by Florian KrienerMarch 02, 2021
On June 6, 2019, the Peace and Security Council of the African Union (PSC) suspended the Sudanese government from the activities of the African Union (AU). The suspension was a reaction to the unconstitutional change of government in Sudan.
However, the coup d’état against long-time dictator Omar Al-Bashir had already occurred two months earlier on April 11, 2019, when members of the Sudanese Armed Forces removed Al-Bashir from office against the backdrop of a country-wide nonviolent movement.
Initially, the PSC had noted this breakdown of constitutional order in its meeting on April 15, but had not suspended Sudan’s membership. This delay raises compelling questions with potentially major implications for international law.
To unpack those questions, a few preliminary observations are in order. The PSC is the guardian of the democratic order established by the African Union’s normative framework. Most importantly, it is empowered by the African Charter on Democracy, Elections, and Governance (ACDEG) to suspend governments that have come to power through an unconstitutional change in government. When the PSC suspends a government, it withdraws the AU’s recognition and thus delegitimizes the government in question. This enforcement mechanism for the regional democratic principle in Africa has been deemed to significantly reduce the occurrence of coups d’état in African states.
International observers saw the arrest and detention of Al-Bashir on April 11 at the hands of armed forces as a textbook coup d’état. This should have prompted Sudan’s immediate suspension from the AU. However, the PSC only called for the transition of governmental authority to a civilian-led body within a period of 15 days. This period was extended in early May. A closer analysis of the PSC’s reasoning in this and previous cases shows that the presence of nonviolent movements has been essential for the PSC’s suspension decisions.
When the AU member states signed the ACDEG in 2007, they did not believe in the ability of nonviolent movements to topple governments. Therefore, they did not address this situation in the treaty. Accordingly, during the first nonviolent revolutions of the Arab Spring, the PSC faced an uncertain normative framework when it had to decide on the suspension of Tunisia and Egypt. Nonviolent movements necessarily function outside of state institutions and thus provoke unconstitutional changes in government. However, under certain circumstances in authoritarian and semi-authoritarian states, they can be the only form of achieving a democratic transition. This, in turn, embraces the democratic spirit espoused by the ACDEG.
Against the backdrop of this normative uncertainty, the PSC recently established the practice of accepting the compatibility of nonviolent revolutions with the ACDEG. The Egyptian military assumed power amid widespread public protest in 2011 and announced the organization of free and fair elections and a transition to civilian government. Soon thereafter, the PSC expressed its “solidarity with the Egyptian people whose desire for democracy is consistent with the relevant instruments”.
Concerning Tunisia, the PSC similarly accepted and “welcomed” the change of government after the popular uprising. When the military seized power in Burkina Faso in 2014 and in Zimbabwe in 2017, no suspension occurred due to popular protests against incumbent dictators that supported the temporary military take-over. In the PSC’s view, the popular protests bestowed the new governments with sufficient democratic legitimacy to retain the recognition within the AU system. The case of Sudan is emblematic for this practice.
When the military sacked Al-Bashir in April, protesters applauded the military and supported its intervention. This support legitimized the Transitional Military Council (TMC) during the transition period. However, the TMC objected to a transfer of power to civilian authorities and violently dissolved the central protester camp in Khartoum in early June 2019. Therefore, the protesters who organized through the Forces for Freedom and Change withdrew their support to the TMC government. Only after the protesters had withdrawn their support from the military government, did the PSC proceed to suspend the government. Without the protesters' support, the TMC was not sufficiently legitimized to retain recognition from the AU system.
The PSC’s practice demonstrates that in certain circumstances nonviolent revolutions are considered legal within the AU’s normative framework. Accordingly, nonviolent movements bestow transition governments with legitimacy, which allows them to retain AU recognition.
However, there is a nuance to this classification of nonviolent movements. After the 2013 putsch in Egypt, the PSC immediately suspended the new government headed by Abdel Al-Fattah Al-Sisi, despite widespread protests against former President Morsi and in favor of a military takeover. In its reasoning, the PSC argued that the institutions in Egypt still allowed for popular participation. Therefore, an unconstitutional revolution was uncalled for. President Morsi had been elected only recently in 2012 in free and fair elections. Nonviolent movements can therefore only legitimize an unconstitutional change of government if the former government is deeply undemocratic, as was the case in all other aforementioned cases.
The increasing importance of nonviolent movements in the recognition of governments in international law is not limited to the AU’s normative framework. With regard to Venezuela, the interim government of Juan Guaidó received recognition from multiple states based, inter alia, on its support from nonviolent protests. [see Kriener, Nonviolent Protest Movements and the Recognition of Governments, Heidelberg Journal of International Law, 2020, pp. 881-911].
Similarly, the nonviolent movement in Belarus prompted the European Union and its member states to derecognize Alexander Lukashenko as president. They argued that the widespread protests against Lukashenko were evidence of his demised legitimacy. Therefore, they could not consider him the legitimate representative of the Belarusian state.
Recent developments in international law suggest that nonviolent movements are starting to gain relevance in the law of governmental recognition. In this regard, the AU’s normative framework is the most developed, as the PSC has established a standard when a nonviolent movement can award legitimacy to a new transitional government. The examples of Belarus and Venezuela further demonstrate that this trend is also present in general international law.
Florian Kriener is a Research Fellow at the Max Planck Institute for Public Comparative and International Law in Heidelberg, Germany. His research focuses on the role and regulation of nonviolent protest movements in international law.Read More