A cru­cial test for the rule of law

The Gam­bia is a sound­ing board for west Africa’s re­solve to pro­tect democ­racy, writes

The Star Early Edition - - INSIDE -

THE Gam­bia is an op­por­tu­nity to re­in­force elec­tion-qual­ity norms for the Eco­nomic Com­mu­nity of West African States (Ecowas).

The 15-mem­ber regional group was ini­tially set up as a trad­ing bloc. But it has in­creas­ingly pur­sued an agenda of try­ing to en­sure that coun­tries ap­ply prin­ci­ples of democ­racy, the rule of law and good gov­er­nance. This mo­ti­va­tion has its roots in pro­tect­ing civil­ian gov­ern­ments from mil­i­tary coups and pre­vent­ing civil con­flict in west Africa.

In con­trast to other African regional or­gan­i­sa­tions, such as the South­ern African Devel­op­ment Com­mu­nity (SADC) and the East African Com­mu­nity (EAC), Ecowas has pi­o­neered norms around elec­tion con­di­tions and ob­ser­va­tion. This has in­cluded “zero tol­er­ance for power ob­tained or main­tained by un­con­sti­tu­tional means”.

For Ecowas, con­sti­tu­tion­al­ism has in­creas­ingly be­gan to trump na­tional sovereignty.

The events un­fold­ing in The Gam­bia present a cru­cial test for the regional body’s com­mit­ment to this prin­ci­ple.

On De­cem­ber 2 Pres­i­dent Yahya Jam­meh con­ceded de­feat shortly be­fore the In­de­pen­dent Elec­toral Com­mis­sion an­nounced that op­po­si­tion leader Adama Bar­row had won the elec­tion. A week later he with­drew his con­ces­sion.

Even be­fore the elec­tions it had been widely ex­pected that Jam­meh would try to rig the out­come. This would not have been out of char­ac­ter for a regime that has con­sis­tently sup­pressed po­lit­i­cal dis­sent and crit­i­cal me­dia.

Prior to the De­cem­ber elec­tion, Ecowas chal­lenged Jam­meh’s be­hav­iour in power. Based on a pre-elec­tion as­sess­ment, it con­cluded that the min­i­mal con­di­tions for free and fair elec­tions were not be­ing met. It said it would not be send­ing ob­servers, a de­ci­sion it had also taken ahead of The Gam­bia’s 2011 pres­i­den­tial elec­tion.

The Gam­bian elec­tion dis­pute is not the first that Ecowas has con­fronted. Ivory Coast’s 2010 pres­i­den­tial elec­tion is a case in point. The coun­try’s elec­toral com­mis­sion de­clared that Alas­sane Ou­at­tara had won the sec­ond round. But, with the power to re­view the elec­tion, the Con­sti­tu­tional Court headed by an ally of the in­cum­bent Lau­rent Gbagbo can­celled the re­sults in sev­eral Ou­at­tara strongholds and handed Gbagbo the elec­tion.

Ecowas, co-op­er­at­ing with the UN in Ivory Coast, re­jected what it viewed as an ob­vi­ous ma­nip­u­la­tion of the re­sult by the court.

It went on to re­ject any power-shar­ing ar­range­ments be­ing ne­go­ti­ated. This was de­spite the fact that the AU, in par­tic­u­lar Gbagbo’s ally An­gola, had floated the idea.

Ecowas’s stance was driven by a num­ber of fac­tors. These in­cluded:

• The fail­ure of power-shar­ing agree­ments in Kenya (2008) and Zim­babwe (2008). Ecowas feared that a power-shar­ing ar­range­ment would open the door to sim­i­lar agree­ments spread­ing like a can­cer in the re­gion. This would mean that los­ing can­di­dates and par­ties would al­ways ex­pect power-shar­ing agree­ments.

• Its view that power-shar­ing puts a coun­try out­side nor­mal con­sti­tu­tional pro­ce­dures, con­tra­ven­ing the norms of con­sti­tu­tion­al­ism.

Another fac­tor in­flu­enc­ing its de­ci­sion was Gbagbo’s poor re­la­tions with neigh­bour­ing coun­tries, in­clud­ing Burkina Faso, Togo, and Nige­ria.

As a re­sult Ecowas sided with Ou­at­tara and, with back­ing from the UN and France, or­gan­ised mil­i­tary in­ter­ven­tion.

There are cer­tainly dif­fer­ences be­tween The Gam­bia and Ivory Coast, but a sim­i­lar dy­namic ap­pears to be at work. In The Gam­bia, the elec­tion com­mis­sion also de­clared the op­po­si­tion the win­ner. De­spite its crit­i­cal stance be­fore the elec­tions Ecowas ac­cepted the re­sult be­cause the poll had taken place in line with The Gam­bia’s con­sti­tu­tional frame­work.

But, just as Gbagbo had done, Jam­meh looked for ways to stall the process. He did this by pur­su­ing an elec­tions dis­pute res­o­lu­tion at the Supreme Court. The prob­lem was that the Supreme Court did not have the req­ui­site judges to hear a case. In ad­di­tion, as in Ivory Coas­tre’s Con­sti­tu­tional Court case, the in­de­pen­dence of the court is ques­tion­able.

Ecowas is un­likely to be fooled by Jam­meh’s le­gal ac­ro­bat­ics, just as it wasn’t in Ivory Coast.

This stands in con­trast to com­pa­ra­ble tac­tics work­ing in other re­gions. One ex­am­ple was Robert Mu­gabe’s move in Zim­babwe to sup­press Mor­gan Ts­van­gi­rai and his sup­port­ers be­fore the sec­ond round of the 2008 pres­i­den­tial elec­tion. Even though SADC ob­servers and states con­demned the vi­o­lence, the regional body did not fa­cil­i­tate a fair so­lu­tion to pre­vent whole­sale ma­nip­u­la­tion.

Like­wise, the EAC at­tempted to me­di­ate the po­lit­i­cal dis­pute around Bu­rundi’s flawed 2015 elec­tion. Yet the se­lec­tion of Uganda’s Yow­eri Mu­sev­eni to lead me­di­a­tion ef­forts – a man who doesn’t sup­port term lim­its – showed that the EAC was not se­ri­ous about po­lit­i­cal di­a­logue.

Ecowas is likely to be­have dif­fer­ently when it comes to The Gam­bia. It has shown that it be­lieves con­sti­tu­tion­al­ism and the trans­fer of power is a pri­or­ity.

Ar­ti­cle 9 of the Ecowas Pro­to­col on Democ­racy and Good Gov­er­nance states that: “The party and/or can­di­date who loses the elec­tion shall con­cede de­feat to the po­lit­i­cal party and/or can­di­date fi­nally de­clared the win­ner, fol­low­ing the guide­lines and within the dead­line stip­u­lated by the law”.

The se­ri­ous­ness of this com­mit­ment was seen in Ivory Coast.

It is fur­ther but­tressed by a bur­geon­ing coali­tion of heads of state who were for­merly op­po­si­tion lead­ers. Nana Aku­foAddo (Ghana), Muhammadu Buhari (Nige­ria), Macky Sall (Sene­gal), Ellen John­son Sir­leaf (Liberia), and Ou­at­tara in Ivory Coast all have sig­nif­i­cant ex­pe­ri­ence in the po­lit­i­cal op­po­si­tion be­fore be­ing elected. The fact that they are the prod­uct of a trans­fer of power makes them more will­ing to push for a trans­fer of power in The Gam­bia to re­in­force the regional norm.

This is not the case in the EAC or SADC, where coun­tries are still largely be­holden to the old guard of rul­ing po­lit­i­cal par­ties and elites. There are another three cru­cial fac­tors. Regional iso­la­tion al­lows Ecowas to be tough on Jam­meh. There is lit­tle ev­i­dence that he has friends in west Africa. He made him­self un­pop­u­lar by an­nounc­ing that The Gam­bia was leav­ing the ICC. He also alien­ated neigh­bours by ve­to­ing the norm of es­tab­lish­ing pres­i­den­tial term lim­its.

Ecowas has also shown it has the abil­ity to gather and as­sim­i­late in­for­ma­tion about po­lit­i­cal pro­cesses, in­clud­ing elec­tions. Although it didn’t de­ploy an elec­tion ob­ser­va­tion mis­sion in The Gam­bia, the sec­re­tar­iat is likely to be re­ceiv­ing use­ful in­for­ma­tion from an ad­vanced early warn­ing unit. This was de­signed to mon­i­tor con­flicts and pro­vide po­lit­i­cal anal­y­sis.

Ecowas also con­sis­tently col­lab­o­rates with the UN in me­di­a­tion and in­ter­ven­tion ef­forts. Other regional bod­ies largely pre­fer to act in­de­pen­dently. Ecowas reg­u­larly con­sults with the UN Se­cu­rity Coun­cil. It did so after the 2010 Ivory Coast elec­tion and has done so again over the Gam­bian elec­tion. These con­sul­ta­tions are likely to pro­vide ad­di­tional in­ter­na­tional sup­port for in­ter­ven­tion, which in­cludes mo­bil­is­ing UN as­sets if nec­es­sary. The AU also seems sup­port­ive of Ecowas’ ef­forts by re­fus­ing to recog­nise Jam­meh as pres­i­dent past Jan­uary 18.

Fi­nally, Ecowas has been will­ing to set time ta­bles with con­se­quences. This was made clear in state­ments from Ecowas heads of state that Jam­meh must step down on Jan­uary 18 to al­low a trans­fer of power or face pos­si­ble mil­i­tary in­ter­ven­tion. The one ma­jor con­sid­er­a­tion for Ecowas is how to han­dle a po­ten­tial show­down with The Gam­bia’s mil­i­tary if in­ter­ven­tion be­comes nec­es­sary.

Fail­ure to se­cure a full trans­fer of power in The Gam­bia could af­fect Ecowas’s ef­forts to man­age other dis­putes in the fu­ture. And, sup­port­ing a power-shar­ing agree­ment could bring about a se­ries of desta­bil­is­ing post-elec­tion out­comes. This means that Jam­meh is likely to leave power – or feel the col­lec­tive weight of the re­gion. – The Con­ver­sa­tion Peter Pe­nar is Re­searcher and PhD can­di­date in the Depart­ment of Po­lit­i­cal Sci­ence, Michi­gan State Univer­sity.

BACK­ING UP: Cars line up in Seleki, Sene­gal, at the bor­der with Gam­bia on Wed­nes­day.

TENSE: The Na­tional Assem­bly build­ing in Ban­jul.

FIGHT­BACK: Gam­bian pres­i­den­t­elect Adama Bar­row.

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