Presentation By Paul Ejime
AT THE 2023 INTERNATIONAL CONFERENCE ORGANISED BY THE ECOWAS COURT OF JUSTICE
BANJUL, THE GAMBIA, 22 – 25 MAY 2023
Issues for Consideration
· Parameters for Free, Fair and Transparent Elections under the Protocol on Democracy and Good Governance.
· Elections Monitoring and ECOWAS Assistance to Member States.
· Factors responsible for the undermining of Free, Fair and Transparent Elections.
· Factors Responsible for the subversion of Constitutional Democratic Order.
· How to Hold Member States accountable for their Treaty Obligations.
· Sanctions Regime for Unconstitutional Change of Government.
Political scientists have no consensus on what constitutes a “free, fair and transparent election.” Indeed, some argue that there is no free or perfect election, and that fairness and transparency are relative terms. Instead, many scholars prefer to talk about an election’s acceptability, credibility, or integrity.
Even so, there is a general agreement on the fundamental principles based on the 1948 Universal Declaration of Human Rights in relation to election as enshrined in most national constitutions.
According to Article 21 of that Declaration: “Everyone has the right to take part in the government of his (or her) country, directly or through freely chosen representatives.” It goes further: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
The electoral normative frameworks of many countries or regional organizations, such as the African Charter on Human and People’s Rights, the Africa Union’s Declaration on the Principles Governing Democratic Elections and the 2001 Supplementary Protocol on Democracy and Good Governance of the Economic Community of West African States (ECOWAS), all derive their legal basis from the Universal Declaration on Human Rights.
There is also the yet-to-be ratified 2014 Malabo Protocol expanding the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to cover crimes under international law as well as transnational crime, with provision for the prosecution of politicians, soldiers and mercenaries who subvert constitution rule in Africa.
This paper examines the Parameters of Free, Fair and Transparent Elections as an essential source of Conflict resolution in the ECOWAS region within the context that elections are the sine qua non of multi-party democracy. Yet, without other important elements, such as constitutional term limits, protection of fundamental human and minority rights, multi-party system, political inclusivity, judicial independence, separation of powers enshrined in the Constitution, accountability and transparency, economic freedom and the rule of law, elections by themselves cannot guarantee freedom or good governance.
After all, dictatorships do hold elections. But as also noted by the Democracy Web, on the Insufficiency and abuse of Election, “Dictatorships make evident the notion that the holding of an election, in and of itself, is insufficient to establish or sustain democracy.”
Holding periodic elections under “different democratic governments” in West Africa, without the other vital ingredients of democracy, has not and will not guarantee good governance. Instead, this has become the trigger and driver of conflicts and instability on the African continent, especially in West Africa, which has been labelled the “coup zone,” given the constant military incursions into politics in the region.
This paper will also examine how to hold ECOWAS member States accountable for their Treaty Obligations and the application of Sanctions Regimes to wayward administrations or individuals.
Definition of an Election
An Election is a process and a multi-stakeholder enterprise. It is considered the sine qua non of multi-party democracy. For this presentation, let us consider a practical definition by an authority, who is described as “an encyclopaedia” on African elections.
An election “is a contest among political parties and candidates to occupy positions of authority in a country; a contest mediated by an electoral commission; and… decided by the votes of the electorate,” (K. Afari-Gyan, 2023).
Other key stakeholders in the electoral process are the electoral commission; security agencies tasked with electoral security and handling election-related cases; civil society organizations; the government in power, which provides money for the electoral process; the courts, responsible for adjudicating electoral matters, the media, which provides platforms for the dissemination of election information, such as voter registration, the electorate, and development partners, who provide financial or technical support.
For the electoral process to succeed, every actor or stakeholder must play their part under defined rules of engagement at all stages of the electoral cycle – before, during, and post-election period.
However, no matter how free, fair, and transparent, elections alone cannot guarantee freedom, democracy, or good governance. On the contrary, elections have been a significant source of violent conflicts and political instability in the ECOWAS region.
While political scientists and constitutional experts differ on what constitutes a “free, fair and transparent election,” there is an agreement on some fundamental requirements which derive from the 1948 Universal Declaration of Human Rights and similar internationally accepted instrumentalities.
“Everyone has the right to take part in the government of his (or her) country, directly or through freely chosen representatives,” notes Article 21 of the 1948 Universal Declaration: It further states: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Furthermore, the normative frameworks of many regional organizations, such as the African Charter on Human and People’s Rights, the Africa Union’s Declaration on the Principles Governing Democratic Elections in Africa, and the ECOWAS 2001 Supplementary Protocol on Democracy and Good Governance, all derive their legal basis from the Universal Declaration on Human Rights.
However, experiences in the ECOWAS region have shown that without other essential elements of democracy, such as constitutional term limits, protection of fundamental human and minority rights, multi-party system, political inclusivity, judicial independence, separation of powers enshrined in the Constitution, accountability and transparency, economic freedom and the rule of law, elections by themselves have become recipes for conflicts and political instability.
ECOWAS was set up on the 28th of May 1975 through the Treaty of Lagos to foster economic development and regional integration. But the organization faced peace and security challenges shortly afterwards, beginning with the Liberia civil war in 1989.
While economic development was its core objective, reality informed the injection of peace and security into the regional integration agenda, starting from 1990 when the Authority of Heads of State and Government directed the transfer of the responsibility for ECOWAS affairs to the Ministries of Foreign Affairs or Regional Integration followed by the transformation from an Executive Secretariat to a Commission in 2007 and Vision 2050 as the latest regional aspiration.
Key Normative Frameworks:
- A politico-military Standing Mediation Committee and the ECOWAS Ceasefire Monitoring Group (ECOMOG) were created in 1990 to spearhead regional interventions and these facilitated the end of the civil wars in Liberia and Sierra Leone followed by a common stance on political governance. The ECOWAS Community Court was also established through another protocol in 1990 and all these measures were instrumental in allowing the Organisation to assume the dynamic posture, which it had projected until recently.
- The Authority’s Declaration on Political Principles in 1991 also reaffirmed the Community’s commitment to democracy and a free market. To achieve uniformity on the roadmap to integration, the ECOWAS Revised Treaty in 1993 created the Community Parliament and other institutions, conferring supranational status on the regional Organization.
- In December 1999, the ECOWAS Authority enacted the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security (or The Mechanism), to guide the construction of regional peace and security architecture. This instrument, which inspired the adoption of a similar Mechanism by the African Union several years later, has provisions for the Mediation and Security Council and the Council of the Elders/Wise as additional tools for conflict prevention, mediation, and resolution towards consolidating peace and security in the region.
- The Supplementary Protocol on Democracy and Good Governance was adopted in 2001 as an integral part of The Mechanism setting minimum constitutional convergence criteria for ECOWAS membership based on shared values of democracy and free market, separation of powers, popular participation, the democratic control of the armed forces, guarantees of fundamental freedoms and, especially ‘zero tolerance’ for power obtained or maintained by unconstitutional means.
- The ECOWAS Conflict Prevention Framework (ECPF), adopted in 2008, and the Monrovia Declaration of 2010, were the other instruments adopted to strengthen the ECOWAS peace and security architecture, emphasizing preventive diplomacy and proactive mediation responses.
To ensure compliance with the normative frameworks and institutional instruments, ECOWAS leaders had maintained a principled stance with a strong political will, applying enormous pressure to check wayward administrations through a combination of sanctions and preventive diplomacy before reversals of the past two decades.
As part of its conflict prevention framework, ECOWAS also has an Early Warning System under a directorate that collaborates with state and non-state actors, civil society organizations and NGOs, to monitor and report threats to peace and security in the region.
Using the carrot and stick strategy, ECOWAS was able to suspend three member States – Guinea, Niger, and Cote d’Ivoire – between 2009 and 2010 for violating the Supplementary Protocol. With the cooperation of the African Union, the United Nations and other partners, the Organization also restored constitutional order and legality in Guinea, Niger, and Cote d’Ivoire, among others.
Parameters for Free, Fair and Transparent Elections under the Protocol on Democracy and Good Governance.
The 2001 Supplementary Protocol on Democracy and Good Governance has 50 Articles. The protocol has no definition of what constitutes free, fair, and transparent elections, but the articles deal with sundry issues ranging from fighting corruption to poverty alleviation and social dialogue: the role of stakeholders during elections, political inclusivity, protection of women and children’s rights and sanctions against non-compliance with provisions of the protocol.
SECTION I: “CONSTITUTIONAL CONVERGENCE PRINCIPLES” OF THE PROTOCOL
Article 1 states the constitutional principles shared by all Member States:
a) Separation of powers – the Executive, Legislative and Judiciary. – Empowerment and strengthening of parliaments and guarantee of parliamentary immunity. – Independence of the Judiciary: Judges shall be independent in the discharge of their duties. – The freedom of the members of the Bar shall be guaranteed, without prejudice to their penal or disciplinary responsibility in the event of contempt of court or breaches of the common law.
b) Every accession to power must be made through free, fair, and transparent elections.
c) Zero tolerance for power obtained or maintained by unconstitutional means.
d) Popular participation in decision-making, strict adherence to democratic principles and decentralisation of power at all levels of governance.
e) The armed forces must be apolitical and must be under the command of a legally constituted political authority; no serving member of the armed forces may seek to run for elective political office.
f) Secularism and neutrality of the State in all matters relating to religion; freedom for each individual to practise, within the limits of existing laws, the religion of his/her choice everywhere on the national territory. The secularism shall extend to all parts of the State but shall not deprive the State of the right to regulate, with due respect to human rights, the different religions practised on the national territory or to intervene when law and order break down as a result of any religious activity.
g) The State and all its institutions belong to all the citizens; therefore, none of their decisions and actions shall involve any form of discrimination, be it on an ethnic, racial, religion or regional basis.
h) The rights set out in the African Charter on Human and People’s Rights and other international instruments shall be guaranteed in each of the ECOWAS Member States; each individual or organisation shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution established within the framework of an international instrument on Human Rights, to ensure the protection of his/her rights.
i) Political parties shall be formed and shall have the right to carry out their activities freely, within the limits of the law. Their formation and activities shall not be based on ethnic, religious, regional, or racial considerations. They shall participate freely and without hindrance or discrimination in any electoral process. The freedom of the opposition shall be guaranteed. Each Member State may adopt a system for financing political parties, in accordance with criteria set under the law.
j) The freedom of association and the right to meet and organise peaceful demonstrations shall also be guaranteed.
k) The freedom of the press shall be guaranteed.
In the absence of a court of special jurisdiction, the present Supplementary Protocol shall be regarded as giving the necessary powers to common or civil law judicial bodies.
SECTION II ON ELECTIONS
1. No substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of political actors.
2. All elections shall be organised on the dates or at periods fixed by the Constitution or the electoral laws.
3. Member States shall take all appropriate measures to ensure that women have equal rights with men to vote and be voted for in elections, to participate in the formulation of government policies and the implementation thereof and to hold public offices and perform public functions at all levels of governance.
4. The bodies responsible for organising the elections shall be independent or neutral and shall have the confidence of all the political actors. Where necessary, appropriate national consultations shall be organised to determine the nature and the structure of the bodies.
5. Each ECOWAS Member State shall ensure the establishment of a reliable registry of births and deaths. A central registry shall be established in each Member State.
5.a. Member States shall cooperate in this area with a view to exchanging experiences and where necessary providing technical assistance to each other in the production of reliable voters’ lists.
6. The voters’ lists shall be prepared in a transparent and reliable manner, with the collaboration of the political parties and voters who may have access to them whenever the need arises.
7. The preparation and conduct of elections and the announcement of results shall be done in a transparent manner.
8. Adequate arrangements shall be made to hear and dispose of all petitions relating to the conduct of elections and announcement of results.
9. Member States shall use the services of civil society organisations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence.
10. The party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law.
11. All holders of power at all levels shall refrain from acts of intimidation or harassment against defeated candidates or their supporters.
Similarly, Article 19 says: “The armed forces and police shall be non-partisan and shall remain loyal to the nation. The role of the armed forces shall be to defend the independence and the territorial integrity of the State and its democratic institutions.” It further states that “the police and other security agencies shall be responsible for the maintenance of law and order and the protection of persons and their properties.”
Article 22 states: “The use of arms to disperse non-violent meetings or demonstrations shall be forbidden. Whenever a demonstration becomes violent, only the use of minimal and/or proportionate force shall be authorised; All cruel, inhuman and degrading treatment shall be forbidden; The security forces, while carrying out investigations, shall not disturb or arrest family members or relations of the person presumed guilty or suspected of having committed an offence.”
Article 32 expressly states: “Member States agree that good governance and press freedom are essential for preserving social justice, preventing conflict, guaranteeing political stability and peace and for strengthening democracy.”
Finally, Article 33: commits member States to “recognise that the rule of law involves not only the promulgation of good laws that are in conformity with the provisions on human rights, but also a good judicial system, a good system of administration, and good management of the State apparatus.”
Elections Monitoring and ECOWAS Assistance to Member States
SECTION III of the 2001 ECOWAS Supplementary Protocol on Democracy and Good Governance deals with Election Monitoring and ECOWAS Assistance. It has eight Articles, with Article 11 complementing provisions of Article 42 of the 1999 Protocol relating to the Mechanism on Conflict Resolution, Management, Peacekeeping and Security (or The Mechanism).
Article 12:1 says: “At the request of any member State, ECOWAS may provide assistance in the conduct of any election,” while Article 12:2, adds: “Such assistance may take any form.” Article 12:3 says: “Also, ECOWAS may dispatch a monitoring team to the country concerned for the purpose of monitoring the elections.”
The ECOWAS Commission’s engagement with member States in election assistance takes the following forms:
- Fact-finding missions
- Election observation missions
- Situation Room on Election Day
- Provision of financial assistance
- Provision of logistic assistance
- Provision of technical assistance
- Security missions, and
- Follow-up Missions between elections
The ECOWAS Network of Electoral Commissions (ECONEC)
To further improve the management, quality and credibility of regional Elections, the ECOWAS Commission, and the Election Management Bodies (EMBs) in the region set up the ECOWAS Network of Electoral Commissions, ECONEC-RESAO, as an NGO in February 2008. As the umbrella organisation of EMBs in West Africa, the network promotes free and credible elections and envisages a region where free, fair, and credible elections are an integral part of the democratic process through, peer support, information, and experience-sharing towards the ultimate harmonization of electoral legal frameworks.
The ECOWAS Commission’s assistance to Member States on electoral matters is predicated on three (3) legal bases, namely:
- The ECOWAS Supplementary Protocol on Democracy and Good Governance,
- The ECOWAS Conflict Prevention Framework, and
- The ECOWAS Handbook on Election Observation
The most widely publicized and visible activity in electoral assistance are the deployments of Short-term and Long-term Election Observation Missions (STOs and LTOs) to member States holding elections.
These missions have a two-fold objective, namely:
- To ensure that international standards of free, fair, and credible elections are adhered to, thus guaranteeing that citizens’ human rights to select their leaders freely are respected.
- To ascertain the credibility of the results declared by electoral management bodies.
- Short-term election observation missions have been systematically deployed to every regional presidential election from 2005 except for the 2011 Presidential election in The Gambia, followed by the deployment of Long-term Observers from 2014.
- Fact-finding and Follow-up Missions involve consultations with stakeholders to ascertain challenges and gaps on compliance and areas of assistance between elections.
Challenges to EOMs include:
- Insufficient funding
- Inadequate staffing
- Need for improvement in the quality of nominees from member States. Some of them need more professional skills and sufficient knowledge of elections.
- Improvement in the quality of EOM Reports and a radical departure from the current predictable and pro-establishment style.
While electoral administration and processes in the ECOWAS region have significantly evolved, there is still a need for improvements and professionalism.
Electoral Commissions and other stakeholders should also keep up to date with the introduction of technology in elections.
Factors responsible for the undermining of Free, Fair and Transparent Elections and the Subversion of Constitutional Democratic Order
- It is important to note that the same stakeholders who facilitate free, fair, and transparent elections can undermine the process by their conducts or disposition. The stakeholders are governments, the electoral umpires, political parties and candidates, civil society organizations, the judiciary, media, the electorate, and development partners.
- Governments in the ECOWAS region play a critical role in elections. They are expected to provide funding; a conducive political and socio-economic environment; an impartial legal framework, and a level playing field for elections to be free, fair, and transparent.
- However, the partisan disposition of many governments, including by rigging of election to obtain or retain power; control of the Parliaments and the Judiciary; altering the national constitutions and electoral laws; narrowing the democratic space, human rights violations; applying undue pressure on the electoral umpire and clamp down on the opposition and the media, combine to undermine free, fair, and transparent elections in the region.
- Electoral Commission
- Many electoral commissions in the ECOWAS region are only independent or autonomous in name. Most of their officials are appointed by the government and are therefore unable to resist political pressure from the government, political parties, or powerful/wealthy candidates. The manipulation of the electoral process with the connivance of polling officials who compromise their positions is also very common, with adverse impact the credibility of elections.
- Security Agencies
- Security agencies including the armed forces and the police are supposed to be neutral during elections since they must owe allegiance to the State, not government officials. But in most cases, the government and politicians exercise undue influence or compromise security agencies. There are cases, whereby security agents on election duties look the other way when electoral frauds are committed. These practices undermine free, fair, and transparent elections in the ECOWAS region.
- The Parliament
- The responsibility of parliaments in multiparty democracy is to make laws in the public interest. But while national constitutions and electoral laws envisage the separation of powers among the three arms of government – the Executive, Legislature, and the Judiciary – it is common for the executive arm of government to control the legislative arm. This usually starts with the election of pro-government MPs who are often beholden to the government in power. This is a recipe for flawed elections and bad governance.
- The Judiciary
- The Judiciary, which is supposed to be the last hope of the citizens, now plays a more prominent, and sometimes controversial and disruptive role in undermining the electoral process. There is a growing perception that the political class now buy court judgments with the result that the outcomes of some major elections are now determined in the courtrooms instead of the ballot box.
- Civil Society Organizations
- Civil society, community-based organizations, and Non-governmental Organizations are supposed to play crucial non-partisan roles in ensuring free, fair, and transparent elections. But in reality, many are comprised and now work for the government or political interests, thereby undermining the electoral process in many ECOWAS member countries.
- The media plays both positive and negative roles that can impact the outcome of elections. The advent of New or social media has further complicated the situation. While the media can help sensitise the electorate and provide platforms for political actors to convey their messages to various audiences during elections, the media can also be a purveyor of fake news, misinformation and disinformation which could undermine the electoral process and lead to political conflicts.
- The Electorate
- Citizens as voters are indispensable players in national elections. Without voters there will no election and at the same time, they must play their civic/constitutional duties of registering and turning up to vote on election day. They must also be sufficiently knowledgeable, politically to resist selling their votes or being used by politicians as thugs to disrupt or undermine the electoral process. The citizens must hold elected officials to account.
- Development Partners
- Development partners play a major role in providing financial and technical support for the conduct of elections as part of contributions to building and entrenching democracy in West Africa. But experience has shown that some of them and their home countries go beyond their remit by trying to influence electoral outcomes in the region. The activities of these partisan partners undermine rather than facilitate the electoral processes in the region.
- Money and Transactional Politics
- Vote-buying is an age-long phenomenon. The influence of money has taken a troubling dimension in West African politics. Politicians capitalize on the pervasive poverty and illiteracy to buy votes by compromising the electoral system using their agents and also bribing polling officials.
- Additionally, the undermining of free, fair, and transparent elections and what many call “Constitutional or Political Coups,” have led to instability and the resurgence of military incursions in politics in the ECOWAS region.
The root causes of conflicts or resurgence of military incursions include:
- Alteration of national constitutions and electoral laws, authoritarianism; tenure elongation syndrome; flawed elections resulting in electoral violence, heightened insecurity and socio-economic hardships, unemployment, inability, or failure of Member States to protect or respect human rights; or fulfil their Treat obligations and breakdown of the rule of law.
- Political godfatherism, state/institution capture, and “personalisation of democracy” are also real and present challenges to the conduct of credible elections.
- Particularly telling is the lack of political will by the leaders. For instance, under the guise of adhering to national constitutions which they alter at will, some ECOWAS leaders manipulate the electoral processes or rig elections to obtain or sustain themselves in power. They control parliaments in their countries, silence political opponents and the judiciary, civil society organizations, with the media and citizens under severe strictures or emasculated.
- The inability or failure of governments to respect the provisions of the relevant regional instruments listed above concerning the parameters of free, fair and transparent elections and the tendency by some leaders to undermine the same instruments by engaging in illegal alteration of constitutions and electoral laws, corruption and nepotism; incitement of supporters, as well as the disposition of politicians, who see elections as “do-or-die” affair, and their refusal to concede electoral defeats, are all elements of bad governance, which have all combined to subvert or undermine the constitutional order in many ECOWAS member countries.
While the resurgence of military incursions in West Africa is a symptom of the bad governance malaise. But unfortunately, undue attention is usually paid to military coups as the sole culprit.
How to hold Member States Accountable for their Treaty Obligations
There is no lack of legal instruments to hold ECOWAS member States accountable for their Treaty Obligations, ranging from the 1991 Declaration on Political Principles to the Monrovia Declaration of 2010.
- Regional leaders should muster the political will to make hard decisions, such as calling their errant colleagues to order. Pro-people, visionary and dynamic leadership with patriotic zeal are required. For instance, ECOWAS has used the Supplementary Protocol on Democracy and Good Governance to force a former President in the Niger Republic to abandon his plan to dissolve the national parliament in 2009.
The organization also declined to send election observers to the 2011 presidential election conducted by now-deposed President Yahya Jammeh of the Gambia. It refused to recognise the result of that poll, citing non-compliance with the regional instrument. Had the international community supported that ECOWAS principled stance, the debacle of the 2016 presidential election and Jammeh’s eventual exile would have been avoided.
- More importantly, State, and non-state actors, including the electoral umpires, parliament, Judiciary, political parties, civil society organizations, the media, and the electorate, all have critical roles to play in the collective efforts to hold governments of member States accountable.
As often stated by Prof Mahmood Yakubu, Chair of Nigeria’s Independent National Electoral Commission (INEC): “It is better and more cost-effective” to leverage existing instruments to achieve credible elections “instead of deploying ECOMOG (the regional peace force) to tackle the fall-out of flawed elections.”
Sanctions Regime for Unconstitutional Change of Government
Also, appropriate sanctions must be applied to serve as a deterrent against impunity, with consequences for every violation of existing instruments and legal texts.
- Consistent and unbiased application of sanctions:
- ECOWAS’ recent suspension of the membership of Mali, Guinea and Burkina Faso and the targeted sanctions against the coup leaders and their family members as part of efforts to hasten the return to constitutional order in the three countries after military coups are consistent with provisions of the Supplementary Protocol on Democracy and Good Governance, especially the “zero-tolerance” for obtaining or maintaining power by unconstitutional means. But what about the events that led to the military coups, such as tenure elongation, election rigging, corruption, government’s inability to stop insecurity or end socio-economic hardships; human rights violations and illegal alteration of national constitutions and electoral laws, which are also frowned upon by the same Protocol?
- ECOWAS member States should ratify, domesticate, and implement the Malabo Protocol expanding the ACJHR jurisdiction to cover crimes under international law as well as transnational crime.
- While military coups remain condemnable and undemocratic, it cannot be one set of rules for the errant political leaders who carry out “political and constitutional coups,” and another for military coup plotters.
- Early warning tools and provisions of existing protocols should be used to recalibrate the regional peace and security architecture, emphasizing the need for proactive preventive diplomacy, mediation, and conflict management strategies. ECOWAS should call out political leaders who contravene regional instruments instead of always waiting until the escalation of conflicts or when the military strikes to react.
- There must be a rule of thumb implementation of the various instruments and protocols. However, the imposition of sanctions, as a last resort after the exhaustion of comprehensive consultations and mediation, can only be effective when they are part of integrated mediation interventions, based on consistency, impartiality, sincerity and with all parties acting in good faith.
- Review of the Protocol on Democracy and Good Governance
- To strengthen regional peace and security and democratic governance, ECOWAS leaders have called for an urgent review of the Supplementary Protocol on Democracy and Good Governance, perhaps to insert term limitation for the presidency. Reviewing legal instruments for greater efficiency and effectiveness is a good idea. However, the major problem may not be with the review or introduction of new protocols but with implementing existing instruments effectively.
- New Regional Force with Clearer Mandate
- ECOWAS leaders have also suggested the establishment of a new regional force to intervene, where necessary, whether in the area of security, terrorism or to restore constitutional order in member States.
- Meanwhile, experience from the two ECOWAS military Missions in Guinea Bissau and the Gambia show the difficulty in funding such regional forces. Also, the fact that the existing ECOWAS Standby Force cannot be operationalized as envisaged, is further testimony to the challenge and the gap between intention and implementation of regional decisions.
- Going by recent experiences in the so-called advanced or emerging democracies, while free, fair, and transparent elections are a sine qua non for multi-party democracy, they do not necessarily guarantee good governance or freedom due to electoral “insufficiency and abuse. However, there are basic minimum requirements for elections to be considered free, fair, transparent, or credible.
- These requirements are outlined in internationally accepted instruments such as the 1948 Universal Declaration of Human Rights, the African Charter on Human and People’s Rights, and the African Union’s Charter on Democracy, Good Governance.
- At the ECOWAS level, the 1999 Protocol Relating to the Mechanism on Mediation, Conflict Management, Resolution, Peace, and Security (or the Mechanism) and the 2001 Supplementary Protocol on Democracy and Good Governance are the binding legal texts that govern electoral processes in member States.
- There are also the 2008 ECOWAS Conflict Prevention Frameworks (ECPF) and the Monrovia Declaration of 2010. Unfortunately, these instruments are not respected or are observed in breach.
- An election as a sine qua non for multiparty democracy, is a process and a multi-stakeholder enterprise that requires every stakeholder to play their parts.
- Subversion of constitutional order including by military takeover of government is an aberration, but there cannot be one set of rules for errant political leaders who carry out “political and constitutional coups,” and another for military coup plotters. Early warning tools and provisions of existing protocols/instruments should be used to recalibrate the regional peace and security architecture. Similarly, all efforts should be made to ensure that elections are free, fair, and credible, coupled with proactive, preventive diplomacy, mediation, conflict management and resolution, with integrated results-oriented strategies driven by consistency, neutrality, inclusivity and in the spirit of regional integration.
- Regional leaders should muster the political will to respect and implement existing legal instruments, call their wayward colleagues to order, and member States held accountable to their treaty obligations.
- ECOWAS member States should ratify, domesticate, and implement the Malabo Protocol expanding the ACJHR jurisdiction to cover crimes under international law as well as transnational crime. This will facilitate the prosecution of deviants including political adventurers, soldiers, and mercenaries, who subvert the constitutional order.
Paul Ejime, an author, and Global Affairs Analyst, is a Consultant on Strategic Corporate Communication, Media Development and Governance Issues, including Peace & Security and Elections
Thank you for your Attention! Merci Beaucoup! Muito Obrigado!
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