had to be held which produced a winner in Ouattara. The results of the run-off were supposed to have been declared by the independent electoral commission within two days after counting the results. Quite dramatically, on the day the results were to be announced, Gbagbo's representative grabbed the results and tore it into shreds in the presence of the international press. Obviously, the results were not in Gbagbo's.

With the deadline for declaring the results past, a constitutional crisis was to be created which would have given opportunity for Gbagbo to play his tricks again. But the electoral commission boss was bold enough to leave the precincts of the electoral commission and to go to a safer place in a hotel to announce the results. Soon after the results were announced, Gbagbo went to the Constitutional Court which decided to turn the results around and declare Gbagbo winner. But the international community would have none of that. It began to give recognition to the government of Alhassan Ouattarra and to send him messages of congratulations. This included the UN itself, US, France, the EU and even the IMF.

What is ironic though is that the AU and ECOWAS did not and has not done so, so far. What the AU rather did, as usual, was to express 'deep concern' and to send Thabo Mbeki to engage in mediation between the two sides. The ECOWAS, on its part, also issued a statement, noting, inter alia, that "In the prevailing circumstances, ECOWAS strongly condemns any attempt to usurp the popular will of the people of Côte d'Ivoire and appeals to all stakeholders to accept the results declared by the electoral commission.”

Then, in a typical Mwai Kibabi style, Gbagbo quickly organised a swearing-in ceremony at which he took the opportunity to take a swipe at the international community and Ouattara. He is quoted, among others, by the BBC as saying, "You think that you can cheat, stuff ballot boxes and intimidate voters and that the other side won't see what is going on." This was a calculated act for Gbagbo to entrench himself in power and to establish his position as an indispensable negotiating power.

Interpretation of Gbagbo's Actions
According to the Lomé Declaration for an OAU Response to Unconstitutional Changes of Government, Gbagbo's action amounts to an unconstitutional change in government. The Declaration provides that an unconstitutional change in government is deemed to have occurred when one of the following events takes place:

i) military coup d'etat against a democratically elected Government;
ii) intervention by mercenaries to replace a democratically elected Government;
iii) replacement of democratically elected Governments by armed dissident groups and rebel movements;
iv) the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections.

The African Charter on Democracy, Elections and Governance, a treaty adopted by the 8th session of the African Union Heads of State and Government Assembly in 2007 but yet to come to force, adds a fifth criterion under its article 23(5). That is where '[a]ny amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.' This is interpreted to refer to acts of incumbents changing the terms of elections to cover a third or indefinite term in office. A good example is what happened in Niger when Mamadou Tandja doctored the constitution to enable him run for a third term and which resulted in his overthrow.

In the event of unconstitutional change of government, the AU is expected to issue a condemnation of the act, which amounts to non-recognition of governments in international law. Recognition in general refers to a unilateral act acknowledging the existence of a government or state by another state or government or international organization. Recognition by a state or government is a political act, which does not necessarily take into account the legal context in which a state or government comes into being. However, when it comes to international organizations, recognition follows certain laid down principles and norms agreed to by the organization, either in its constitutive treaty or another document, be it a declaration, decision or resolution. Thus non-recognition means that the government that purports to be in existence is not in existence, legally speaking.

The next step is for the AU and ECOWAS to recognize the government de facto. De facto recognition means that the new regime is still deemed illegitimate but because it is the one that is in control of the country at that moment, it needs some form of recognition while the situation is being monitored to see how the change in government would affect the peace and stability of the country. The AU and ECOWAS would then ask the government to return the country to constitution rule within a particular time-frame, that is, six months. An added rule is that the de facto regime should not take part in the elections it would organize to return the country to constitutional rule. This rule was applied to Moussa 'Dadis' Kamara in Guinea who took over reins of power in Guinea in December 2008 following the death of Lansana Conte in a coup d'etat.

When talking about recognition by states, usually two types of recognition may run concurrently. De facto recognition may be given to the government that usurped power while de jure recognition, or recognition according to law, is given to the ousted regime which may decide to form a government in exile. With time, de jure recognition may be withdrawn from the ousted regime and given to the de facto regime. This usually occurs where the de facto regime is able to attain effective control of the state, and the people generally succumb to, or approve of its authority; and, thirdly, where the new regime generally abides by international law and treaty and other obligations of the state. At this point, the ousted regime withers away.

The AU and ECOWAS, however, generally do not accord de jure recognition to ousted regimes. An exception was the case of Ahmed Tejan Kabbah who, though ousted in a military putsch by the Armed Forces Revolutionary Council, continued to be recognized as the legitimate government by the AU and ECOWAS while in exile in Guinea. In most case, however, the AU and ECOWAS will simply condemn the act and ask the new regime to return the country to constitutional rule. This approach, however, is considered a major weakness in AU and ECOWAS' position to use the tool of recognition to end unconstitutional changes in government in Africa and help entrench democracy and the use of the ballot box as the sole legitimate means to effect change in government.

Recognising the deposed regime de jure and even allowing it to represent the country before the organization will send a clear message that the regime was not wanted in power and that it has to pack bag and baggage and leave the scene.

But what has happened in Cote d'Ivoire is not a case of coup d'etat. It involves the refusal of an incumbent to give up power after losing an election. If the AU and ECOWAS reaction to coups d'etat has not proven effective, it has been worse with this scenario. There are two examples to guide us: the situation in Kenya and Zimbabwe.

In both situations, the call for returning the country to constitutional rule is rendered practically impossible as it is not able to resolve these questions, among others: Should the illegitimate government also be given 6 months to re-organise elections?; Would organising two elections within 6 months not pose too much of a burden for a developing countries of Africa's ilk?; Can there be guarantees that the de facto government will not be allowed to take part in the elections again?; Can there be guarantees that a puppet would not be groomed to take over?

Perhaps, without expecting such questions to arise or without anticipating such a scenario and without any clear-cut guidelines to follow, power-sharing was adopted as an ad hoc or stop-gap measure. One may call it ubuntu but it is certainly unAfrican to share power in that manner. We need to place the discussion in its proper legal context and simply describe it as an unconstitutional act and a slap in the face of the right of a people to self-determination. According to articles 31 and 32 of the Constitution of Cote d'Ivoire, sovereignty resides in the people and they determine, in the exercise of that sovereignty, the sole right to elect their own leaders through free and fair elections: Suffrage is universal, free, equal and secret. All Ivorian nationals of both sexes eighteen years old at least and possessing their civil and political rights, are electors within the conditions determined by the law (Article 33).

As decided in Sir David Jawara v Gambia, the African Commision on Human and Peoples' Rights noted in paragraph 73 of its decision

The military coup was therefore a grave violation of the right of Gambian people to freely choose their government as entrenched in Article 20(1) of the Charter. Article 20(1) provides: All peoples shall … freely determine their political status… according to the policy they have freely chosen.

We can extend the military coup in this regard to cover unconstitutional changes in government generally and conclude that what Kibaki did in Kenya, Mugabe did in Zimbabwe and Gbagbo has done in the Cote d'Ivoire are illegal and unconstitutional. In the case of Kenya, the constitution had to be amended to create the position of Prime Minister for Reila Odinga who should have been the legitimate leader of Kenya. A similar situation occurred in Zimbabwe.

Clearly, it is seen that Gbagbo is exploiting this loophole. And the scenario is likely to repeat itself in other countries if the loophole is not plugged now by the AU and ECOWAS.

Suggested Solutions
In light of AU failure to successfully deal with unconstitutional changes in government, particularly in relation to incumbents refusing to leave office, it is suggested that the Union changes its approach of granting de facto recognition to illegitimate regimes to granting de jure recognition to the legitimate government that.

This is a more effective way of using recognition as a tool to end unconstitutional changes in government in Africa and help entrench democracy and the use of the ballot box as the sole legitimate means to effect change in government. This way, the AU and ECOWAS would move away from seeing recognition as a formal acceptance of a fact to a process based on value judgments which reflect the emerging norm of democratic governance in Africa.

The AU should therefore team up with ECOWAS to give immediate de jure recognition to Alasane Ouattara, as other international organizations such as the UN and EU have done.

Also, it should impose immediate sanctions on the de facto regime, in this case, Laurent Gbagbo's regime, instead of waiting for over six months before doing so.

Furthermore, the de jure regime should be given the right to represent the country before any international for a, not just the ECOWAS and AU as it did in the case of Tejan Kabbah.

Where all else fails, it should follow the example it took in the Comoros Island where it organized the Operation Democracy in Comoros Islands and ousted the renegade Bacar who had organized some sham elections and refused to hand over power.

The AU, through its Peace and Security Council, should apply the provisions of the Protocol Relating to the Peace and Security Council of the African Union entered into force on 26 December 2003 as well as the African Charter on Democracy, Elections and Governance against the Gbagbo regime. Among others, it should resort to Article 14 which provides as follows:

2. State Parties shall take legislative and regulatory measures to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law.

3. State Parties shall cooperate with each other to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law.

'In accordance with the law' refers to the constitution of the country in question. And according to the Ivoirien Constitution of 2000, a Article 23duty is placed on every Every person living in the national territory is held to respect the Constitution, the laws and the regulations of the Republic.

The AU and ECOWAS should avoid the situation in Togo where Faure Eyadema was left to go scot free even though they condemned the usurpation of power by Eyadema as a 'military coup' and the constitution of Togo considers an abrogation of the Constitution through a coup as high treason. Thus, instead of letting the laws of Togo prosecute Eyadema and the military officers that brought him to power, they glossed over that and allowed him to stand and win the elections and thereby legitimize an illegitimate act.

It is worth noting that Cote d'Ivoire is a State Party to the African Charter on Human and Peoples' Rights and it has gone to the extent of recognizing the Charter as applicable in its Constitution by incorporating it in preamble to the Constitution, together with the 1948 Universal Declaration of Human Rights. The Charter should therefore be made to apply to Cote d'Ivoire. In this regard, the African Commission on Human and Peoples' Rights should immediately meet in an emergency session and issue a resolution condemning the act, as it has done in other situations of unconstitutional change in government.

The AU and ECOWAS and their relevant organs should make all things possible for the illegitimate regime not to obtain any form of legitimacy. They should make illegitimate governments ungovernable and all things possible to restore the legitimate regime as soon as possible. They should refer the case immediately to the UN Security Council for sanctions to be imposed on the Gbagbo regime. Every second wasted will allow Gbagbo to gain some foothold and some form of legitimacy. The reaction should be swift and decisions made, in line with the suggested made above, executed with alacrity.

Thabo Mbeki does not have the magic or the diplomatic acumen to pull a successful solution to the problem. His 'quiet diplomacy' approach to the Zimbabwe situation did not help and partly contributed to the power-sharing quagmire that Zimbabwe finds itself today. His previous attempts in the Ivorian crisis were not commendable either. One wonders what he might achieve in the end.

Hopefully, it will not be another power-sharing agreement. As noted above, the power-sharing agreement is unconstitutional, illegal and also not an effective, workable solution. It will rather plunge Cote d'Ivoire into more difficulties and may see an eventual secession of the northern half of the country should such an attempt be made to foist 'unity' on the people.

On the part of Ghana, it should not be caught sitting still and gaping in the air. The government took steps to condemn the atrocities that took place in Guinea and it is within its legitimate right and duty to issue a condemnatory note against Gbagbo and a congratulatory note to Ouattara and expressing its readiness to do business with his administration. Even if possible, it should be ready to provide sanctuary and a place for a government-in-exile to be established in Ghana.

*Dr. Kwadwo Appiagyei-Atua is Senior Lecturer, Faculty of Law, University of Ghana, Legon. He is a lecturer and consultant in Public International Law and International Human Rights.

Disclaimer: "The views/contents expressed in this article are the sole responsibility of Kwadwo Appiagyei-Atua, Dr. and do not necessarily reflect those of The Nigerian Voice. The Nigerian Voice will not be responsible or liable for any inaccurate or incorrect statements contained in this article."