via Zim wants ‘popular uprisings’ criminalised – DailyNews Live 2 JUNE 2014
Zimbabwe has flatly refused to identify itself as an ally of the popular uprisings in North Africa, amid debate in the African Union (AU) that the putsch represented real democratic revolutions.
Emmerson Mnangagwa, Zimbabwe’s Justice and Legal Affairs minister, at the first meeting of government legal experts of the specialised technical committee on Justice and Legal Affairs held recently at the AU headquarters in Addis Ababa, called for the criminalisation of “popular uprisings.”
Amid debate by African legal experts that people have the right to change their government when all other amicable and constitutional means of replacing that government do not exist, Mnangagwa expressed reservation at a proposal before the working group that the AU stop banning revolutions necessitated by prevailing unconstitutional governance in a country.
“The meeting agreed to propose the text as recommended by the working group for consideration of the ministers along with the following reservations: Zimbabwe — Article 28 E (3) should be expunged from the draft protocol as creating an exemption to the criminalisation of a “popular uprising” would be contrary to the preceding sub paragraph 1, which already criminalises a “putsch” that connotes the same meaning,” said official AU resolutions of the meeting of legal experts held between May 6 – 14.
Historically, Africa has experienced more than 100 coups d’état, but more recently, popular uprisings known as Arab Spring have toppled the leaders of four nations including Egypt, Libya, Tunisia and Yemen in the past 22 months.
Civilians also have rebelled in Bahrain and Syria. And large-scale protests have occurred in six other nations from Morocco on the Atlantic to Kuwait on the Persian Gulf.
Western countries have played a behind-the-scenes role in the power transfers in Libya and Egypt, with foreign warplanes helping rebels oust Libya’s mercurial Muammar Gaddafi and diplomats helping expedite the departure of Egypt’s Hosni Mubarak, a 30-year ally of five consecutive American presidents.
The stability brought about by those authoritarian rulers has been replaced by the tumultuous present and an uncertain future that policy makers are scrambling to come to grips with.
The AU’s Peace and Security Council is grappling with these unconstitutional changes of governments or revolutions, and has tasked the legal experts to look into the matter. The AU has legal instruments to deal with unconstitutional changes of government namely the African Charter on Democracy, Elections, and Governance (the Addis Charter); the Lomé Declaration of July 2000 on the Framework for an OAU Response to Unconstitutional Changes of Government (the Lomé Declaration).
The legal experts debated a proposal to recognise revolutions as extra-constitutional and therefore different from unconstitutional events, a definition flatly rejected by the Mnangagwa-led delegation.
The argument is that both the letter and the spirit of the AU laws support public demands to ensure the general will of the people and that the normative framework aim at entrenching constitutionalism and establishing constitutional regimes in Africa.
The Peace and Security Council of the AU has adopted a definition of popular uprisings in the context of unconstitutional change of government, setting out the conditions of the African court in exercising this jurisdiction.
It describes “popular uprisings” as an expression of people’s free will against oppressive governments or lack of adherence to the rule of law in their countries.
This will be tabled before the Assembly of the AU, and proposes that the African Court of Human and Peoples’ Rights (ACHPR) should not exercise jurisdiction on unconstitutional changes with respect to popular uprising.
Zimbabwe has rejected this, and wants the ACHPR to hand down harsh punishment on those who engage in popular uprisings.
Proponents of this new paradigm argue that the legislative intentions of the Lomé Declaration and the Addis Charter do not ban revolutions necessitated by prevailing unconstitutional governance in a country. Some in the AU have previously supported popular demands for changes of illegitimate governments, saying the right to revolution is not only an entitlement of the people but also an obligation when a government breaches the trust it enjoyed from the people.
Since revolution is carried out outside the normal procedures of a constitution, it becomes extra-constitutional, proponents for popular revolts say.
From this perspective, revolution is an extra-constitutional legitimate means of replacing a government when the desired change of government is not available through constitutional means
The outcome of the ongoing AU meetings will largely form the basis for a broader debate in the Assembly of the AU on the prevention of unconstitutional changes of government, popular uprisings and their effective resolution on the continent.