Introduction

Africa has recorded another first in the area of bad governance: a sitting head of state who has lost elections and has conceded defeat, turns round a few days later to say that he misspoke and that he was not sure he meant what he said by saying he had lost the elections. This is the story unfolding in The Gambia which has been plunged into a state of uncertainty, panic and chaos.

Background

Lt Yahya Jammeh came to power in The Gambia on 22 July 1994, after leading a group of soldiers to oust the longest serving democratic government in Africa led by Sir Dawda Jawara. The raison d’être for the military putsch was to clean up the mess of corruption created by the Jawara administration and return the country to constitutional democracy in four years, to wit, 1998.

At that time, the then OAU’s position on recognition of governments was murky at best as the organisation did not make provision for such practice in its Charter.

Recognition of governments is a unilateral act acknowledging the existence of a government – which came to power through unconstitutional means – by another government or international organization. Recognition by a government is a political act, which does not necessarily take into account the legal context in which a state or government comes to power being. However, with respect to international organisations, recognition follows certain laid down principles and norms agreed to by the organisation and embodied either in its constitutive treaty or another document – be it a declaration, decision or resolution. Thus non-recognition means that the government that purports to be in existence is, legally speaking, not in existence; and therefore it cannot enter into relations with that the entity that has refused to grant it recognition.

Return to constitutional rule

Two years after assuming the reins of leadership in The Gambia, Jammeh organized a constitutional referendum on 8 August which resulted in the promulgation of a new constitution which ultimately returned the country to constitutional rule. In the ensuing elections, Jammeh contested and won with 55.8% of the vote. The elections were, however, criticised as being not free and fair due to government crackdown on journalists and opposition leaders at the time.

Regime legitimacy/Pseudo-democracy

However, the process was enough to cloth Jammeh’s regime with legitimacy, having met the minimalist democratic requirements established by the US and other Western States after the fall of the Berlin Wall. Having thus legitimised his rule, Jammeh went ahead to contest and win three more elections in 2001, 2006 and 2011. In all of these, the opposition alleged massive rigging of the polls and boycotted some of the parliamentary elections, which are held separately from the presidential.

From then on, nothing could stop Jammeh who began to acquire and amass titles, ending up as H.E. President Sheikh Professor Alhaji Dr. Yahya A.J.J. Jammeh. With each passing period, he sought to tighten his grip on power, leading to further and more egregious violations of human rights as reported by Human Rights Watch, Amnesty International, the UN Human Rights Council, the EU, etc.

Retraction of concession of defeat

Then came December 1, 2016 when Jammeh lost the elections to Adama Barrow. Yet, after conceding defeat and congratulating the winner, in a bizarre twist of events, Mr Jammeh made a volte-face by refusing to recognize the election results. This decision, however, was clearly in violation of the ECOWAS Protocol on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security (adopted in December 2001 and entered into force in 2005); and the African Charter on Democracy, Elections and Governance of which The Gambia is a signatory.

Article 1(c) of the Supplementary Protocol provides for ‘Zero tolerance for power obtained or maintained by unconstitutional means.’ Article 9 of the same instrument provides that ‘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.’ All the election observers, including Jammeh himself, had declared the elections to be free and fair. Therefore, it did not lie in his mouth to contradict his earlier statement. The Protocol provision finds expression in the 1997 Gambian Constitution (as amended in 2001) which stipulates that … ‘The people shall express their will and consent as to who shall govern them and how they shall be governed, through regular, free and fair elections of their representatives.’

A few days after his volte-face, Jammeh sent the army to take control of offices of the independent electoral commission, and in the process barred the Electoral Commissioner and his staff from the premises. This action by the military is a betrayal of the loyalty pledge the Chief of Defence Staff had given the President-elect a few days earlier.

The army’s action is also in violation of the ECOWAS Supplementary Protocol demands that the armed forces be “apolitical,” “non-partisan” and should remain loyal to the nation as well as to “defend the independence and the territorial integrity of the State and its democratic institutions.” This is position is also affirmed in section 187(2) of the Gambian Constitution.

In reaction, the African Commission on Human and Peoples’ Rights, in a statement issued on December 14, 2016, expressed deep concern “about the change of the position of the outgoing president on the legitimacy of the outcome of the elections.” It argued that this situation “has created tension and an atmosphere of uncertainty threatening the democratic process and the peace and stability of the country.”

Lessons from Jammeh’s antics

While the real underlying factors which caused Jammeh to switch course are not disclosed, one could connect it to the possibility of fighting for an amnesty deal against possible prosecution for the various human rights violations he is alleged to have committed which is likely to cause his indictment for crimes against humanity. Perhaps, the spectre of Chad’s Hissène Habré and the arrest warrant issued against Sudan’s Al Bashir started to haunt him. This may account for his decision in October 2016 to withdraw from the International Criminal Court (ICC). This view is confirmed by his statement of January 11, 2017 in which he is quoted as having appointed a national mediator to meet "all parties to resolve any mistrust and issues" and draft an amnesty bill to ensure there was "no witch-hunt so that we can restore a climate of confidence and security."

Therefore, the issue of election rigging by Jammeh is mere red herring. He has more experience in election rigging than the coalition as he has done it since 1996. Secondly, if truly the rigging allegation was good, he would simply have followed the constitutional requirements to have that issue resolved before the Supreme Court but not to retract a concession speech, decide to decompose and recompose an independent electoral commission and occupy its premises.

All these actions are in violation of international law and the Gambian Constitution. This strategy was adopted in order to create a reaction from the Barrow camp which Jammeh would have exploited to declare a state of emergency and use that as a basis to perpetuate himself in power.  The Gambian populace should be commended for not falling into this heinous trap. In the end, he did declare a state of emergency but without any basis through a servile National Assembly which he controls.

From my analysis, the OAU and later the AU, is responsible for raising the monster in Jammeh. From scratch, the OAU ought to have supported the African Commission on Human and Peoples’ Rights in standing up to Jammeh and ensuring that the resolutions it passed on The Gambia were implemented. It took the OAU up to 1999 to take a decision in Algiers, Algeria, on unconstitutional changes in government and another extra year and for the Lomé Declaration of July 2000 on the Framework for an OAU Response to Unconstitutional Changes of Government (Lomé Declaration) to be adopted.

The Lomé document, among others, identified four forms of unconstitutional changes of government. That is, through coups d’état, mercenarism, armed dissident action to overthrow a regime and refusing to leave office after losing an election. The declaration also, albeit indirectly, outlined steps to recognizing a new regime, from no to de facto and ultimately de jure recognition. However, a major weakness of this declaration is that it did not give space for granting simultaneous de jure recognition to a deposed regime. Therefore, what it meant is that if a constitutionally-elected regime lost power through unconstitutional means, it had no chance of being restored to power.

The AU came to build on the Lomé Declaration, first, through its Constitutive Act, which sought to radically depart from the OAU position of non-interference to that of non-indifference by allowing for the right of intervention pursuant to  a  decision  of  the Assembly  in  respect  of  grave  circumstances, namely: war crimes, genocide and crimes against humanity, even without the authorization of the UN Security Council.

This evolution created the expectation that the AU would develop clear-cut policies on recognition of governments and on how to deal with unconstitutional regimes. Unfortunately, however, up till now, the AU has adopted inconsistent practices on how to deal with unconstitutional changes in government.

The ECOWAS stance of standing up to Jammeh is the second time it has sought to flex its muscles to axe a leader who wants to remain in power unconstitutionally. The first was in the case of Tejan Kabbah when it intervened militarily to restore the democratically-elected government to power after its overthrow by rebel forces. This action by ECOWAS was hailed as representing a watershed moment in the adoption of a pragmatic position on collective recognition which is in line with general international law position of granting.

Although the AU position on unconstitutional changes in government is clear, it has sought to play second fiddle to ECOWAS in this matter. This is an unfortunate development. For example, it is not known if The Gambia has been suspended from the activities of the Union, as required by Article 30 of the AU Constitutive Act.

It is important to note that AU has set a precedent in Comoros by sending troops there in 2007 to overthrow a unconstitutional government led by Bacar who had refused to leave office after the expiration of his term. However, that precedent has not been followed. This is an experience that can definitely be shared with ECOWAS. AU’s laid-back approach to the Gambia crisis, therefore, is unacceptable.

Popular sovereignty versus state sovereignty

It is crucial for Africa to recognize that the time for popular sovereignty is now. The constitutions of all African States stipulate that sovereignty resides in the people. Section 1(2) of The Gambian Constitution affirms this. Yet, this notion of sovereignty has been overshadowed by the absolutist approach to the exercise of state sovereignty. The latter has been used by governments to trample over the will of the people, hiding behind the nebulous concept of non-interference in the internal affairs of states.

S6(2) of the Constitution empowers all citizens of The Gambia “to defend this Constitution and, in particular, to resist, to the extent reasonably justifiable in the circumstances, any person or group of persons seeking or attempting by any violent or unlawful means to suspend, overthrow or abrogate this Constitution or any part of it.”

This is popular sovereignty, the citizenship power, which the Constitution accords the people and which they are to use to resist oppression.

Jammeh is also subverting the electoral laws of The Gambia by claiming that he would remain in power until May when the Supreme Court would be able to hear his petition. That decision constitutes treason by seeking to overthrow and or prevent a constitutionally appointed regime from taking office, which is frowned upon by the Gambian Constitution.  Section 49 of the constitution grants each political party or individual the right to petition the Supreme Court within 10 days of the announcement of the elections of which he/she is aggrieved about. That process, however, does not stop the investiture of the new President-elect, according to section 63(2) of The Gambian constitution: “The person elected President shall assume office sixty days following the day of his or her election.” This is because governance must continue. There cannot be a hiatus.

The law says that when the decision is rendered by the court and the winner is different from the one declared by the Electoral Commissioner the latter will vacate his post and give way for the former to take over. So on what basis is Jammeh demanding to remain in power: his incumbency, his belief that he has a better chance of winning the case or the mere fact that he is the petitioner? Gambia’s laws on resolving presidential electoral disputes are similar to Ghana’s, not Kenya’s.

His behavior therefore triggers the right and duty of the citizenry to rise up against him in defence of the constitution. And where they are unable to do so due to the overwhelming physical force used against them, to solicit the support of the international community to do so.

For that matter, if Jammeh does not cede power and contest the petition as a private citizen, ECOWAS’ planned intervention will be justified under the concept of the Responsibility to Protect (RtoP). RtoP is based on the underlying premise that sovereignty entails a responsibility to protect all persons from mass atrocity crimes and human rights violations. Therefore, where a state proves unable or unwilling to respect this principle it triggers the responsibility of the international community to respond to avert the commission of international crimes. Thus, the only way to avoid the intervention is to give up power peacefully. The situation in the Burundi where the AU did not exercise the political will to intervene which has created a continuing state of instability where atrocities are being committed, should be our guide.

* Dr Kwadwo Appiagyei-Atua is a Senior Lecturer at the School of Law, University of Ghana, Legon. He lectures in Public International Law and International Human Rights Law. He can be reached on [email protected]

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