Erika de Wet, 'The African Union’s Struggle Against ‘Unconstitutional Change of Government’: From a Moral Prescription to a Requirement under International Law?' (2021) EJIL 1-28.
In 1992 Thomas Franck proclaimed an emerging right to democratic governance in international law. With reference to developments in the Organization of American States (OAS) and the Commission on Security and Cooperation in Europe, he identified free and fair elections as the core benchmark of this right, possessing significant legitimacy in terms of its pedigree, determinacy, coherence and adherence. The current contribution examines Franck’s understanding of the right to democratic governance within the African context, notably in relation to those institutional developments that have occurred since the adoption of the Constitutive Act of the African Union (AU) in 2000. Specifically, the article assesses the benchmarks of the notion of ‘unconstitutional changes of government’ in Article 4(p) of the AU Constitutive Act and their inter-linkage with free and fair elections. In so doing, it critically questions the response of the AU to unconstitutional changes of government and its implications for the normative maturity of the benchmark in question. It places the analysis in a broader context by drawing some parallels with the current back-sliding in democratic governance that is occurring also within the Council of Europe (CoE) and the European Union.
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