Decisions of consequence from the 28th AU summit: Part I AUC Chair Elections

The outgoing Chairperson of the AU Commission (AUC) told the packed audience at Mandela Hall that Ethiopia is not a sovereign country like other, all of us (Africans) have a stake in the city of Addis Ababa. At no other time is this true than at the time of the AU summit. The citizens of the city take a back seat; their roads are blocked or otherwise chocked and access to some places made beyond their reach.

With the 28th AU summit having ended and Addis resuming its routine, the time comes for reflecting on whether the inconvenience to which Addis Ababan’s were subjected was worth the trouble. The AU Assembly took 18 decisions, two declarations and two resolutions. Going to the summit, the major issues on the agenda of the summit were three: the consideration of the report of President Paul Kagame of Rwanda on the reform of the AUC, the election of the members of the AU Commission and the consideration of Morocco’s request for admission to the AU.

Although they are not of the same weight, the debates and the decision on these three major issues are of consequence to the AU.

Election of the AU Commission leadership

The elections for the position of the chairperson and the deputy chairperson of the AU was held on 30 January 2017. The process started at 4:30 with distribution of the voting keypads and reminder by the Office of the Legal Counsel of the AU on the procedures to be followed in the conduct of the elections.

The AU assembly first conducted the election of the Chairperson. There were five candidates vying for this position. Two of them, Foreign Minister of Botswana Moitoiun Pelonomi Venson and  Equatorial Guinea’s Foreign Minister Agapito Mba Mokuy, run in the unsuccessful elections held in Kigali Rwanda during the 27th AU summit. The three new candidates were Chad’s Moussa Faki Mahamat, Senegal’s Abdoulaye Bathily, and Kenya’s Foreign Minister Amina Mohamed.

The two frontrunners for the election were Mohamed of Kenya and Mahamat of Chad. While the candidates that run during the Kigali summit lost from the support they had in Kigali, Bathily, despite his qualities and credentials, had the disadvantage of the unfavourable perception towards his country.

Although Mohamed led the first round with 16 votes followed by Mahamat’s 14 votes, Mahamat sustained the lead he received during the second round when he received 21 votes to Mohamed’s 15 votes. At this stage, while Bethily and Venson received 8 votes each, Equatorial Guinea’s Mokuy had only two votes.

In the third round, Bathily lost five votes from the earlier round to both Mahamat and Mohamed. While Mahamat added three more votes from the second round, Mohamed added two. Mokuy’s position did not change.

With none of the candidates receiving the required 2/3rd majority, after the third round the rules require that the candidates with the least votes were eliminated, leaving for the next round only Mahamat and Mohamed.

In the fourth round, Mohamed took the lead from Mahamat when they received 26 and 25 votes respectively. There were three abstentions in this round. During the fifth round both Mohamed and Mahamat received one additional vote each from those who abstained during the fourth round.

The election reached another elimination stage during the six round. In what proves to be a decisive phase of the election, Mahamat once again took the lead from Mohamed when two countries switched their votes from Mohamed leading to her elimination from the race.

The question of the countries who switched their votes has since become a matter of some debate in the East Africa region with some countries, particularly Uganda forced to issue statement denying reports that they did not back Mohamed. Unless they indicate how they voted, it is however difficult to tell the identity of the countries who switched their votes away from Mohamed.

In the final round, Mahamat won the election with 39 votes and becoming the next Chairperson of the AUC. Following his swearing in, Mahamat assured his competitors that he would call on their support and active participation in the work of the AU.

The elections for the position of the Deputy Chairperson had three candidates. This election run only for two rounds. The election would have ended in the first round if  Ghana’s candidate former deputy foreign Minister and career diplomat Ambassador Quartey Thomas Kwesi had the additional two votes to meet the 2/3rd majority requirement. During the second round, he won the election with 44 votes and receiving the most confidence from the AU membership.

The two top positions of the AUC are now held by men. Although it remains to be seen how this affects the outgoing Chair’s derive for bringing women to leadership of the AU at various levels, women representation in the leadership of the AUC remains high. Four of the six commissioners elected by the Executive Council of the AU are women.



AU’s Shakespearean Morocco dilemma: To admit or not to admit?

There is a rich menu of issues on the agenda of the 28th African Union (AU) summit. It is sure to be a historic summit. Its historic importance is arguably in the league of the May 1963 Addis Ababa conference founding of the Organization of African Unity (OAU), predecessor to the AU and the July 2002 Durban summit inaugurating the AU.

What makes it historic is not the election of the new chairperson of the AU Commission expected to take place on 30 January 2017. It is not either the much-anticipated report of Rwanda’s President Paul Kagame on the restructuring of the Union.

What makes the 28th summit of the AU historic is the AU’s Shakespearean dilemma of admitting or not admitting the Kingdom of Morocco.

Since its withdrawal from the OAU in 1984, the northern Africa Kingdom has been the only African country remaining outside of the pan-African body, the AU. The O/AU has since grown from strength to strength with expanding political muscle and assuming increasing role on continental affairs. As it becomes alive to the reality of AU’s continental and global profile, Morocco sought to end its self-imposed diplomatic exile. 32 years after its departure, the Kingdom is now seeking to be part of the continental political fold.

After its very publicized announcement on its desire to have a seat on the AU table at the 27th AU summit held in Kigali Rwanda, Morocco formally submitted its request for admission to the AU in September 2016. Most recently, it signed and ratified the Constitutive Act of the AU, the founding treaty establishing the regional body.

Morocco’s charm offensive: Laying the groundwork for AU membership

As part of his visit to Kigali during the 27th AU summit, King Mohammed VI stated that although his country has left the organization, ‘it never quit Africa’. Indeed, despite severing its institutional ties, Morocco has over the years built strong economic and political ties in francophone Africa, where it enjoys its strongest backing.

In recent years, the Kingdom sought to extend its reach by deploying African wide diplomatic outreach. The Kingdom has opened embassies in Rwanda, Kenya, Tanzania, and Mozambique. In a diplomatic offensive that combined high level visits and wide-ranging economic cooperation agreements, Morocco sent some 20 high level missions to some 15 African countries during the past three years.

The King and senior officials also paid a visit to Nigeria, Ethiopia, Tanzania and Rwanda during the last six months of 2016. Morocco has signed 19 economic agreements with Rwanda and 22 with Tanzania, the later one a firm traditional advocate for decolonization and natural supporter of Western Sahara. Following his visit to Addis Ababa, the headquarters of the AU, King Mohammed VI announced the signing of a deal for building a $3.7 billion fertilizer company in Ethiopia, the largest single investment made outside of Morocco.

Reaping the fruits of its campaign

Morocco’s diplomatic overtures to obtain support from the wider membership of the AU did not go unrewarded. Although its attempts to get a hearing for its cause during the 27th AU summit was dead on arrival, in a display of strong support for Morocco 28 member states were reported to have signed a motion for the suspension of Saharawi Arab Democratic Republic (SADR) from the AU.

Following the communication by the AU Commission Chair Dr Dlamini-Zuma to AU member States on Morocco’s official request for membership in the AU, more than half of the members of the AU responded assenting to Morocco’s request. It was following the receipt of support from majority of AU member states that the Chairperson of the Commission put the issue on the agenda of the 28th summit of the AU.

 A dilemma like no other

 Given the ambition of the continental body for the unification of Africa, one of the founding ideals pan-African institutionalism, Morocco’s absence in the AU is an anomaly. At the same time, its return to the AU could mark one step to a more perfect union.

Yet, unlike South Sudan’s accession to the AU, Morocco’s raises a dilemma like no other. Morocco left the continental body in protest of OAU’s admission of the SADR as a member of the OAU. While Morocco was the founding member of the OAU, with the transition of the OAU to the AU, the SADR has become one of the founding members of the AU whose name is inscribed into the Constitutive Act, the founding treaty of the AU.

Other than the various geo-strategic changes that happened in Africa and the Middle East, as far as the reason for Morocco’s withdrawal is concerned nothing has changed. SADR remains a part of the AU.

Although no one disputes the pan-African roots and the African membership of Morocco, understandably, its move for joining the AU is not seen as a manifestation of the Kingdom’s affection for the continental body. There is legitimate concern that Morocco’s return carries serious peril for the Union. It threatens to create unprecedented split within the membership of the Union, exacerbating existing fault lines continuing to impede continental unity.

Apart from Algeria, the staunch backer of the Western Sahara cause, other major regional powers on the continent also firmly support Western Sahara. Western Sahara has its strong regional support in Southern Africa. In an opinion piece published recently, South Africa’s Foreign Affairs Minister Maite Nkoana- Mashabane expressed South Africa’s unequivocal support for SADR affirming that South Africa remains ‘committed to continue to walk with the people of Western Sahara until they are free to live in their own land and able to determine their own future.’ SADR can also count of no less a firm support from such countries as Zimbabwe. It also enjoys support in East Africa from countries such as Uganda. Kenya’s Foreign Affairs Minister, who is also one of the frontrunners of the candidates for replacing AUC Chair Dr Dlamini-Zuma, announced her plan to push for holding of the referendum on the right to self-determination of Western Sahara.

The applicable legal processes  

The legal process to be followed in determining Morocco’s request for readmission to the AU has been outlined in a briefing that the Legal Counsel of the AU, Prof Vincent O. Nmehielle, gave to the Peace and Security Council of the AU on 12 August 2016. According to the Legal Council, there is a three-stage process for approving a request for AU membership under the AU Constitutive Act.

The first stage of this process is stipulated in Article 29 of the Constitutive Act. This involves the formal submission of a request for membership in the AUC Chairperson, the communication by the Chairperson to member states indicating the request. The second phase depends on whether simple majority of member states approve of the request for member ship. The second phase envisaged under Article 7 of the Constitutive Act involves the presentation by the Chairperson of the AUC to the AU Assembly of the request and the number of support from AU member states for the request.

The final stage of the process involves the consideration and deliberation by the AU Assembly of the request. In a communiqué it issued following the Prof Nmehielle’s briefing, the PSC stressed the need for the state requesting admission to the AU ‘to commit itself fully to upholding and respecting the principles of the Union as outlined in Article 4 of the Constitutive Act’. The PSC communiqué further urged member states to comply with the provisions of the AU Constitutive Act as the only legal framework that should guide the accession of any state to the AU.

Impending showdown

AU is clearly poised to have one of the most unprecedented showdowns between states supporting Morocco and those upholding the 1984 decision admitting SADR, currently the last African territory falling under the 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples as the International Court of Justice held in its Western Sahara, Advisory Opinion, I.C.J. Reports 1975. While there are those calling for Morocco’s admission without any conditions, for others Morocco’s admission without accepting the right of Western Sahara for self-determination is an abomination to the liberation ideals of the continental body. There are also those who, short of insisting Morocco’s acceptance of SADR’s self-determination, demand that Morocco gives guarantee that it does not dispute SADR’s membership in the AU.

As the recent walkout of Morocco from the Africa-Arab summit held in Malabo in protest of the presence of SADR shows, the indication is that Morocco, if admitted, is unlikely to coexist within the AU on an equal status with SADR.

AU  Shakespearean Morocco dilemma of admitting or not admitting Morocco is unlike any similar dilemma before. Nothing less than the very fate of the Union is on the line. As one diplomat from an East African country put it to me, the AU is corned into ‘dropping its policy position on SADR or Morocco will return to break it from within.’ It is no wonder that Dr Dlamini-Zuma, in one of her tweets on 25 January 2017, cautioned that ‘Whatever we do at this (28th) Summit, we must ensure that we preserve the precious and principled unity of this continent and our Union’.


Gambia’s recipe for Africa in resolving a crisis of transition with no drop of blood

The troubled transition in The Gambia was resolved peacefully. No gunfire was shot, no drop of blood spilt.

Surely, no single factor or line of story fully accounts for this remarkable development. It represented an exemplary triumph of the work of African led diplomacy. As such, it is now sure to become Gambia’s recipe for peaceful resolution of crises of transition elsewhere on the continent.

The descent to a preventable crisis of exit

The political turmoil in the Gambia that forced some 50,000 Gambians into neighboring countries, as I argued previously, was a crisis of exit arising from what I call ‘the curse of electoral defeat of an authoritarian’ – involving questions of clarifying the fate of the outgoing president (terms of exit) when and after handing over power and the handling of the politics of transition from authoritarian rule to democracy.

The crisis ensued when on 9 December 2016 Jammeh, rescinding his earlier concession of defeat, announced his rejection of the election results. Although Jammeh blamed problems relating to the election process, it was trends of politics of anger, not uncharacteristic of post-authoritarian transitions, which put his future into question that pushed him to make a face about on his acceptance of the election results.

Indications were that, Jammeh was resigning into retirement. In preparation for soft landing and following on acceptance of his electoral defeat, on 5 December Jammeh’s government released 19 political prisoners, including Ousainou Darboe, the leader of Barrow’s United Democratic Party (UDP), followed by 12 others on 7 December.

Instead of seizing Jammeh’s acceptance of the outcome of the election to negotiate an exit strategy ensuring peaceful transfer of power, as Rwanda’s newspaper New Times’ commentator Lonzen Rugira summed it, the message coming from some in the opposition involved ‘there would be no immunity; they’d return to the ICC; they’d seize Jammeh’s assets and prevent him from traveling abroad; and they’d prosecute him in less than a year and possibly within the next three months because they wanted to “move fast.”’

Enter the ECOWAS led coercive diplomatic efforts

Despite his wishes to the contrary, Jammeh’s act attracted swift regional response that culminated in the peaceful resolution of the crisis. Central to the success of the diplomatic efforts were its three important features.

The first was regional leadership. ECOWAS took the lead both in setting the agenda and launching the diplomatic process. Rather than mediating between Jammeh and the president elect, the initiative of ECOWAS focused on the agenda of enforcing the outcome of the 1 December election. The subject of the diplomatic effort was thus rightly about negotiating an exit framework that ensures Jammeh’s departure and the ascent of the president elect to power.

The other feature of the ECOWAS led diplomatic process was the formation of a united front between regional and international actors. The agenda of ECOWAS on Jammeh’s departure received firm support from the continental body the African Union (AU), which expressing full support to ECOWAS warned Jammeh of ‘serious consequences’ and the UN as well as other international actors including the European Union and major powers like the US.

Third, the diplomatic effort around the agenda of Jammeh’s departure was backed by a credible threat of use of force. Apart from its 17 December summit decision to ‘undertake all necessary action’, a euphemism for use of force, ECOWAS member states mobilized their troops into The Gambia upon the expiry of a 19 January deadline they set for jammeh to leave power.

Collapsing of Jammeh’s regime from inside

As much as the caution that ECOWAS exercised (for exhausting diplomatic efforts that involved five rounds of presidential missions to Banjul mobilizing a total number of six African presidents), while showing firm posture, the crumbling of Jammeh’s regime and his alienation by his own army was a catalyst in bringing Jammeh into accepting the terms of his departure.

The string of cabinet resignations followed by the departure of longtime vice president Isatou Njie-Saidy forced Jammeh to dissolve his cabinet entirely. Despite declaration of state of emergency and parliamentary extension of his term of office for three months, the military chief announced that he had no plan to fight the ECOWAS troops marching into the Gambia.

Pulling the rug of power from Jammeh’s feet

Instead of its initial threat of ensuring the inauguration of Mr Barrow in the Gambia, ECOWAS opted for an extraordinary choice for the swearing in of the president elect Adama Barrow in the Embassy of the Gambia in Senegal’s capital, Dakar. Despite Jammeh’s claim to power with a parliamentary decision extending his power for a further period of three months, in an act that pulled the rug of power from Jammeh’s feet the president elect was sworn in as Gambia’s new president on 19 January.

This act sealed Jammeh’s political demise, paving the way for the AU and others to withdraw their recognition of Jammeh and welcom Mr Barrow as the legitimate president of The Gambia.

The most critical political act

No doubt the combination of all of the foregoing factors contributed in ending the crisis. Yet, the most critical political act for the crisis to be resolved peacefully was the eventual successful negotiation of Jammeh’s exit. Following the last rounds of diplomatic efforts involving Mauritania’s President Mohamed Ould Abdel Aziz and Guinea’s Alpha Conde, Aziz aptly summed the essence of the agreement on the exit of Jammeh saying ‘We have reached an agreement that saves the Gambia, guarantees peace, and assures security, dignity and honor for the outgoing president’.

The clear lesson from the crisis in The Gambia is that for a transition from authoritarian rule to democracy to be successful a free and fair election should be accompanied by a negotiated agreement on exit that encourages the authoritarian ruler into retirement and allows the country to move forward with an inclusive transition.

Lessons for diplomatic response for crises of transitions of power

From the perspective of diplomatic engagement, the successful resolution of the crisis shows the importance of various factors including a) regional agreement around a single agenda of the diplomatic effort, b) unity of regional actors and cohesive regional leadership that sticks around the same agenda c) willingness of the region to enforce such agenda and d) mobilizing and securing firm continental and international support and engagement based on and around the agenda set.

Obviously, it would be difficult to replicate the model of diplomacy employed in the Gambia in another situation. The fact that Gambia is a small country with one of the smallest and weakest military force has arguably made an easy case to handle with a threat of credible military action.

Although the model may not be and should not be replicated as is for other cases, it still offers a useful template that can be adapted as appropriate and used for other cases. Accordingly, in cases where a regime is backed by a relatively strong army and its components remain firmly together, this model needs to be complemented by such other measures as applied in Cote d’Ivoire after the November 2010 elections including suspension of membership, economic sanctions etc before using the threat of force.

Is there another side to the single story on the crisis in The Gambia?

The current crisis in The Gambia has a simple story, or so it seems. Here is how it goes.

On 1 December 2016 presidential elections were held in the country with the incumbent Yahya Jammeh and the opposition leader Mr Adama Barrow as frontrunners. The following day, the Independent Electoral Commission of the Gambia announced a surprising result, Jammeh lost the election by 39.6 % to Barrow’s 43.3 % of the votes cast.

Rescinding his concession of defeat made in a televised telephonic call to the winner of the Election on the same day, Jammeh announced his rejection of the election results, pushing the country into a political turmoil unprecedented in his 22 year authoritarian rule.

Typical’ of an African election, election was held, the opposition won, the incumbent refused to accept the results and a crisis ensued. Well, the only deviation is that for a ‘typical’ African authoritarian leader, it is not ‘typical’ to convene free and fair election, let alone to concede defeat.

As the story goes, it is no one but Jammeh to blame for this crisis. As in all stories of good versus evil, you have to take out the villain to safeguard the good. In the context of The Gambia, this means that the result of the election should be upheld and Jammeh should be forced out as declared by ECOWAS, AU and the UN.

Check any major news outlet covering the crisis including those in Africa, this is the line that is consistently narrated without exception.

In her now famous 2009 TED Talk Nigerian author Chimamanda Ngozi Adichie eloquently argued against a “The Danger of a Single Story.” Her point was that the complexity of a human experience cannot be reduced to a single narrative and when reduced to such narrative it is sure to lead to dangerous outcomes.

So could there be another side to the single story on The Gambia? Is this yet another single story with a danger?

Another side of the story?

In an opinion piece published on Rwanda’s newspaper New Times, commentator Lonzen Rugira took issue with the single narrative. He argued that there is more to the situation in The Gambia than meets the eye. His point as captured in the tile of his commentary is that ‘the international media and human rights organizations’ are to blame for the ‘unforced’ errors of the opposition that triggered the crisis.

For sure, this is a kind of analysis that one may push aside as counter intuitive, if not down right apologist for giving an excuse to what all agree to be a defeated authoritarian ruler. Well, even if one disagrees with him on blaming externals for the current woes of The Gambia, the truth is that Rugira is not without a point.

True that #Gambiahasdecided that Jammeh should go. As is the case with elections, this decision left the question of Jammeh’s exit, namely what happens to him and his camp when and after leaving power, unanswered.

Curse of loss of election by an authoritarian leader

The descent of The Gambia into this crisis is a result of what I call the curse of loss of election by an authoritarian ruler. While the electoral defeat of Jammeh the authoritarian ruler is a welcome development, it also presents the country with major issues. These include the questions of clarifying the fate of the outgoing president (terms of exit) after handing over power and the handling of the politics of transition from authoritarian rule to democracy.

In a context like that of the Gambia, these issues affect whether there would be smooth transfer of power leading to inclusive politics and deepening democratization or to a period of political instability and uncertainty.

Lost opportunity

More than the electoral victory of Mr Barrow, Jammeh’s acceptance of the result was crucial for peaceful transition. In a sign of good will, going beyond conceding defeat, on 5 December Jammeh’s government released 19 political prisoners, including Ousainou Darboe, the leader of Barrow’s United Democratic Party (UDP), followed by 12 others on 7 December.

This presented the Gambia a unique opportunity for a mutually agreed transition in which both smooth transfer of power to the winner of the election and secure exit for the outgoing president would have been assured.

As it turned out, this did not happen.

Instead of seizing the opportunity for an agreed transition, trends characteristic of post-authoritarian politics of vengeance started to emerge. Long suppressed members of the public did not take long before venting their understandable anger towards Jammeh including in desecrating images of him. Perhaps in a move that pushed him to make a face about, talk of the uncertain future fate of a president who conceded defeat crept into the post-election political discourse.

As Rugira observed, the message coming from some in the opposition camp was ‘there would be no immunity; they’d return to the ICC; they’d seize Jammeh’s assets and prevent him from traveling abroad; and they’d prosecute him in less than a year and possibly within the next three months because they wanted to “move fast,” a senior official was quoted saying.’

A preventable crisis

Without a doubt there is a lot of blame to be attributed to Jammeh. Yet, it shouldn’t have been allowed to wreck havoc on the transitional process. After all Jammeh was not expected to act in any way differently from what he did. In terms of steering the transition to success, at the very least the opposition camp should have avoided any missteps.

The Gambia’s was a preventable crisis. An exit strategy could have been negotiated leading to peaceful transition.

The lesson from the crisis in The Gambia is clearly that for a transition from authoritarian rule to democracy, free and fair election by itself alone is not enough. In such context, peaceful transfer of power and successful transition to democracy depends on an agreed political roadmap on how to manage the curse of loss of election by an authoritarian leader.

Could other African countries with similar situation be spared from similar trouble?

The Gambia is not unique in having an authoritarian ruler. There are many other African countries under the grip of Jammeh’s kith, some of whom with a record worse than Jammeh.

If these other rulers are not to take the wrong lesson and be encouraged into convening free and fair elections, the question that opposition parties, the citizenry and African regional and continental organizations should ask is whether they are willing to have an exit strategy that encourages these rulers into retirement and help the country move forward with peaceful transfer of power and inclusive transition. This is sure to determine whether other countries will have the same troubled transition as The Gambia.

African lessons for transitional justice from Colombia’s peace deal

The peace deal that the Government of Colombia and the Revolutionary Armed Groups of Colombia (FARC) struck has relevance far beyond Colombia. First, it brings an end to one of the world’s long running conflicts. Surely, this on its own is a cause for celebration in a world awash with violence. Second and perhaps importantly, what makes it particularly relevant for other parts of the world, notably Africa, is the example it sets for navigating the vexing terrain of peace versus justice.

In Africa’s evolving peace and security architecture, no other issue has emerged to be more challenging than how the demands of peace and justice are addressed in African societies transitioning from conflict to peace. It is only logical that those engaged in the process of pursuing peace and justice in Africa follow Colombia’s peace process with interest.

As recent experiences on the continent show, the dilemma is how to hold perpetrators of human rights violations accountable without compromising the possibility of negotiated settlement. Sequencing is viewed as one way achieving this balance but remains problematic.

Although many point to the example of South Africa as another option, legal developments internationally with the emergence of the International Criminal Court (ICC) and within the African Union (AU) generally mean that the use of amnesty even on South Africa’s model is frowned upon, if not rejected as a license for impunity. The result is that the question of peace and justice is often framed in the stark ‘either or’, black and white terms. As the recent spate of African withdrawals from the Rome Statute show, such antagonistic formulation of peace versus justice has become the hallmark of the controversy over the International Criminal Court in Africa.

Part of the problem has been no good model of peace settlement that successful struck the right balance and compromise between peace and justice has been found.

Now with Colombia’s peace deal one can find a useful model. The negotiated peace deal has offered Colombia the opportunity to end more than half a century conflict that claimed the lives of hundreds of thousands and displaced millions. The peace serves the interest of justice by preventing the violations and victimization that the continuation of the war would unavoidably have created.

In terms of Africa’s experience with transitional justice, Colombia’s peace deal has many parallels to South Africa’s negotiated transition. As in South Africa, Colombia’s peace deal crafts a common political future for all sides to the protracted conflict. FARC undertook to lay down arms, eradicate the illegal drug economy, remove landmines, admit responsibility for violations of humanitarian law and human rights and offer reparations for victims. In return, the deal obliges the Colombian government to provide the FARC security guarantees conditions and facilitate its integration into mainstream politics as a political party with 10 seats in Congress for the next two terms. As in South Africa, despite the referendum setback the peace deal is subject to democratic approval, in its revised form, at least by congress.

In accord with the international and African legal developments, Colombia’s peace deal corrected aspects of the limitations in South Africa’s transitional justice. In a breath of fresh air to the discourse on transitional justice, Colombia’s peace deal laid to rest the issue of the use of amnesties. Thus unlike in South Africa, Colombia’s peace deal rejected the use of amnesty in exchange for truth. Accountability is framed to go beyond and above truthful confession of violations. Yet, Colombia’s peace deal shows that for countries that seek to achieve a negotiated end to armed conflict the alternative for amnesty is not retributive justice.

In addition to truth telling, accountability entailed sanctions and obligations to redress victims. As one of the elements of the peace deal, the truth and reconciliation process entails that perpetrators of human rights and humanitarian law violations from both FARC and government security forces who confess their crimes would be eligible for a reduced sentence of up to 8 years of restricted liberty and community labor to repair damages to victims. Those who do not comply with these conditions will face a special court and prison sentences up to 20 years.

Additionally, unlike criminal prosecution, which puts its focus on punishing the perpetrator, Colombia’s peace deal has put victims at the center of the peace process by including them in the peace process, emphasizing restorative justice and according them major role in the transitional justice process. It is no coincidence that the peace deal received the most support from parts of the country most affected by the conflict.

As Virginia M. Bouvier rightly noted, rather than throw criminals in jail (generally at a high cost without many positive results), the transitional justice system under the peace deal seeks to establish a dialogue between victims and victimizers that satisfies the rights of the victim to truth, justice, reparation and non-repetition of the wrongs committed. It addresses the structural conditions for the armed conflict.

For conflict affected societies, the challenge they face is crafting a settlement which at ones guarantees security of the present through a negotiated end of armed conflict, confronts the wrongs of the past through restoring victims and holding perpetrators accountable as well as rectifying the root causes and engineers a common future through rehabilitated integration of warring parties to mainstream politics. With Colombia’s peace deal, which received the support of the UN, EU, US and Amnesty International, it is now possible to negotiate a peace that meets the demands of the past, present and future of African societies in transition within the bounds of relevant international and AU norms.

ICC withdrawals: Too good a crisis to waste!?

The Fifteenth Session of the Assembly of States Parties (ASP) to the Rome Statute Scheduled to take place on 16 to 24 November comes after the month of October brought the International Criminal Court’s Africa problem to yet another crescendo. It was in October 2013 that the tension between ICC and Africa ‘reached a new height’ when the African Union (AU) in an unprecedented move convened an extraordinary summit dedicated to addressing ICC’s role in Africa.

While at the time the proposal on the withdrawal of African state parties from the Rome Statute did not sound more than an empty barking, my observation was that ‘the extraordinary summit on withdrawal from ICC challenges not only the legitimacy but also (and importantly) the very future of the ICC’. I similarly wrote elsewhere that despite the fact that no decision was taken on withdrawal during that summit ‘the worst (in ICC’s troubles in Africa) may still be to come.’

Spates of withdrawals

This last October marks the beginning of the arrival of the worst that was feared of in previous years. Now the barking of October 2013 is accompanied by a biting. African State Parties to the Rome statute have started the process of withdrawal.

On 19 October South Africa’s foreign minister Maite Nkoana-Mashabane signed an “Instrument of Withdrawal”. Earlier in the same week Burundi’s parliament adopted with an overwhelming vote a law on the withdrawal of the country from the Rome Statute. The Gambia, from where the current ICC Prosecutor Fatou Bensouda hail, joined the bandwagon by declaring its decision to withdraw on 26 October.

The false choice between justice and impunity

Unsurprisingly, this latest development has sent shockwaves unleashing fierce debate in its wake. As in past developments that attracted heated controversy over ICC’s role in Africa, this time as well the debate is largely cast in stark black and white terms as a struggle that pits the good against evil, constituents of justice against those of impunity.

Some decried South Africa’s announcement of its withdrawal from ICC as ‘a blow for victims of international crimes’. Reacting to the announcements of Burundi, South Africa and the Gambia, Secretary-General Ban ki Moon reported to have said that withdrawal from ICC raises doubts about ‘commitment to justice’. To the extent that one agrees with these sentiments, one should hold non-membership in ICC of major powers (China, Russia and the US) and other notable countries like India as a show of lack of commitment on the part of these countries. These reactions and similar others seem to suggest that the withdrawals manifest an indictment on international justice.

Beyond the binary choice

While the concern that these reactions raise is not without merit, the narrow and stark formulation renders the issue into a zero-sum debate. The issue that arises from the withdrawals is however much more nuanced and less straight forward than a simple choice between justice and impunity.

The withdrawals are not an indictment on ICC in its entirety per se, even less on the ideals of international justice. Instead they represent an indictment on the structural flaws underlying the international legal order. As it stands, the international legal order is more a mirror image of George Orwell’s animal farm than a society bound by the rule of law that applies equally to all countries, big or small. Such is a legal order characterized by ‘the absence of a moral equivalence’ in the implementation of legal principles across all countries regardless of size and political and economic endowment’ and hence with features that tend to allow might to be right.

Not only that the ICC is part and parcel of this international legal order but by its design it has been made to reinforce and entrench the Orwellian animal farm character of the system by vesting the veto holding members of the UN Security Council with the power to refer situations in some countries while shielding themselves (or close allies) from scrutiny by the ICC. As one observer put it the resultant ‘prevalence of Northern hegemony, and an implicit hierarchical … order … makes it acceptable for African leaders to be prosecuted but makes the indictment of American or British leaders inconceivable.’

Seen in this light, the withdrawals accompanying several years of discontent express Africa’s challenge to the enormous influence that the hegemonic dominance of countries of the traditional power center of the international legal order exert in shaping the conduct of the international legal order including that of ICC.

As far as ICC itself is concerned, the withdrawals relate to concerns raised over the years on how ICC has gone about implementing its mandate in Africa. The first concern was about the launching of prosecutions with respect to ongoing armed conflicts for whose resolution mediation efforts are underway. The AU seems to hold the view that in a situation of an ongoing war at the very least peace and justice must be sequenced in such a way that priority is accorded to ending violence of armed conflict and creating the conditions for peace. In its instrument of withdrawal South Africa, South Africa stated that it ‘has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court of obligations contained in the Rome Statute of the International Criminal Court’.

Related to this is also the concern around the prosecution of seating heads of state and governments, which, in the context of Sudan and Cote d’Ivoire, is seen as a euphemism for regime change in the name of pursuing ICC’s agenda of prosecutorial justice or as a breach of the sovereign electoral choice of citizens in the case of Kenya. It is to be recalled that it was against the background of the democratic election that brought Kenyata and Ruto to power that the extraordinary summit of 2013 took the decision of the summit that ‘no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office’.

The issue of temporal official immunity for the duration of the term of office of heads of state and government was particularly prominent in South Africa’s withdrawal. Explaining South Africa’s decision the Minister of Justice Michael Masutha argued the ‘implementation of the Rome Statute of the International Criminal Court Act, 2002, is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act, 2001.’

No mass withdrawal but more withdrawals to come

There is going to be no mass withdrawals. This much has become clear from the debate on mass withdrawals, which featured prominently on the extraordinary summit of the AU in October 2013 and the July 2016 Summit in Rwanda. Yet, the three countries are unlikely to be the last of African states parties to withdraw from ICC.

It is expected that more African countries are expected to announce their withdrawal, with Chad, Kenya and Namibia all likely suspects. Kenya has gone far towards withdrawal with the parliamentary resolution awaiting Cabinet’s decision, as the president’s spokesperson recently reported. Similarly, Namibia’s minister of information announced in November 2015 that his government had decided to withdraw from the ICC. Uganda, which has also been vocal against the ICC, is another state party that may jump on the withdrawal bandwagon.

Where to from here?

ICC’s battered relationship with Africa is on the verge of a breaking point or so it seems. As they meet later in the month, one hopes that Assembly of States Parties to the Rome Statute would heed the adage that a crisis is too good an opportunity to be wasted. As Max du Plessis pointed out, at the level of the ASP there is a possibility for ‘a political solution to the question of whether serving heads of state should have immunity’. There is already a South African led working group at the ASP on the same subject that offers an avenue for seizing the opportunity that this crisis presented for reforming the issues bedeviling ICC. These reforms would include not only ICC’s target of prosecution (particularly as they relate to seating heads of state and governments until end of their term of office) and the exercise of the Prosecutor’s discretion with respect to both when and who to prosecute having regard to considerations of peace and security but also a conception of justice that embraces and supports measures for addressing the structural conditions that make atrocities possible. Such reforms would remove the steam from the apparently persistent opposition to ICC, enable the court to reduce the challenges of hegemonic influence to the minimum level possible and allow flexibility for pursuing the court’s mandate in a way that supports rather than stifles the transformative justice befitting societies coming out of armed conflicts and/or authoritarian violence.


Ethiopia’s worst bad habit

In a recent article that featured on Foreign Policy, Stephen Walt of Harvard University made the fascinating observation that ‘most (all?) states have some ‘bad habits’ – well-established but questionable practices that remain in place even when the justification for them is no longer apparent (if it ever was)’.

Reading the piece got me into asking what Ethiopia’s worst bad habit is. In the light of the widespread protests and the difficult but necessary political tumult in Ethiopia, this is a question of poignant concern.

Surely, there are several bad habits that many may easily put their fingers on. However, there is one that has always bothered me and occupies a nightmarish presence at the back of my mind and perhaps those of many others: Ethiopia is a country constituted and held together through iron and blood.

With no exaggeration most, if not all, Ethiopians and observers of Ethiopian politics may easily agree that the foremost worst bad habit of Ethiopia is indeed state violence. Historically force is at the heart of the making of the Ethiopian state. If Charles Tilly’s famous line ‘war made the state, and the state made war’ is anything to go by, Ethiopia is not unique in this.

Most notable is the fact that all of Ethiopia’s governments have used it as the main means of maintaining power. It has become so wired into the mindset and institutional tradition of the Ethiopian state. No change of time and conditions has been able to change it.

True, all of the country’s governments drew on other sources of legitimacy as well. The Emperor used religion and the legend of descent from King Solomon along with the modernization initiatives. Even the murderous Derg also tried to use its socialist and Ethiopia First slogans to prop up popular support. For EPRDF apart from its struggle credentials, it has banked its rule on the constitutional affirmation of the equality and self-determination of the diverse ethno-national groups making up the Ethiopian state and state led socio-economic growth.

While the other sources of legitimacy clearly varied with change of government, the use of violence has remained constant across these different governments. The Emperor built a modern security system able to instill fear, imprison and kill those defying and threatening his rule.

Going even farther, the Derg made the establishment of a military and police rule in the country its mission. At the height of its rule, it had the reputation of building the largest army on the continent. It built a notorious (in)security machinery that killed, imprisoned, tortured, disappeared and persecuted any one with opposing views either individually or in an organized platform.

Undeniably a lot has changed under the federal system that the 1995 Constitution put in place. A fair amount of the changes were for the better. Yet, this worst bad habit has not been broken under the EPRDF as well. Whatever improvements made towards democratization did little to dent, let alone undo, the hold of this bad habit. Indeed, the hold of this bad habit has been tightened during the past decade including through securitizing otherwise legitimate political and civic activities with draconian laws such as the press, civil society and anti-terrorism laws.

In the experience and imagination of ordinary people, the one institution that has become an embodiment of the bad habit of rule by brut force in present day Ethiopia is the Federal Police. Just ask any one on the streets of Addis or protestors in the Oromia region. For most, if not all, there is little else that Federal Police represents other than its chilling brutality. Following the small protests in Addis Ababa on 6 August, a minor illustration of this was circulating in various international media outlets showing a Reuters news agency video of federal police kicking and beating protestors with batons and sticks.

Although security institutions are supposed to be non-partisan, it is rightly observed that they ‘have in large part been taken over by political operatives of the incumbent’. The result is that the state’s worst bad habit gets expressed in a partisan way protecting the incumbent and tormenting ‘opponents’.

In its May 2016 edition, the monthly Addis Ababa based English magazine Addis Standard had the infamous Maékelawi as its cover story. Recalling that this was one of Derg’s institutions used for torture, abuse and terror, the sub-title of the story reads ‘Why is Ethiopia still running a “Torture chamber” from the past?’ Despite its notoriety and being a relic of the Derg’s repressive past, it is indeed outrageous that Maékelawi still operates serving as the site of the Ethiopian Federal Police Central Bureau of Criminal Investigation. Even more outrageous is that its past practices are thriving. The same interrogation methods involving life changing physical and psychological suffering during the Derg time are not uncommon today. Apart from the testimonies of those who spent time in Maékelawi for investigation and prosecution, the record of the court files of people held there is replete with accounts of torture and various other abuses.

A further test to find out that this worst bad habit continues in present day Ethiopia is to ask some simple questions. What has happened to opposition political parties, journalists, activists, and bloggers acting, speaking or writing in a manner threatening to EPRDF’s rule? What has happened to protests that erupted in Addis Ababa University at various points in the 1990s and early 2000s? How did EPRDF deal with the 2001 split in the TPLF? What happened in the aftermath of the contested elections of 2005? How about the protests in Oromia and Amhara regions of Ethiopia?

In a widely read article he wrote on the current political situation in Ethiopia, Tsadkan G/Tensai, former chief of staff of the armed forces of Ethiopia, observed regarding the expulsion of some senior members of the TPLF after the 2001 split that ‘those persons were expelled from the party not based on the rules of the party but under duress and using security apparatus’ (emphasis added). Explaining how this was done, he stated that ‘the legislative (sic) was summoned to pass laws designed to detain and keep in prison a few persons perceived by some as threat. Some were thrown to jail even after bail was secured from a court of law.’

With respect to the protests and political upheaval that Ethiopia faced in the aftermath of the 2005 disputed elections, General Tsadkan observed that ‘EPRDF contained the resistance from the opposition by killing hundreds of people and throwing the opposition figures into jail.’ In a report that the US Institute of Peace published in 2007, it stated that ‘[i]t is now confirmed that at least 193 people died and hundreds of others were injured (following the June and November 2005 confrontation between protestors and security forces). By most estimates, tens of thousands were detained, many released without charge after some months, and some charged later with criminal offenses.’

The Dimtsachin Yisema movement involving members of the Muslim community has similarly been responded with a security crack down. Many of its leadership (pardoned on the occasion of Ethiopia’s 2009 new year) were prosecuted with charges of terrorism.

The shooting of protestors carrying no firearms, the killings and maiming and the mass imprisonment of protesting youth have again become evident in the recent protests the engulfed the Oromia and Amhara regional states, the two most popular unites of the Federation that together make up more than 65 per cent of Ethiopia’s close to 100 million people.

In another cover story it featured earlier in the year with a heading ‘Why is Ethiopia killing its people again’, the editorial of Addis Standard observed on the outcome of excessive use of force by security forces in Oromia that ‘[s]ince November 12th 2015, when the first protest broke out in Ginshi, a small town 80km from Addis Ababa, countless households have buried their loved one; young university students have disappeared without trace; hundreds have lost limbs and countless others jailed.’ While government sources indicate a much lower fatality figure, various sources reported that several hundreds lost their lives from the months of protests in Oromia region.

The protests in Amhara region first started in the historic city of Gonder. It resulted from a confrontation following attempts by forces of the anti-terrorism task force to arrest individuals who are members of the Wolkait Amhara Identity Question Committee, a group campaigning for the recognition of the Amhara identity of Wolkait, which in the current federal arrangement forms part of the Tigray region.

When protests were first held in Gondar city at the end of July 2016, it ended without incident. Yet, subsequent protests have turned violent. It was reported that a confrontation that arose between protestors and security forces on 5 August 2016 resulted in death, bodily injury and rounding up of various people. As the protests spread to other parts of the region including the capital Bahir Dar, ‘[t]the city became the scene of unspeakable horror’, William Davidson, one of the foreign journalists covering the situation wrote in a recent article. He went on to say that a ‘peaceful anti-government demonstration there turned violent after a security guard at a government building opened fire on the crowds, provoking an angry backlash from protesters, according to witnesses. Security forces then gunned down dozens of demonstrators, killing at least 30.’

Not surprisingly, the protests in Oromia held on 6 August, which reportedly covered large parts of the region, were responded with no less brutal force than before. In the context of sporadic incidents of chaos during the protests, security forces reportedly shot and killed around 100 and rounded up many more.

There is thus very little to disagree with the view that, ‘[I]t looks like all that the EPRDF government got in its tool boxes to address popular grievances and policy reform demands are only guns and more guns.’

Taking into account its persistence across different governments, one can identify some seven manifestations of Ethiopia’s bad habit. First is the belief or political thought that force is central to governing the Ethiopian people. This belief has for generations defined the relationship between the people and government not in terms of citizen and agent but that of a subject and a ruler. This thinking still lingers on in one way or another.

Second is what John W Whitehead calls a nation of suspects. This is a politics of paranoia manifesting a sheer lack of trust towards members of society, particularly those with no active allegiance to the regime. It also entails the branding of those the government wishes to target as banda or traitor, reactionary or counter-revolutionary, secessionist, terrorists, etc.

A necessary corollary to this and the third manifestation is best captured in the famous line from George Orwell’s book 1984 that ‘big brother is watching you’. People are followed, constantly checked, harassed, intimidated and controlled. The surveillance is so pervasive and intrusive. It uses not only human intelligence but also electronic technologies to monitor and keep record of the movements and speeches of citizens, their phone conversations, their emails and social media activities.

Fourth is the establishment and use of a security institution both as an instrument and symbol of enforcing the regime’s power over the citizenry. As illustrated by Africa’s post-colonial authoritarian governments perverted reliance on colonial laws they fought against, this also involves the maintenance of the institutions and practices of repression of the oppressive old regime. The case of Maékelawi was earlier mentioned as an example.

Fifth is a rule by law. In this context, the government of the day uses draconian laws for clothing its authoritarian rule a façade of legality. A case in point in present day Ethiopia is the anti-terrorism law, which has been used to stifle political opposition and dissent. Reaching obscenely absurd level, it did not even spare bloggers of Zone 9, mostly new young graduates with passion for their country and politics.

Six is the use of the police and military force as a means of handling political contestations. As a hammer treats everything as nail, all manners of political conflicts are viewed as security problems and dealt with security tools.

Seventh is the lack of meaningful legal recourse for citizens against violations. Either no transparent and independent investigation is undertaken or no one is held for violations including killings. Even complaints of torture and other abuses presented to courts in the course of ongoing prosecution receive no sanction.

It was Frantz Fanon who wrote in his famous book Black Skin White Masks ‘[w]e revolt simply because, for many reasons, we can no longer breath’. Indubitably, the reasons for the protests in Ethiopia are many. However, it is sure that the country’s worst bad habit is one of the principal reasons.

There are various developments that make the continuation of Ethiopia’s worst bad habit untenable. There is less and less disposition on the part of the public to tolerate or acquiesce into submission to the state’s bad habit. Central to this are the important demographic changes the country has witnessed in recent decades.

Like in other parts of the continent, the young generation makes up the single largest section of the population. The size of the population having literacy and going to school has grown exponentially. Although its pace is not aggressive, the country has also been experiencing a process of urbanization and expansion of the middle class. Additionally, despite all its problems, use of mobile phone and the Internet has brought easy access to information to more and more people across the country.

All in all, today there is a high level of political consciousness and rising demand for democratic and responsive system of governance. All this is very good.

If the recent spate of protests in various parts of the country is to end and Ethiopia stands real possibility of genuine democratization – which is central to its survival, the government should end this age-old worst bad habit. This should start with acknowledging that we indeed have this problem, and it is so grave that we should relieve ourselves of it. More concrete immediate measures that should be taken to this end include ending the resort of security forces to the use of excessive force in dealing with protestors, establishing an independent national commission of inquiry for investigating and reporting on all acts of excessive use of force against unarmed protestors. Similarly, the thousands of people who have been rounded up and being held in detention centers as part of the security crack down should also be released.

In the medium to the long term, transparent rules on the independent regulation of the activities of the security institutions in accordance with the Constitution should be put in place. Additionally, the laws relating to the press, political parties and terrorism should be revisited to put them out of the realm of security and ensure their conformity with the rights in the Constitution and the various international human rights instruments such as the African Charter on Human and People’s Rights to which Ethiopia is a party.

It is also key that those in government and society at large are able to disabuse themselves of the political thinking that force is central to governing the Ethiopian people. This also demands a mind set shift towards a political thought that Ethiopians are to be governed by and on the basis of just laws made in accordance with democratic constitutional principles.

While Professor Walt in his insightful article warns unsurprisingly that ‘breaking a bad habit is not easy’, he is clear that a nation’s bad habit can indeed be broken. Breaking Ethiopia’s worst bad habit is not beyond the realm of the possible and it holds the key for the stability of the country.

The views are my personal views and are in no way attributable to any of the institutions I am associated with

Taking the Ethiopian protests to Rio

Various protests were held in the months since end of 2015. Most were held in three parts of Ethiopia, in Oromia and in recent months in Amhara and Addis Ababa. Such protests were not staged at a world stage in full view of the international media. This was true until Feyisa Lelisa reached the crossing line during the Rio men’s marathon competition.

Well, like previous memorable Olympics, Rio will take a place of honor in Ethiopia’s Olympic history. Unlike other times, this history is not just made by breaking world athletics record only. Indeed, this one will be remembered for the political issues that it highlighted and the attention it drew beyond the track.

This story started to be written by Robel Kiros. His apparently overweight body and slow swimming became a media sensation. One might say like a good friend of mine said that all the talk about the size of his stomach would have elicited little attention if his swimming was good.

Curiously, this was the guy who was given the honor of holding team #Ethiopia flag during the opening ceremony. When asked about it on one of the local FM stations, he said ‘he was asked to carry the flag a mere 15 minutes ago and it was an opportunity that any one could not have refused’ and indeed he grabbed.

He did not care whether he deserved it and whether there were other world class Ethiopian athletes, particularly women, in the team who could have deservedly fly the flag high. Yet, he is less to blame for this than those who lead the team to Rio. Not surprisingly and particularly at this historical juncture when any suspicious event is put to serious political scrutiny, this has been a major subject on the social media.

The issue that this event brought to the fore was whether he was there in the first place deservedly and whether he benefited from the fact that his father is part of the officials of Ethiopia’s Athletic Committee who led the team to Rio. This is the question of favoritism, one of the major factors underlying the current political storm in the country.

As far as adding to Ethiopian record of making athletics history in the competitions was concerned, we were able to hold our heads high thanks to our women. A case in point is Almaz Ayana. She made history for herself and Ethiopia by decimating the Olympic record. Not even some of the racist commentaries attributing her incredible success to doping reduced from the celebration and ray of light that her gold produced for Ethiopia and Africa.

She also put the less known region of Benshangul, from where she hails, at the forefront of the Ethiopian socio-political map. She deservedly received the praise and admiration of many in Ethiopia and across the African continent. Rightly, her success overshadowed the negative publicity that Robel elicited. With her other medal, she gave birth to yet another new record breaking athlete to Ethiopia.

Ethiopia witnessed another history of a different kind in Rio on the last day of the Olympics. Feyisa Lilesa, who won silver in the men’s marathon took the recent protests in Ethiopia to Rio. On two occasions, he displayed the arms-crossed-over-head gesture associated with the more than nine months #Oromoprotest. He first held his hands corssed over his head at the finishing line. He repeated the gesture at a press briefing he gave.

Although widely expected to repeat the act when receiving his medal, he did not however show the sign during that occasion. Perhaps, someone might have reminded him that displaying political signs during can result in him being sanctioned by the OIC, the world athletics body.

Not surprisingly his name and act is trending on social media. It is sure to remain a headline subject of discussion for the days to come. After all, his act not only draws attention to the protests but also puts the government on the spotlight.  When asked about it, he indicated that he did show the sign in solidarity with his people who have been staging protests for a number of months. He also expressed concern about the risks he faced for displaying the protest sign if he were to return home. So whether or not he returns home is not a matter of his will but ability to do so without risking any reprisals.

Without a doubt, it will be a major loss if he is unable to return to Ethiopia. But the uncertainty of his return, like the protests at home, put the ball of the responsibility of guaranteeing his safe return in the court of the government. As with responding to the fundamental issues (facing the country) that the protests have raised, the onus of whether Lelisa is able to return home together with other members of his team is now on the government.  How would it respond to this (to a protest at a world stage in Rio)?  One hopes that it will not be treated as an act against any one but for all of Ethiopia, the peace of the country.



Obama on Lessons’s From the Libya intervention

In a widely read interview in The Atlantic, among the many issues that President Obama addressed was his view on what went wrong in the NATO led intervention in Libya. With respect to the approach taken for undertaking the Libyan intervention, he said ‘We got a UN mandate, we built a coalition, it cost us $1 billion—which, when it comes to military operations, is very cheap. We averted large-scale civilian casualties, we prevented what almost surely would have been a prolonged and bloody civil conflict. And despite all that, Libya is a mess.’

Indeed, Libya has disintegrated beyond recognition and today the country endures, arguably, far more destruction and human suffering than what it faced under Gaddafi’s authoritarian rule.

Explaining what went wrong, Obama, rightly, blames Libya’s descent into abyss on the lack of follow up. On this he in particular puts the responsibility on the members of the coalition notably France and the UK. True enough, those countries who took did not envisage their intervention to go beyond and above ending Ghaddafi’s rule. There was no plan or strategy as to what happened after and as a follow up to the military intervention. With Ghaddafi’s removal and the dismantling of his regime, the only entity that held Libya together also disappeared. No unified political movement or agreed transitional framework was emerged to fill the huge political and security vacuum that Ghaddafi’s demise left.

As in Iraq, the lesson from Libya is it is much more easier to remove a regime than bring about a functioning and legitimate replacement. Even more importantly, regime change through external intervention in fragile or long enduring authoritarian countries tends to precipitate the disintegration of the country and can do more harm than good.

From a perspective of the responsibility to protect, the failure of the intervention was not limited to the absence of a plan for post-conflict reconstruction. It also involves at least two other important lessons.

First is the need for limiting the military action to the terms of protecting civilians as specified in the resolution authorizing the action. In implementing the terms of Resolution 1973’s objective of ‘protection of civilians and civilian populated areas’, NATO went further and pursued the objective of overthrowing Ghaddafi. In an open letter dated 15 April 2011, the US President Barack Obama, French President Nicolas Sarkozy, and UK Prime Minister David Cameron, stated that ‘it is impossible to imagine a future for Libya with Qaddafi in power’. The problem with pursuing regime change was not only that it was contrary to international legality but also, and on that account, results in destructive outcomes that defeat the objectives of protection of civilians as developments in Libya illustrated.

The situation revealed that the UN does not have an effective monitoring and accountability mechanism for ensuring that UNSC resolutions are executed without exceeding the terms and objectives of the resolutions mandating military action.

Second is the need to give diplomatic and/or political processes and hence the voice of all local political forces adequate and genuine chance to lead the effort for resolving the crisis and succeed. NATO countries and their allies were determined to use military means as the only solution to the crisis. They left no room for giving diplomacy a chance. Thus, the opportunities that arose when the Libyan government declared its willingness for ceasefire and negotiated settlement were not adequately explored. Instead, the government’s declarations of ceasefire and willingness for negotiation were dismissed as a deliberate ploy by Ghaddafi to buy time and shield himself from the escalating military assault targeting him and his government. By May 2011, the AU even managed to secure Ghaddafi’s commitment that he would not be part of the negotiation for the formation of a new government and of the government to be formed.

In this regard, Obama’s admission of the failure of NATO’s intervention in Libya vindicates the position that the AU adopted at the time both about exhaustion of the diplomatic avenue and the perils the military campaign posed.

It is not merely the use of military force in the particular setting that made the Libyan intervention, to use the language from The Atlantic, the ‘stupid shit’ that it has turned out to be. It is also, and perhaps more importantly, on account of the fact that the intervention did not give space for diplomatic means of resolving the crisis and breached legality by pursuing an agenda not mandated in the resolution that authorized the intervention.

The new Peace and Security Council of the AU

The election for the new 15 members of the Peace and Security Council (PSC) of the African Union (AU) was held on 28 January at the meeting of the Executive Council of the AU. There were 22 AU member states in the list of candidates (as shown below).

Candidates for the 2016 PSC election (own compilation)

Region Available Seats in the 2016 Election States Running Years Previously Served on the Council
Central Africa 3 Burundi, Cameroon, Gabon,  and Chad Burundi served three times, (2008, 2010 & 2014) and seeking reelection; Gabon served twice previously (2004 & 2007); Cameroon served three times (2004, 2006, 2012); Chad served three times (2008, 2010 & 2014)
Eastern Africa 3 Comoros, Djibouti, Eritrea, Kenya, Rwanda, Sudan and Uganda Djibouti served twice previously (2010 & 2012) Kenya served twice (2004 & 2010) Rwanda served three times (2006, 2008 & 2010) Uganda served three times (2006, 2008 & 2013) Sudan served once (2004) Comoros & Eritrea never served on the Council previously
Northern Africa 3 Algeria, Egypt, Mauritania & Tunisia Algeria served three times (2004, 2007 & 2013) Egypt served two times (2006 & 2012) Mauritania served once (2010) & Tunisia served once
Southern Africa 3 Botswana, Swaziland & Zambia Botswana served once (2006) Swaziland served once (2008) & Zambia served once (2008).
Western Africa 4 Sierra Leone, Niger, Nigeria & Togo Nigeria served four times (2004, 2007, 2010 & 2013) Niger served once (2014) Togo served once (2004) & Sierra Leone never served previously.

Few days before the election Cameroon left the election in favor of Congo. Similarly, Swaziland and South Africa swapped the former’s candidacy. It is not common for the Southern Africa region, which has the distinction of following the principle of rotation strictly, to have a current member to stand for re-election. Just before election started on 28 January, Tunisia withdrew its candidacy. At the time of the election the list of candidates was as follows.

Region Candidates in January 2016
Central Africa Burundi, Chad, Congo and Gabon
Eastern Africa Comoros, Djibouti, Eritrea, Kenya, Rwanda, Sudan and Uganda
Northern Africa Algeria, Egypt and Mauritania
Southern Africa Botswana, South Africa & Zambia
Western Africa Sierra Leone, Niger, Nigeria & Togo

The countries that specified their candidacy for the three-year seat of the Council were Congo, Djibouti, Gabon, Egypt, Nigeria and Zambia. According to the modalities of the Election of the PSC, if these countries do not receive the two-third majority vote required for their election they will automatically lose their candidacy altogether and will not thus stand in the elections for the two-year term membership of the PSC.

While Egypt, Nigeria and Zambia had no other country from their respective regions running for the three-year term membership of the Council, Gabon and Djibouti faced competition from other states in their region. Gabon was running against Congo and lost the election by 15 votes against Congo’s 34 votes and run out of the entire competition. Similarly, Djibouti competed for the three-year term membership of the PSC against almost all candidates from East Africa except the Comoros. After several rounds of voting it lost the election for Kenya, which received 45 votes in the last round of votes for the three-year term membership in the PSC.

Zambia, running as the only candidate for Southern Africa, was elected with 100 per cent vote for the three-year term membership in the PSC. Running as the only candidate from North Africa, Egypt was also elected by 47 votes. Similarly, Nigeria won the election receiving 49 votes.

PSC members elected for 3-year term in January 2016 

Region Elected in January 2016
Central Africa Congo
Eastern Africa Kenya
Northern Africa Egypt
Southern Africa Zambia
Western Africa Nigeria

The list of countries that run for the two-year membership in the PSC are as follows.

Region Available Seats in the 2016 Election States Running
Central Africa 2 Burundi and Chad
Eastern Africa 2 Comoros, Eritrea, Kenya, Rwanda, Sudan and Uganda
Northern Africa 1 Algeria and Mauritania
Southern Africa 2 Botswana and South Africa
Western Africa 3 Sierra Leone, Niger & Togo

In the election for the two seats slotted for Central Africa region, since Gabon went out of the election after losing the competition for the three-year term membership, Burundi and Chad became the only candidates from the region. Both countries received the required two-third majority vote (Burundi 38 and Chad 48) and duly elected to the PSC.

In the election for the two seats available for East Africa, after several round of votes Rwanda received the required majority to win one of the two seats. After another several round of votes in which the candidates with the least votes were eliminated, Uganda secured the required majority to win the remaining one seat.

For the two seats allotted for Northern Africa, Algeria received the required majority vote in the first round. Mauritania lost the competition by 13 votes against Algeria’s 39.

Since there were only two candidates for the two seats slotted for Southern Africa, both Botswana and South Africa received 48 and 49 votes respectively to win the election for the two-year membership in the PSC. Similarly, the three countries that were running for the three seats available for the West Africa region namely Sierra Leone, Niger and Togo also obtained 49, 47 and 48 votes respectively to win the election and join the PSC for two-year term.

PSC members elected for 2-year term in January 2016

Region Elected in January 2016
Central Africa Burundi and Chad
Eastern Africa Rwanda and Uganda
Northern Africa Algeria
Southern Africa Botswana and South Africa
Western Africa Sierra Leone, Niger & Togo

The result of the 2016 election of the 15 members of the PSC shows that four of the so-called ‘big five’ member states of the AU, who contribute 15 percent each to AU funds, are in the PSC. Six of the 15 countries, namely Algeria, Burundi, Chad, Nigeria, South Africa and Uganda are returning members of the PSC and this guarantees some level of continuity from the PSC whose term ends at the end of March 2016.

The new members of the PSC such as Egypt, Kenya & Rwanda are also expected to bring new dynamics as well. Sierra Leone is the only new member that makes it to the PSC for the very first time and thereby increasing the number of states that have so far served on the PSC to 38.

It also became clear from this election that the practice of paying no attention to the requirements of Article 5(2) of the PSC Protocol in the election of PSC members has become persistent. This provision stipulates that one of the criteria for membership in the PSC is ‘respect for constitutional governance, in accordance with the Lome Declaration, as well as the rule of law and human rights’. Like previous elections, several countries, on whose unsatisfactory human rights record the African Commission on Human and People’s Rights (ACHPR) lamented in its report to the PRC and the Executive Council, continue to be elected to the PSC.

Until such time that PSC Protocol Article 5(2) requirements are made to trump Article 5(1) requirements of regional representation and rotation, it is completely unlikely that this anomaly in the election of PSC members would be overcome. The nature of its composition did not stop the PSC from acting against its own members (suspended Mali in 2012 for unconstitutional change of government) or having them on its agenda (such as Mali, Libya & since last year Burundi). Yet, in the year that is dedicated to human rights, it is unacceptable that this practice is allowed to continue. It is thus imperative that a AU score card of AU member states human rights performance is introduced as a basis for operaitonalizing the PSC Protocol Article 5(2)    requirements in the election of PSC members with the result of countries scoring less than 5 out of 10 being disqualified from running for membership in the PSC.