After surviving many coups d'Ètat, political assassination attempts, political upheavals and different political transitions and dispensations, Africa's political dinosaur finally bowed out last Saturday, February 5, 2005. General Gnassingbe Eyadema died, according to reports, of a heart attack while being flown abroad for medical treatment. What is intriguing about his death is not so much the fact that the last of the dominant francophone trio (Houphouet Boigny-Mobutu-Eyadema) is gone, after a record 38 years in office, but the circumstances under which a successor was found.

Following Eyadema's ability to manoeuvere his way and have the constitution amended to make him run for unlimited terms, lowering the minimum qualifying age for a President from 40 to 35 years, and carving a cabinet post for his son Faure Gnassingbe, speculation became rife that Eyadema indeed had dynastic ambitions. Interestingly, as usual, Eyadema, saying that destiny would decide dynasty, denied this. But events and circumstances surrounding how the deceased's son came to power, described as a "relative newcomer to politics," seems to confirm what many Togolese had feared and political pundits had predicted.

A few days before Eyadema's death, the President of the National Assembly, Ouattara Sambare Natchaba, had travelled to Europe on official assignment as head of a parliamentary delegation. He was still away when Eyadema passed away. Contrary to the norm of shrouding the death of an African leader of the calibre of Eyadema in secrecy, his death was announced the same day on state radio and television by the Prime Minister Kofi Samma. According to reports, about 2 hours later, the Chief of Staff of the Togolese Armed Forces, General Zachari Nandja, appeared on state television to say that "the constitution had been suspended and Faure Gnassingbe, who was a junior minister in the government, had been appointed head of state." In justification for the take-over of power Gen. Nandja is reported to have said, "The armed forces of Togo find itself faced with the evidence of a total vacuum of power in Togo. This is because the speaker of the national assembly is absent. Therefore, in order not to create a power vacuum, the armed forces of Togo has decided to declare Faure Gnassingbe the head of state." He is further quoted as saying, "The Togolese armed forces swear allegiance to Faure Gnassingbe as President of the Republic of Togo," said Nandja, who was flanked by the country's other top military commanders. At the same time, Gen. Nandja announced the closure of the country's borders (air, land and sea).

Following these two announcements from the Prime Minister and the Army General, messages of condolences began to pour in from African and other world leaders, as well as condemnatory reactions to the installation of Faure Gnassingbe as the new leader of Togo.

Noteworthy among the reactions is the swift and vehement opposition to, and condemnation of, the takeover of power by the African Union and the Economic Community of West African States.

Nigeria's President Olusegun Obasanjo, the chairman of the African Union, said the appointment was unconstitutional. "President Obasanjo will not accept any unconstitutional transition of power in Togo," his spokeswoman said. "Speaking on behalf of the AU, President Obasanjo urged the people of Togo to insist on respect of the constitution on the provision of an interim leadership that will lead to the democratic election of a new president for Togo." African Union Commission Chairperson Alpha Omar Konare, did not mince words: "What is happening now in Togo, you must call things by their proper name, is a seizing of power by the Army. It's a military coup d'etat." ''The constitutional order must be re-established so that power can be held by the president of the national assembly." A spokesman for Mr. Konare, Adam Thiam, went as far as to say that, ''This administration will not be recognized because it comes from a coup d'Ètat." The U.N. Secretary-General Kofi Annan also weighed in, saying that he hoped Togo would ensure a peaceful transfer of power in line with its constitution.

Following this reaction, and perhaps to fit into the AU's narrow definition of what would constitute unconstitutional change of government, the Togolese Parliament stepped in and convened an extraordinary session of Parliament to amend the constitution and replace the legitimate speaker of the National Assembly with Mr. Faure Gnassingbe.

The BBC quoted one European diplomat who seemed to imply that this "neat trick" might be accepted. "It is a political manoeuvre that has not violated the constitution. One might feel manipulated but it is within the lines of the constitution."

However, it is the writer's opinion that this "neat trick" indeed violates the Togolese Constitution, the African Charter on Human and Peoples' Rights, and international law which the Togolese Constitution itself upholds.

A careful read of article 65 of the Togolese Constitution stipulates that, in case of a vacuum in the presidency created through death, resignation or incapacity, the functions of the President shall pass on provisionally to the President of the National Assembly or Speaker of Parliament. The Constitutional Court will establish the validity of the vacancy. Afterwards, the provisional government shall be given 60 days within which to organise elections and elect a new president who will run a full term of 5-years as prescribed by the Constitution.

Therefore, automatically, Mr. Natshaba should have been sworn-in as the interim head of state to run the 60-day transition period. Rather, he was not allowed to re-enter the country, having had his plane diverted to neighbouring Benin, thus creating the "power vacuum." The fact that the Army suspended the constitution, installed Faure Gnassingbe as the new head of state, instead of the President of the National Assembly, and pledged allegiance to him (Faure Gnassingbe) simply amounted to a military coup d'Ètat. Article 147 of the Constitution makes it explicit that the Togolese Armed Forces are "a national, republican and apolitical army, totally subject to the constitutional political authority". And 148 says that all attempts to overthrow a constitutional regime by personnel of the Forces or the public security services is considered an imprescriptible crime against the nation and punishable according to the laws of the land. Furthermore, article 49 stipulates that the security forces and the police, under the authority of the government, have the role and responsibility of protecting the free exercise of the rights and liberties, and to guarantee the security of the citizens and their property.

The after-the-fact act of going to Parliament to legalise and legitimise the illegality and illegitimacy of the military act cannot help. This is because by reference to article 54 of the Constitution, in case of a vacuum created in the Presidency of the National Assembly through death, resignation or any other reason, the National Assembly shall elect a new person in his/her stead. It is important to note that since the Speaker was leading an official delegation to the European Union, he was still acting as the Speaker even while outside the country. He did not die nor resign. The only other recourse, that is, based on "any other reason" could only give room for his removal and replacement if done by the National Assembly. There was no reason assigned by the Army for removing the Speaker from office. More importantly, it was not the function of the Army to do that. That was the work of Parliament. Also, the Army did not have the power to appoint a new person to replace the Speaker. Again, this is the responsibility of Parliament.

But can we say that what the National Assembly did on Sunday, February 6, a day after the military take-over was justified constitutionally? After all, one would say that Article 54 clearly mandates them to do so. Therefore, at worse, they cleaned up the dirty work of the military and met the condition of the international community that the transition of power should proceed on the basis of the constitution. Can one also argue that the National Assembly act of February 6 was in line with article 150 of the constitution?

Interestingly, article 150 of the constitution stipulates that in the event of a coup d'Ètat or any use of force to overthrow the constitutionally elected government, all members of government or the National Assembly have the right and the duty to have recourse to all means to re-establish constitutional legitimacy. It further states that in such circumstances, to disobey and organise to abort the establishment of an illegitimate authority is considered for all Togolese as 'the most sacred of rights and the most imperative of duties."

What the National Assembly did on Sunday February 6 was not to restore constitutional legitimacy but to smear a veneer of legality on an illegal act. The National Assembly did not condemn the Act of the military; they did not call on the Constitutional Court to rule on the illegality of the military take-over of February 5 and have Faure Gnassingbe and the top brass of the military arrested and tried. They did not make any efforts to re-open the borders and let the Speaker of Parliament come in to take over his constitutional duties as interim president.

Rather, they took steps to make the "President of the Nation" who had been installed a day earlier and which act amounted to an imprescriptible crime against the nation, to be installed as the Speaker of Parliament. The contradiction is clear and irreconciliable: from President of the Republic to President of the National Assembly.

Another issue that obviously raises eyebrows for any constitutional expert is, what steps were taken to remove the President of the National Assembly from office? What were the charges against him? Also, considering that the session that Parliament held on February 6 was an extraordinary sitting, were the rules for convening an extraordinary session followed? According to the constitution, the Speaker of the House can only convene such a session, after it has been demanded by the President of the Republic or the absolute majority of deputies. In this regard, either Mr. Natshaba should have been present or a new President of the House appointed. If a new one was appointed, it could obviously not have been Mr. Faure Gnassingbe since the President of the House is the one who should convene the extraordinary session. But it was the extraordinary session that led to the removal of the constitutionally legitimate President and his replacement by Mr. Gnassingbe. And if a new President of the National Assembly was appointed who in turn convened the extraordinary session, then the House should have dismissed this new President before replacing him with Eyadema's son. One wonders if all these steps were taken.

Yet another issue to discuss is the amendment of the Constitution to remove the legal requirement to hold elections in Togo within 60 days of the death of a President. The new inserted article states that the President of the National Assembly succeeds the President of the Republic and can stay in office until the end of the previous President's mandate.

According to the Togolese constitution, the responsibility for taking steps towards an amendment of the constitution is shared concurrently between President of the Republic on the advice of the Prime Minister and at least a fifth of the members of the legislature. Furthermore, the amendment bill shall be considered adopted if voted by 80% of the deputies constituting the National Assembly. In the event that this majority is not attained, the bill shall be subjected to a national referendum. More important to note, the Constitution is categorical in stating that no procedure for amendment shall be initiated or pursued during an interim period or a vacancy or when it relates to the territorial integrity of the nation.

There are a lot of questions about the legality of the amendment process itself. Among these is the fact that the amendment was made during an interim period or vacancy. There was then no President of the Republic or the House. According to Reuters' reporter, John Zodzi, the amendment was made before Faure Gnassingbe was appointed head of the National Assembly.

In light of the above analysis, the writer strongly lends support to the unequivocal position taken by the African Union. Their actions are in line with the objectives and principles of Union. Article 3 (g) and (h) states that the objectives of the Union shall be to: (g) promote democratic principles and institutions, popular participation and good governance; (h) promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments. Also, Article 4(m) and (p) says: The Union shall function in accordance with the following principles: (m) respect for democratic principles, human rights, the rule of law and good governance; (p) condemnation and rejection of unconstitutional changes of governments.

Also, the AU Framework for Response to Unconstitutional Changes of Government places a responsibility on the Current Chairman of the AU and the Secretary-General, whenever an unconstitutional change as provided for in the definition of unconstitutional change should occur in a Member State, to "immediately and publicly condemn such a change and urge for the speedy return to constitutional order." Also, the Current Chairman and the Secretary-General should also convey a clear and unequivocal warning to the perpetrators of the unconstitutional change that, under no circumstances, will their illegal action be tolerated or recognized by the AU."

While the Constitutive Act did not elaborate on what could constitute unconstitutional change of governments, the AU Framework outlines 4 definitions of situations that could be considered as situations of unconstitutional change of government:

i) military coup d'etat against a democratically elected Government;
ii) intervention by mercenaries to replace a democratically elected Government;
iii) replacement of democratically elected Governments by armed dissident groups and
rebel movements;
iv) the refusal by an incumbent government to relinquish power to the winning party after
free, fair and regular elections.

However, the AU decided "to restrict the definition of unconstitutional changes of government to paragraphs (b) (i to iv) of the "Framework for an OAU Response to Unconstitutional Changes of Government" (Doc. Rev1 of the Central Organ).

While the military act of February 5 falls neatly into the first category, the Parliamentary faux pas of February 6 seems a bit tricky, particularly in view of the AU decision to restrict the definition of unconstitutional change of government.

However, it remains clear that the Parliament endorsed the military coup of February 5 through their attempts to regularise the illegal acts of the military working in cahoots with Faure Gnassingbe. These are summarised as following:

Failing to condemn the suspension of the constitution, and the announcement and the installation of Mr. Faure as the new head of state;
Failing to call on the Constitutional court to rule on the illegality of the take-over and calling for the arrest and prosecution of Mr. Gnassingbe and the army brass;
Failing to call for the return of the President of the National Assembly to assume his legitimate role as interim President;
Convening an emergency session of Parliament in contravention of the procedures laid by the constitution;
Amending the Constitution contrary to spirit of the Constitution.

It is the author's considered opinion that, but for the above reasons, applying the strict and narrow definition of situations which may amount to unconstitutional change of government, the acts of the Togolese parliament may have passed the test of proper and legitimate change of government. It is therefore suggested that the AU decision paragraph 2 be revoked and the paragraph 4.3.1 of the Draft Declaration on Elections, Democracy and Governance be amended to be in line with the Framework's text which suggests that the paragraphs (i) to (iv) are only examples of unconstitutional changes of government, and that other possibilities may exist. The text reads: "In order to give practical effect to the principles we have enunciated, we have agreed on the following definition of situations that could be considered as situations of unconstitutional change of government.

Such an approach will be in conformity with the spirit and principles of democracy that the Framework upholds. It will cover for example, the situation involving the actions of the Togolese Parliament standing on its own and without any link to the previous day's military take-over. Other situations that could be covered may include a government coming to power or perpetuating itself in power through election fraud, which is becoming part of the continent's democratic ethos. Also, a situation where a government, though having come to power through democratic means turns out to be overtly undemocratic may also be covered. In fact, these examples constitute some of the major factors that lead disaffected politicians and military personnel to stage coups d'Ètat. The fundamental issue therefore is whether the way the country is run is likely to jeopardise the peace and security of the country. The Peace and Security Council of the AU could be charged with the responsibility of assessing the situation and making a recommendation or presenting its findings before the AU Assembly.

Yet another troubling issue about the Framework is the stipulation giving an unconstitutional regime 6 months to return the country to constitutional rule. Udombana's reaction to this arrangement is cynical but to the point: it gives "sufficient time to a smart regime to wreak havoc on the national treasury before disengaging, like General Abdulsalami Abubakar's regime in Nigeria." Obviously, it buys Faure Gnassingbe more time (compared to the 2 months allowed under the Togolese constitution) to "put his house in order."

Addressing parliament afterward, Gnassingbe said: ``Togo is engaged without reserve in the democratic process, which I will pursue to its logical conclusion. The challenges are many, and difficult. But I believe that I can count on all of you, and all Togolese of goodwill who believe in peace, national unity and security,'' Gnassingbe said."

It is time for the Constitutional Court and the people to stand up against the illegal acts of the military and the Parliament, as demanded by the Constitution that, "Sovereignty belongs to the people. The people, through their representatives and through referendum, exercise sovereignty. No section of the populace, a state body or individual can claim that power for itself." Article 43 of the constitution also urges the people that the defence of the fatherland and the territorial integrity is the sacred duty of the citizen." Again, it is worth quoting article 150 which says, inter alia, that to disobey and organise to abort the establishment of an illegitimate authority is considered for all Togolese as "the most sacred of rights and the most imperative of duties."

The legacy of the two other members of the dominant Francophonie trio, H. Boigny of CÙte d'Ivoire and Mobutu of Zaire are evident for all to see. Both countries are embroiled in civil war. The peace and stability of the whole West African region is threatened if the international community does not stand up and take action to support the legitimate struggle of the Togolese people to restore order and democracy in their country.

* DR Kwadwo Appiagyei-Atua is a human rights academic, a member of the Ghana Bar Association and holds a Doctor of Civil Law degree from McGill University in International Human Rights Law.

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