Accra, Ghana - As military takeovers continue to destabilize parts of West and Central Africa, legal researcher Dramani David has called for the enforcement of existing continental and regional legal frameworks to combat Unconstitutional Changes of Government (UCG). In a detailed analysis, David argues that Africa does not lack laws against coups but suffers from weak domestication and enforcement of those laws.
“Double-Lock” System Needed to Criminalize Coups
At the center of the legal fight against UCG is the African Charter on Democracy, Elections and Governance (ACDEG, 2007), a binding treaty that defines UCG to include putsches, coups d'état, mercenary interventions, and incumbents refusing to cede power after losing elections under Article 23.
“The challenge in Africa is not a lack of laws, but a lack of domestication,” David stated. He urged states to move beyond mere ratification and directly incorporate ACDEG principles into national constitutions. This “double-lock” system would ensure a coup is treated as a crime under both international law and domestic penal codes simultaneously.
Shift from Blanket Embargoes to Targeted Sanctions
David noted that both the African Union and ECOWAS operate under a zero-tolerance policy, with Article 30 of the AU Constitutive Act and Article 25 of the ACDEG mandating the immediate suspension of Member States where UCG occurs.
However, he called on the legal community to push for a shift in sanction strategy. “General economic embargoes often punish innocent civilian populations while the elite remain insulated,” he said. Instead, targeted sanctions such as travel bans and asset freezes against individual coup leaders and their collaborators should be prioritized. He added that the African Court on Human and Peoples’ Rights should monitor sanctions to ensure consistency and prevent humanitarian violations.
Entrenched Term Limits to Close Loopholes
The analysis identified constitutional manipulation by incumbents as a major trigger for military intervention. Article 23(5) of the ACDEG classifies any constitutional amendment that infringes on democratic change as a form of UCG.
To prevent “legalized coups,” David recommended that presidential term limits be specially entrenched. Citing Article 290 of Ghana’s 1992 Constitution as a model, he said amendments to term limits should require high-threshold referenda. “This closes the legal loophole that often serves as a pretext for military intervention,” he explained.
Judiciary Must Uphold Constitutional Supremacy
The role of courts after a successful coup was also examined. While courts historically relied on Hans Kelsen’s Theory of Revolutionary Legality to recognize new regimes, modern jurisprudence has shifted.
In the landmark Nigerian case _Lakanmi v. Attorney-General (Western State)_, the court limited recognition to the Doctrine of Necessity, acknowledging de facto authority only to prevent total anarchy, without validating the illegal seizure of power.
“Judges must maintain the supremacy of the Constitution,” David argued. “Even under a military junta, the basic structure of the law and fundamental human rights must remain non-derogable. The judiciary must act as the final fortress of the constitutional order.”
Citizen Resistance and Constitutional Literacy
Using Ghana as an example, David highlighted Article 3 of the 1992 Constitution, which grants every citizen the right and duty to resist attempts to overthrow the constitutional order. Article 3(3) classifies participation in a coup as high treason.
“Legal education must prioritize constitutional literacy,” he said. “When citizens understand that the law empowers them to resist and that coup participants face trial for treason with no statute of limitations, the political cost of a coup becomes prohibitive.”
Three-Point Action Plan
David proposed three immediate steps for legal practitioners and civil society:
Monitor Compliance: Verify whether states have submitted biennial reports to the AU Commission on ACDEG implementation as required by Article 44.
Public Interest Litigation: Challenge executive acts that undermine the separation of powers before they escalate into instability.
Regional Reform: Advocate for the adoption of the proposed ECOWAS Supplementary Protocol on Democracy and Good Governance, which seeks a region-wide ban on third-term bids.
Conclusion: Law as Democracy’s First Line of Defense
“The defense of democracy in Africa is a legal obligation as much as it is a political one,” David concluded. “By domesticating international charters, entrenching term limits, and empowering citizens through constitutional literacy, we can ensure that the Grundnorm of our nations remains rooted in the will of the people, not the power of the gun.”
The analysis comes amid ongoing suspensions of Mali, Burkina Faso, Niger, and Gabon from AU and ECOWAS activities following recent coups, underscoring the urgency of stronger legal deterrents across the continent.
Contact: Dramani David | 0599490444 | daviddramani999@gmail.com
