The institutional human rights and constitutionalist framework in Africa has been constantly evolving through the Organization of African Unity’s history and transformation into the African Union. In the face of contemporary challenges in the form of coups, unconstitutional changes in government, and more, African policymakers must focus on grounding their policy within the normative framework of the Union
The African Union (AU) has since its establishment centred African people, human rights, the rule of law, and constitutionalism in its legal instruments and frameworks. This builds on the foundation of human and peoples’ rights that were instrumental to its predecessor—the Organisation of African Unity (OAU)—and its decolonial agenda. The journey from the OAU Charter to its successor, the AU, placed a spotlight on the need to embed human rights and good governance within the continent’s systems and structures. While the AU has succeeded in creating the normative framework to promote such notions, more action is needed to ensure that member states adhere to this framework.
The past sixty years have seen African institutions shift and adapt to evolving realities that stress the need for stable and inclusive democracies. The 2002 Constitutive Act of the AU is a critical turning point for the African intergovernmental structure because it ushered in a new system undergirded by mutual respect for human rights, justice, and the rule of law. Building on this, the AU has adopted instruments that seek to advance, respect, protect, and promote the rights and welfare of children, human and peoples’ rights, the rights of women, the protection and assistance of internally displaced persons in Africa, accountability for serious crimes, and dispute resolution. It has also taken a position against unconstitutional changes of government, as signalled first and foremost by Article 30 of the Constitutive Act, which states that “[g]overnments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.”.
From 1963 to 2024, a slow and gradual shift from Africa being a club of “big men” to a continent in which its people assert their rights and push for better governance can be observed. This has not been without its hurdles. For example, there has been a resurgence of unconstitutional changes of government—whether through coups d’état or efforts by incumbent leaders to cling to power. Significantly, between January 2010 and July 2023, there were over forty-five coups and attempted coups in numerous African countries. Twenty-two of these were in West Africa. Notably, half of the fourteen successful coups took place between August 2020 and July 2023 alone, with some countries like Burkina Faso and Mali experiencing multiple coups during this time. In addition, the continent is still plagued by conflicts (some intractable) in which gross human rights violations are committed with no concerted efforts to hold the perpetrators accountable.
1963 to 2002: Decolonization and African Solidarity
From 1963, African countries were united under the OAU—a continental body whose founding was rooted in the need to decolonize Africa and promote the unity, solidarity, and cooperation of African states. Inherent in these foundational goals was the need to defend sovereignty, territorial integrity, and independence, as well as promote international cooperation. The first seventeen years of the OAU were a spirited effort to accelerate the decolonization of Africa. With the majority of African countries unyoked from colonialism by 1980, the OAU shifted gears to adopt key instruments to steer the continent’s future. This included the adoption in 1981 of the African Charter on Human and Peoples’ Rights (entered into force in October 1986), the 1990 African Charter on the Rights and Welfare of the Child (entered into force in November 1999, and the 1998 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (entered into force in January 2004). All AU member states, except for Morocco, have ratified the African Charter on Human and Peoples’ Rights. This demonstrates a commitment, at least on paper, to advance human rights. Most African countries also include clear respect, protection, and promotion of human rights in their constitutions.
While a solid foundation to advance human rights was being laid, the reality in many African countries at the time reflected a failure to protect and promote these rights, the rule of law, and constitutionalism. This included a laissez-faire approach adopted by the OAU, which meant limited to no intervention in the affairs of its member states. Despite affirming foundational principles of human rights, the OAU did not proactively address horrendous violations in the continent or respond decisively to conflicts. This includes the 1994 genocide in Rwanda, and the post-independence wars in Algeria, Angola, Burundi, Central African Republic (CAR), Chad, Congo, Côte d’Ivoire, the Democratic Republic of the Congo (DRC), Djibouti, Liberia, Mali, Morocco, Mozambique, Niger, Nigeria, Sierra Leone, Somalia, Sudan, Uganda, and Western Sahara, in addition to the conflicts between Eritrea and Ethiopia, and Kenya and Uganda, among others. Furthermore, in the absence of mechanisms to address human rights violations and autocratic rule, the OAU became a “safe space” for many dictators during its time.
Already, before the adoption of the Constitutive Act of the AU in 2002, some African heads of state were concerned about unconstitutional changes of government. This included pronouncements in 1997 at the Summit in Harare, Zimbabwe, and a 1999 decision on unconstitutional changes of governments intended to reinforce respect for democracy, the rule of law, good governance, and stability. The decision affirmed international human rights instruments such as the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. This culminated in the Lomé Declaration in 2000 which now serves as the basis of the AU’s official stance on unconstitutional changes in government.
These shifts within the OAU recognised the many interconnected challenges on the continent, including political instability, popular uprisings, coup d’états, civil wars, slow development, and socioeconomic decline.
Shifting Gears: Two Decades of Revolutionizing Constitutionalism and Human Rights
Heralding a new era for Africa, the AU was established as the OAU’s successor in 2002. With a vision for peace, security, stability, democracy, good governance, and human rights, the AU’s framing has always been progressive, and its instruments are clear on what the organization intends to advance. This includes moving away from non-interference in the affairs of member states to “non-indifference” towards mass atrocities.
The Preamble of the Constitutive Act of the AU underscores the organization’s commitment “to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law”. Read together with, among others, the objectives of the AU in Articles 3(e) and 3(h) referencing human rights instruments; and guiding principles enshrined in Articles 4(m-o), naming the respect for democratic principles, human rights, the role of law, social justice, and the sanctity of life as founding principles; as well as Articles 3(f) and 4(c) emphasizing peace, security, and cooperation on the continent, the AU’s stance—at least on paper—is to depart from the indifference of the OAU before it.
The AU is thus empowered to intervene in the internal affairs of member states to protect human rights and maintain constitutional order. Article 4(h) of the Constitutive Act articulates that pursuant to a decision of the Assembly of Heads of State regarding “grave circumstances”, the AU has the right to intervene in the affairs of a member state to restore peace and stability. These grave circumstances are war crimes, genocide, and crimes against humanity.
Furthermore, the Peace and Security Council (PSC) Protocol clearly states that “observance of human rights and the rule of law” is “essential for the promotion of collective security, durable peace and stability, as well as for the prevention of conflicts”. This shift was informed by the previous gaps in the OAU’s infrastructure and practices in addressing key challenges arising from impunity for gross human rights violations, international crimes, and instability.
There is a growing consensus among African states on their obligation to respect, protect, and promote human rights as well as to intervene in situations to prevent genocide and crimes against humanity. However, recognition is only the first step. To back the AU’s legal tools, states and the AU must act according to these precepts. Norms and principles are only effective if they are systematically and effectively enforced.
The AU has the vision, but concerted effort is needed to make this vision a reality. The AU and its member states must ensure that its treaties and policies to advance good governance and protect human rights are actually implemented. The AU is doing something about this—albeit slowly. Over the past 20 years, the AU has established judicial, human rights, and legal institutions and organs. These include the African Commission on Human and Peoples’ Rights, African Court on Human and Peoples’ Rights, AU Commission on International Law, Pan-African Parliament, African Peer Review Mechanism (APRM), Economic, Social and Cultural Council, AU Advisory Board Against Corruption, and African Committee of Experts on the Rights and Welfare of the Child.
Still, the practice of human rights in Africa is varied. Though most African countries have legal frameworks and institutions to promote and protect human and peoples’ rights, most Africans still do not enjoy the rights enshrined in them.
Furthermore, continental institutions tasked with advancing human rights—particularly the African Commission on Human and Peoples’ Rights and the African Court—are under-resourced, with small financial allocations and mostly temporary staff. This means their ability to deliver on their mandate is negatively impacted. Moreover, when both institutions issue recommendations, decisions, or judgments, states do not always comply with them or implement the findings.
Nevertheless, there is some evidence of progress at the continental and national levels. This has included the promotion of democracy and good governance as fundamental to sustainable peace, security, and development.
Africa is Evolving
On paper, the AU has been very progressive in setting clear guidelines on how to deal with unconstitutional changes of government that include military coups and refusals to vacate offices on termination of terms in office. This has included the AU’s PSC pronouncing itself on unconstitutional changes of government, imposing sanctions, and calling for the restoration of constitutional order in several African countries. Since 2003, the AU has suspended 13 member states following coups or other unconstitutional changes of government. These include Central African Republic, Guinea-Bissau, Mauritania, Togo, Madagascar, Guinea, Côte d’Ivoire, Mali, Egypt, Burkina Faso Sudan, Niger, and Gabon. Most of these suspensions were lifted once constitutional order was restored, though, in some cases, countries have had recurrent coups during this time. At the time of writing, Burkina Faso, Gabon, Mali, Niger, and Sudan remained suspended.
Though challenges remain, including the inability to prevent unconstitutional changes in government, the existence of a normative framework guiding the AU’s position on these issues is itself a success. It reflects, at the very least, an institutional attempt to ensure that constitutionalism and the rule of law are respected.
At the national level, constitutionalism is increasingly a feature in AU member states, with several adopting constitutional reforms aimed at promoting rights, advancing multi-party democracy, and enhancing political freedom. This is reflected in assessments by the Ibrahim Index of African Governance, for example.
This index shows progress since 2014 (when the first phase of implementation of Agenda 2063 commenced) on questions of the rule of law and access to justice, however limited, and in some instances the overall picture shows a decline.
In 2024 (compared to 1964), there is multi-party democracy in many African countries. There is some consensus on presidential term limits, regular free and fair elections at the local and national levels, and separation of powers (with the required checks and balances) between the executive, the judiciary, and the legislature. The media reports freely and independently, civil society is growing and vibrant, and young people are taking on the challenge of peacefully addressing their countries’ woes. Still, challenges such as a rise in “constitutional coups”, popular uprisings that can and do turn violent, and military coups d’état, remain. These have the potential to stifle progress. The task is for the AU and its member states to pay close attention to developments, and adapt to the needs of 1.4 billion Africans by advancing inclusive development, human rights, and improved governance.
