On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.
As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. It can be concluded from the AU’s latest statement on Zimbabwe upon Mugabe’s resignation that it regarded the event as an opportunity for the establishment of a more democratic rule in the country. This approach suggests that some coups might be more democracy-promising than others.
The AU Practice on Unconstitutional Changes of Governments
Beginning in 1997 with its decision not to accord legitimacy to the military junta in Sierra Leone, the Organisation of African Unity (OAU) – the predecessor of the AU – started to build a solid framework against unconstitutional changes of government. The OAU adopted the Hararé, Algiers and Lomé Declarations respectively to emphasise the importance of democratic governmental change. The Constitutive Act of the AU, which entered into force in 2001, introduced in its article 30 a suspension mechanism for members whose government has been overthrown by unconstitutional means, and the African Charter on Democracy, Elections and Governance regulates in article 23, in great detail, five cases that constitute an unconstitutional change of government. With the exception of the cases of Tunisia, Egypt, and Libya during the Arab Spring, the AU has consistently implemented its suspension mechanism set up against unconstitutional changes of government as it can be observed in the cases of Togo, Mauritania, Madagascar, Niger and Egypt. In all these cases, the AU had a very resolute approach in suspending the state immediately following the military coup and did not lift the suspension until elections were held and the constitutional order was restored.
The recent events in Zimbabwe are not the first time that the AU was confronted with a situation where a ruler who is notorious for his authoritarian politics has been overthrown by the military. In 1992, Taya became the first democratically elected president of Mauritania. He was elected again in the 1997 and 2003 elections. Nonetheless, opposition groups questioned the credibility of the elections and measures were subsequently taken by the government to silence anti-government critics. In August 2005, the military overthrew Taya’s government. On the day following the coup, the AU condemned the unconstitutional change of government and suspended membership of the country from the organisation. The AU lifted the suspension only after the holding of parliamentary and presidential elections. A similar approach was adopted by the AU in Niger. Tnadja became the president initially in 1999 and then again in 2004 for a second term. At the time, the Constitution did not allow a president to run for the presidency for a third term. Nevertheless, Tnadja amended the Constitution through a referendum that extended his term for another three years and enhanced his presidential powers. The Constitutional Court declared that the amendments were in violation of the Constitution and this was followed by the dissolution of first the Parliament and then the Constitutional Court by Tnadja. In 2010, the military overthrew Tnadja from power. The AU was swift to condemn the coup and suspended the state from the organisation’s activities. The AU lifted the suspension only when elections were held and the constitutional order was restored. In 2013, the response of the AU was the same when the military overthrew Morsi in Egypt and it suspended the country from the organisation despite the abstention of many states, including the US and EU countries, to call the event a military coup. As it can be observed in these cases, the AU applied the suspension mechanism regardless of the prospective advantages of the coups and did not discuss whether the coup could be instrumental for the acceleration of the democratization process.
The AU and the Zimbabwe Episode
However, the case of Zimbabwe presents a rupture in the AU’s approach. On 15 November, Mahamat, the Chairperson of the AU Commission, when asked at a press meeting whether he considered what took place in Zimbabwe was a coup, avoided giving a straightforward answer and declared that the AU was opposed to unconstitutional changes of government, and that they were expecting the situation to be resolved through legal means. The following day, the Chairperson issued an official statement and called “all stakeholders to address the current situation in accordance with the Constitution of Zimbabwe and the relevant instruments of the African Union, including the African Charter on Democracy, Elections and Governance”. It is noteworthy that the Chairperson urged “all stakeholders” to abide by the Constitution instead of asking the military to release the President and restore the constitutional order. Rather than condemning the military takeover as it had done in many cases in the past, this time the AU adopted a more moderate approach and preferred to wait and see how the event would unfold. Finally, when Mugabe stepped down, the Chairperson declared that they “welcomed” the resignation and clearly did not qualify the event as a military coup. Indeed, the declaration referred to the events as the legitimate expression of the will of the people: “The African Union recognizes that the Zimbabwean people have expressed their will that there should be a peaceful transfer of power in a manner that secures the democratic future of their country. President Mugabe’s decision to resign paves the way for a transition process, owned and led by the sovereign people of Zimbabwe.” In contrast with its previous practice, the AU preferred to refer to the will of the people, rather than underlining the role of the military regarding the resignation of the elected president.
It is important to assess whether the situation in Zimbabwe can be considered constitutional and in compliance with the AU framework. Article 92 of the Zimbabwe Constitution stipulates that “the President and the Vice-Presidents are directly elected jointly by registered voters throughout Zimbabwe”. More importantly, when the President resigns, the Vice-President has the right to replace him until elections are held according to article 101 of the Constitution. Yet, in Zimbabwe it was not the incumbent Vice-President but a former Vice-President who replaced Mugabe after his resignation. The military acted very diligently to deter any potential sanction from the AU by not overthrowing Mugabe by force and in an abrupt manner. In fact, they stated that it was not a coup and that they were protecting Mugabe from criminals surrounding him, seemingly acting in the President’s own interests. They paved the way for his resignation and waited for him to do so. It is undeniable that there is a close link between the military’s intervention and Mugabe’s resignation, despite the military’s refusal to call this incidence a coup. Even if we accept that the military did not force the President to step down by using armed force, and that the resignation of Mugabe reflects his own will, the current governmental change is still not in accordance with the Zimbabwe Constitution. Although the military put considerable effort into easing the reaction of the international community, the governmental change was not conducted in accordance with constitutional rules and thus was is in violation of article 30 of the AU’s Constitutive Act, which prohibits unconstitutional changes of government. However, the AU abstained from making any statement about the compliance of the manner in which the new president rose to power with the AU framework. This indicates that the organisation changed its consistent practice of rejecting governments established by military intervention.
The AU’s practice regarding the change of government in Zimbabwe comes at a time when the AU is working towards consolidating its mechanism against unconstitutional changes of government. The Charter on Democracy, Elections and Governance creates individual criminal responsibility for coup perpetrators in its article 25. When the Malabo Protocol enters into force and the African Court of Justice and Human and Peoples’ Rights is established, the Court will have competence to try coup perpetrators. It is therefore still open to debate why the AU changed its long-established practice and tolerated, or even welcomed, the military intervention in Zimbabwe.