Revolutionary Overthrow of Constitutional Orders in Africa

Chapter 8. Facing the Coup Challenge in Africa

95 Chapter 8 Facing the Coup Challenge in Africa What to do about coups Coups in Africa were at first thought to be a product of the colonial heritage or the result of military training or indoctrination by former colonial powers. This thinking was informed by the fact that early coups in Africa were carried out by soldiers trained in the military academies of Western powers: Sandhurst in Britain, West Point in the United States of America, and Saint Cyr in France. It was therefore easy to blame these military training schools for infecting the African soldier with the coup virus. “It seems that African armies modelled on the armies of Western Europe are particularly prone to attempting military coups. Perhaps armies of this type are unsuitable for African conditions.” 65 But independent African states quickly established their own military schools and for many decades now African soldiers are home trained. And yet coups are still well and alive in Africa. African soldiers are still in the thriving business of coup making. What must therefore be done about the coup in the African body politic, assuming coups are a bad thing and should be got rid of? Proscribing coups under positive law has not prevented military takeovers. Merely writing a ‘coup clause’ in a constitution does not guarantee much unless accompanied by a variety of other measures. Perhaps coups should be integrated in the basic concepts and principles of constitutional theory. Coups are no longer unusual in Africa. They have become the ‘normal’ way for the transfer and exercise of power.66 They now constitute a well-established state 65 Mazrui & Tidy, op. cit. p. 257. 66 Y Ghai, ‘Coups and Constitutional Doctrines: The Role of Courts,’ (1987) 58 (3) Political Quarterly 308. 96 practice that could probably well be regarded as having crystallized into custom and forming part of the customary international law of the African region. Constitutional theory cannot disregard them. It cannot insist on maintaining its own ordered coherence and treat coups as a mere pathology. The challenge for African students of constitutional law is to formulate a constitutional theory that integrates coups into its basic concepts and principles. One could set objective criteria under which a coup would be constitutionally permissible for the purpose of removing an unwanted government and allowing the early institution of another one through democratic processes. For example, provision could be made for lawful military intervention in any of the following circumstances: where an incumbent ruler rigs an election to stay in power or eliminates presidential term limits in a shameless attempt to institute a life presidency; where there is reliably attested systemic corruption; where there is gross and reliably attested repression; where an autocratic or totalitarian form of government has been instituted; where the government is incapable or unable to carry out development projects or to provide basic necessities such as water, electricity, sanitation, roads, schools and health facilities; where there is denial of basic human rights; or where there has been instituted or there is an attempt to institute an oligarchic or a hereditary succession at the helm of the state. Military intervention under any of these circumstances is the more necessary because in all but a few African countries the people are not able to change unwanted governments. Such controlled military intervention would be a significant contribution to constitutional development, democracy and good governance in Africa. It will eliminate unprincipled coups d’état in the continent. It will project the military as guardian of the general wellbeing of the people and significantly improve the governance of Africa. This bold proposal of course has a number of loose ends particularly relating to procedure. Listing circumstances which would invite military intervention is the easy part. But who will trigger that intervention, the military itself? What kind of evidence will be 97 sufficient proof of the existence of any of the enumerated circumstances and who will assess the standard and cogency of such evidence? What if the military fails to act even in the face of compelling evidence of the existence of any of the stated circumstances? These are hard questions. But they can be resolved creatively. For example, in Niger the Court ruled that the elimination of presidential term limits was unconstitutional. The ruling was disregarded. The call by political parties for military invention was in part based on this ruling and the military eventually gave ear and intervened. One...