Power-sharing in governments in Africa

This time its not Zimbabwe or Kenya, but Cote dIvoire. But certainly, the orchestrator of the plot is following the bad example set by the African Union (AU) and exploiting a loophole which still exists in spite of the negative experiences in Zimbabwe and Kenya, writes Kwadwo Appiagyei-Atua.

Following a series of peace talks which resulted in a number of agreements being signed to return peace and democracy to the embattled state (Cote d’Ivoire), elections were finally held in October 2010. The elections, though, could not produce an outright winner. According to article 36 of the Ivorian 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, Gbagbos representative grabbed the results and tore it into shreds in the presence of the international press. Obviously, the results were not in Gbagbos favour.??

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 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 the winner. But the international community would have none of that. It began to give recognition to the government of Ouattarra and to send him messages of congratulations. ??What is ironic though is that the AU and ECOWAS did not send messages of congratulations. What the AU did, as usual, was to express deep concern and to send Thabo Mbeki to engage in mediation between the two sides.

ECOWAS, on its part, also issued a statement, noting that, In the prevailing circumstances, ECOWAS strongly condemns any attempt to usurp the popular will of the people of Cte d’Ivoire and appeals to all stakeholders to accept the results declared by the electoral commission.??

Then, in 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.??

Gbagbos actions

According to the Lom Declaration for an Organisation of African Unity Response to Unconstitutional Changes of Government, Gbagbos actions 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:??

? a military coup detat 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.

? the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections.??

What has happened in Cote dIvoire is not a case of a coup detat. It involves the refusal of an incumbent to give up power after losing an election. If the AU and ECOWAS reaction to coups detat 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 a return to constitutional rule is rendered practically impossible as it is not able to resolve the following questions, among others:

Should the illegitimate government also be given six months to re-organise elections? Would organising two elections within six months not pose too much of a burden for a developing country? 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 un-African 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 dIvoire, 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. ??What Kibaki did in Kenya, Mugabe in Zimbabwe and now Gbagbo in the Cote dIvoire was and is illegal and unconstitutional. In the case of Kenya, the constitution had to be amended to create the position of Prime Minister for Raila Odinga, who should have been the legitimate leader of Kenya.

A similar situation occurred in Zimbabwe. Clearly, 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 AU changes its approach of granting de facto recognition to illegitimate regimes to granting de jure recognition to the legitimate government.??

The AU should therefore team up with ECOWAS to give immediate de jure recognition to Ouattara, as other international organisations such as the UN and EU have done.?? It should also impose immediate sanctions on the de facto regime, in this case, Laurent Gbagbos regime, instead of waiting for over six months before doing so.??

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.??

Among others, it should resort to Article 14 which provides as follows:??

? . 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.?

? . 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 Ivorian Constitution of 2000, a duty is placed on every person living in the national territory to respect the constitution, the laws and the regulations of the republic.??

The AU and ECOWAS – and their relevant organs – should do everything possible not to let the illegitimate regime obtain any form of legitimacy. They should refer the case 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 suggestions made above, executed with alacrity.??

Thabo Mbeki does not have the magic or the diplomatic acumen to find a successful solution to the problem. His quiet diplomacy approach to the Zimbabwean situation did not help and partly contributed to the power-sharing quagmire that Zimbabwe finds itself in today. His previous attempts in the Ivorian crisis were not commendable either. ??

Hopefully, there 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 dIvoire into more difficulties and may see an eventual secession of the northern half of the country.? ?

– Dr Kwadwo Appiagyei-Atua is a senior lecturer in the Faculty of Law at the University of Ghana, Legon. The article above is an abridged version of a much longer treatise by Dr Appiagyei-Atua on the new phenomenon of power-sharing governments in Africa.