Both the ECOWAS and Niger have been in the news for the wrong reason –coup d’etat – in the last few days. ECOWAS has been vocal in this case as it was in the recent coups in Mali, Burkina Faso and Guinea, in none of which it has succeeded in reinstating democratic rule, despite its best efforts and sanctions. With its failures in the three States mentioned previously and the spread in coups within the region, it is not out of place for ECOWAS to seek to take tougher measures.

In situations like this, it is not just about talking measures; it is all about taking measures that will not backfire and yield negative results that would erode whatever is left of the authority of ECOWAS in matters of this nature. The complexities of the situation and consequence of failure or escalation requires the right balance to be struck; a balance that considers the ability of the remaining eleven (11) member States (Mali, Guinea and Burkina Faso, having been suspended and Niger presently under military control) to contribute to military action; the insecurity in the region, Niger’s sheer size and its current strategic importance in the fight against insurgency; the level of poverty in Niger; and external factors).

The Extraordinary Summit   

Though it was expected that the Authority of Heads of States and Governments (the Authority) would take some strict measures in the Extraordinary Summit held in Abuja today (30^th July, 2023), it was not expected that the Authority would go as far as it did to put in place a no-fly zone and threaten military action at the expiration of a seven day ultimatum for the coup Plotters to reinstate President Mohamed Bazoum as the legitimate Head of State and Government of the Republic of Niger.

For the avoidance of doubt, its Communiqué at the end of the Extraordinary Summit on Socio-Political Situation in the Republic of Niger, held in Abuja, Nigeria, having declared, among others, that President Bazoum remains the President of Niger and that only official acts of President Bazoum or his duly-mandated officials will be recognised by ECOWAS, the Authority demanded an immediate release of President Bazoum, his family members and associates. The Authority made it clear that it would not accept any resignation that may purportedly come from President Bazoum.

Threat of Military Action

Departing from its approach in the other three recent coups, the Authority stated that in the event that its demands are not met within one week, it shall take all measures necessary to restore constitutional order in Niger, and that such measures may include the use of force. For this purpose, it mandated the Chiefs of Defence Staff of ECOWAS States to meet immediately. It vowed to hold accountable all those responsible for the violence and terror against lives and properties of innocent citizens and residents.

In apparent reference to Russia and the Wagner group, the Authority condemned the pronouncement of support by foreign governments and military contractors.

No-Fly Zone and Others

In the immediate, the Authority:

• closed all land and air borders between ECOWAS countries and Niger;
• instituted a no-fly-zone on all commercial flights to, and fro, Niger;
• froze all service transactions, including utility services; free the assets of Niger in the Central Banks of member States;
• froze assets of Niger and State enterprises and parastatals in commercial banks;
• suspended Niger from all financial assistance and transactions with all financial institutions, particularly, IBID and BOAD;
• placed travel ban and asset freeze on Military Officers involved in the coup. This was extended same to their family members and civilians who participate in the junta’s activities; and
• called on WAEMU and other regional bodies to implement the decision.

Enforcement Challenges

These decisions are ambitious, but their possible enforcement is problematic and remotely feasible. In the first place, it is unlikely that the borders of Mali and Burkina Faso will be closed to Niger. The possibility of non-closure of those borders is a huge advantage to the Putschists in Niger. With these two countries, Niger is actually in good company in a zone that has become an axis of coup.

In any event, ECOWAS Leaders themselves know how difficult it is to enforce collective border closure in the ECOWAS, either because some States would not faithfully implement closure or because of the porous borders up and down the Community.

Also, with the close cultural and ethnic ties between the Northern part of Nigeria and Niger, for instance, it is illusory to think that there can really be strict land border closure between the two countries, particularly in view of the lengthy majorly unmanned borders. We cannot ignore the fact that it seems the the coup has earned the support of a part of the population, which in itself reflects the ethnic dimension that is implicit in the situation.

The entrenchment of the Wagner Group in Mali and their rumoured relationship with the junta in Burkina Faso should worry ECOWAS Leaders, given the strong possibility that the Coupists would gladly let them into Niger, should that give them even the remotest sense of survival. The signs are obvious. This possibility should greatly worry Nigeria; having such a renegade criminal armed group by the border of a country battling insurgency, is not conducive to peace.

Nigeria should also worry about the possible security risks from Nigerien themselves, given that a distabilised Niger is likely to cause an increase insurgency in Nigeria and definitely result to influx of refugees, which would further be a hit on Nigeria that is facing tough economic situation and also dealing with its own crowd of internally displaced people.

The long line of examples of the failure or inability of the Authority of ECOWAS to enforce its decisions and its perchance for shifting deadlines, do no inspire confidence that these decisions, particularly the no-fly-zone and the seven days ultimatum would be implemented. In any event, it remains to be seen, how the Authority would enforce the no-fly-zone. The same concern can equally be genuinely raised concerning the threat of military action.

The question to ask is how many ECOWAS States are able to commit their resources to military action at this time that many of them are facing economic and security challenges? Perhaps, they are hoping to rely on American and French Forces for the actualisation of the threat. If that is the case, hopefully, the Authority would carefully count the costs of such reliance on the region and the ability of ECOWAS to assert itself in its best interest.

The Legality of Threat or Use of Force in Niger

As per the legality of the threat issued by ECOWAS, when viewed from the prism of the United Nations Charter (articles 2(3), 52 and chapter 7) alone, it would be illegal, as it is only the United Nations Security Council (UNSC) that the Charter has bestowed right to make and enforce such threats, except where there is a UNSC delegation of its powers to regional agencies, like ECOWAS, in specific circumstances.

Nevertheless, consent is an antidote to the UN Charter prohibition. The relevant consent in the case of Niger is not that of President Bazoum, who is not in the position to give consent presently, having been held hostage. The relevant consent of member States of ECOWAS, including Niger, is contained in article 58 of the 1993 Revised Treaty. It is more explicit in the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, 1999, as supplemented by the 2001 Protocol A/SP1/12/01 on Democracy and Good Governance, to which Niger is a party.

The 2001 Protocol, with an expanded mandate on democracy and good governance, consolidated the promotion of democracy, as a core value of the ECOWAS as provided for in article 4(j) of the 1993 Revised Treaty.

By the 1999 Protocol, ECOWAS could intervene in a member State in crisis, which was defined to mean a: “Member State experiencing an armed conflict as well as a Member State facing serious and persisting problems or situations of extreme tension which, if left unchecked, could lead to serious humanitarian disaster or threaten peace and security in the subregion or in any Member State affected by the overthrow or attempted overthrow of a democratically elected government.” (Emphasis supplied)

By article 25, the intervention Mechanism was to be activated in the event, among others, “of internal conflict that threatens to trigger a humanitarian disaster, or that poses a serious threat to peace and security in the sub-region …. an overthrow or attempted overthrow of a democratically elected government”.

On the strength of these provisions, consented to by Niger, we are confident that the right of ECOWAS to intervene in this instance is backed by law, which is a very different question from whether all other parameters favour the treat or actual use of military intervention. Perhaps the next one week shall tell!

Having said that, however, we bear in mind article 103 of the Charter of the United Nations, by which no member State is entitled to enter into an obligation that is contrary to Charter obligations. As a result, it is useful to acknowledge the overall power of the United Nations Security Council (UNSC) to characterise the situation in Mali as a threat to international peace and security and take charge under its Chapter VII powers. It could even characterise the ECOWAS’ threat of intervention or actual intervention a violation of article 2(4) of the Charter and consequently a breach of international peace and security. After all, the UNSC refused to support intervention in Mali in 2012, which led to the postponement of the intervention to a later date. It may thus take the view that the ECOWAS provisions cited above are at variance with the Charter obligations of ECOWAS member States and therefore of no effect. With the veto of the United States, Britain and France, which have all supported the decision of ECOWAS, it is however unlikely that the UNSC would take such a stance. For the possible use of veto by Russia and China, it is also unlikely that the UNSC will take measures against Niger.

The legality of the planned intervention, and or its success, if eventually engaged, notwithstanding, we do not think military solution is the right step to take at this time. The military threat that was issued today is, in our opinion, quite premature.   

ECOWAS’ Slide into Dictatorship

In any event, ECOWAS needs to take serious step to halt the slide into dictatorship regimes in member States. As the attendance at this Extraordinary Summit shows, only eleven of fifteen States were entitled to attend. This is because Mali, Guinea and Burkina Faso were not entitled to attend and Niger would not be invited to attend, notwithstanding the statement that the President of Niger was represented. Interestingly, the name or rank of the representative was not stated.

The Essentiality of the ECOWAS Constitutional Convergence Principles

We cannot but continue to stress the need for ECOWAS to accord the needed seriousness to democracy and democratic culture; human rights protection; anti-corruption; and poverty eradication. When these are absent, the quest for unconstitutional rule becomes inevitable. ECOWAS Leaders must all religiously and rigorously commit themselves to the constitutional convergence principles of the 2001 Protocol on Democracy and Good Governance.  It is hoped that ECOWAS would pay the needed attention to the fact that the coups and counter coups ECOWAS has seen recently are all in countries colonised by France. This may not be without significance. Hopefully, ECOWAS would figure things out in good time enough before the entire community is consumed!

@Centre for Community Law, 2023

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By Paul Ejime

ECOWAS leaders are to hold an emergency summit in Abuja, Nigeria on Sunday to discuss the political and security situation in Niger following the military coup that toppled the government of President Mohamed Bazoum on Wednesday.

Brig.-Gen Tiani Abdourahamane, Head of the Presidential Guard appeared on national television on Friday as leader of the new ruling military National Council.

The armed forces have pledged support to the coup leaders.

Niger borders have been closed, national institutions including the Parliament suspended, and public demonstrations are banned.

A group of military officers had announced on Wednesday that President Bazoum had been removed.

They accused him of corrupt leadership and failure to end insecurity in Niger, considered one of the poorest countries in the World despite its rich natural resource.

The Niger coup, the seventh in West and Central Africa following the military takeover in neighbouring Mali in 2020, has been widely condemned internationally, including by the U.S. EU, ECOWAS and France, the former colonial power in Niger.

Nigeria’s President Ahmed Bola Tinubu, who had warned against unconstitutional change of governments after assuming the Chair of the ECOWAS Authority of Heads of State and Government in early July, is reported to have dispatched delegations to mediate in the Niger leadership crisis.

In its second statement in as many days condemning the Niger coup in the strongest terms, the ECOWAS Commission has also demanded the unconditional release of Bazoum detained by the putschists.

Faced with grave socio-economic challenges and the baggage of corrupt and poor leaderships, and three of its member States – Mali, Guinea Conakry, and Burkina – under military rule, ECOWAS is running out of effective options to arrest the regression of democracy in the region of more than 400 million people.

Will the Niger coup makers be forced out without harm to those they are now holding as bargaining chops, or can the stalemate be resolved diplomatically?

Embattled President Bazoum and his predecessor, former President Mahamadou Issoufou, who literally anointed him in 2021, are close allies of the West. 

France relocated its troops to Niger after they were sacked by the Col. Assimi Goita-led military regime in Mali.

America and some Western countries also have troops in the Sahel region, including Niger, where they are helping to fight terrorism and Islamic Jihadist insurrection.

Did Bazoum, who is considered to be of Arab extraction annoy Paris, or did he step on the toes of any of his powerful allies?

Perhaps, only time will tell!

The post ECOWAS EXTRAORDINARY SUMMIT ON NIGER IN ABUJA ON SUNDAY appeared first on Center for Community Law. written by Guest

Sadly, it is now beyond speculation and uncertainty: Niger has joined the ranks of ECOWAS States under military rule, climaxing the events that commenced on 26 July, 2023. With this situation, the neigbouring countries of Burkina Faso, Niger and Mali have become an axis of coup. This contagion or imitation must stop!

In our reflection on the issue on 26 July, 2023, we wondered what the ECOWAS, the AU and all other States that condemned the action and called on the Coupists to stand down, would do, should they fail to heed the clarion call, as they have just done.

Judging from the lacklustre progress and frequent shifts in the transition timetables agreed between ECOWAS and the Juntas in Burkina Faso, Mali, and Guinea, one cannot but wonder what ECOWAS and the AU will now do differently.

On our part, we believe it is time enough for the ECOWAS, which plays a seemingly active role, howbeit half-heartedly, in preventing coups and transiting to civilian rule where coup happens, to adopt a different strategy to preventing coups and terminating military rules before the sub region is consumed by coups.

ECOWAS should move away from indiscriminate sanctions that punishes everyone to targeted sanctions against the Coupists, their family members and associates. Indiscriminate sanction only further punishes the people on whose behalf ECOWAS and other foreign efforts are acting.

The situation in Niger is more dire and complicated by the level of poverty and insecurity plaguing the country. Attention must be paid to the fact that Niger has so far played the role of a strong line of defence against insurgency in the sub region.  

With the even greater threat of the Wagner Group waiting in the wings to get into the fray, as they are currently doing in Mali, the situation is delicate and must be handled with utmost care.

Given the situation on ground in Niger and many West African States, one cannot argue with the excuses given by Colonel Amadou Abdramane, that they decided to “put an end to the regime that you know due to the deteriorating security situation and bad governance”. However, one can always argue with the decision of the military to cease power, as it has never been shown that the military is ever been able to solve the problems they identify as the reason for toppling the government. They only complicate the problems. In any event, insecurity is an indictment on the military itself.

Nevertheless, and as we have always stated, the answer to coup is good government; free, fair and transparent elections; respect for human rights and rule of law.

When these are not provided by a government, and the military takes advantage of the failings, the international community may react all it likes, the people’s tendency to welcome the abnormal government would remain unaffected by whatever the international community is saying or doing.

More than ever before, the Authority of Heads of State and Government of ECOWAS must unite around the constitutional convergence principles in the 2001 Supplementary Protocol on Democracy and Good Governance and challenge themselves to adhere religiously and holistically to them.  

The constitutional principles to be shared by all Member States:

• Separation of powers – the Executive, Legislative and Judiciary. – Empowerment and strengthening of parliaments and guarantee of parliamentary immunity. – Independence of the Judiciary: Judges shall be independent in the discharge of their duties. – The freedom of the members of the Bar shall be guaranteed; without prejudice to their penal or disciplinary responsibility in the event of contempt of court or breaches of the common law.
• Every accession to power must be made through free, fair and transparent elections.
• Zero tolerance for power obtained or maintained by unconstitutional means.
• Popular participation in decision-making, strict adherence to democratic principles and decentralisation of power at all levels of governance.
• The armed forces must be apolitical and must be under the command of a legally constituted political authority; no serving member of the armed forces may seek to run for elective political.
•  Secularism and neutrality of the State in all matters relating to religion; freedom for each individual to practise, within the limits of existing laws, the religion of his/her choice everywhere on the national territory. The secularism shall extend to all parts of the State, but shall not deprive the State of the right to regulate, with due respect to human rights, the different religions practised on the national territory or to intervene when law and order break down as a result of any religious activity.
•  The State and all its institutions belong to all the citizens; therefore none of their decisions and actions shall involve any form of discrimination, be it on an ethnic, racial, religion or regional basis.
• The rights set out in the African Charter on Human and People’s Rights and other international instruments shall be guaranteed in each of the ECOWAS Member States; each individual or organisation shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution established within the framework of an international instrument on Human Rights, to ensure the protection of his/her rights. In the absence of a court of special jurisdiction, the present Supplementary Protocol shall be regarded as giving the necessary powers to common or civil law judicial bodies.
• Political parties shall be formed and shall have the right to carry out their activities freely, within the limits of the law. Their formation and activities shall not be based on ethnic, religious, regional or racial considerations. They shall participate freely and without hindrance or discrimination in any electoral process. The freedom of the opposition shall be guaranteed. Each Member State may adopt a system for financing political parties, in accordance with criteria set under the law.
•  The freedom of association and the right to meet and organise peaceful demonstrations shall also be guaranteed.
•  The freedom of the press shall be guaranteed. l) All former Heads of State shall enjoy a special status including freedom of movement. They shall enjoy special benefits compatible to their status as former Heads of State. 

Unfortunately, the leaders of the region are wont to pay lip service to these principles and only attempt to take action to emphasise ‘zero tolerance for unconstitutional change of government’, but this is mostly only where there is a coup; only then do they call extraordinary summits here and there and at very short notices. The leaders must re-channel their energies and do so purposively and proactively.

Beyond this, the ECOWAS Leaders must begin to look beyond the region and the multiple problems to foreign States or groups that may be promoting coups in the region.

ECOWAS Leaders must get very proactive and truly unite against coup, its causes and sponsors.

@centre for community law, July, 2023

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In May 2023, the ECOWAS Community Court of Justice, worried about the rising spate of coup d’etat within the region and its impact on the rule of law and national development, hosted a national conference in Banjul at The Gambia on the subject. Leaving nothing to doubt, the theme of the conference was ‘Ecowas Zero Tolerance for Unconstitutional Change of Government’.

The Conference was well attended by legal experts, judges of national and international courts, members of the academia, heads of ECOWAS institutions, officers of States, etc. After extensive deliberations, the conference issued a communiqué on steps to be taken to stem the current tide of coup within the region. It is worthy of note that the court’s effort was to complement the efforts of the Authority of Heads of States and Governments to deal with the situations in Guinea, Mali and Burkina Faso, though it appears the Authority is doing too little or its tactics are just not right for the situation.

As news trickled in on Wednesday that the Presidential Guards are holding President Mohamed Bazoum captive inside the Presidential Palace in the Nigerien Capital, there are fears that Niger may join the list of ECOWAS States in which a coup has taken place in recent times. Will Niger become the fourth ECOWAS State where military juntas hold sway?  

As expected, the ‘Unpleasant Developments in Niger Republic, as President Bola Tinubu, the President, Federal Republic of Nigeria and Chairman, ECOWAS Authority of Heads of State and Government, termed it, has attracted commendation from diverse sources.

In a statement released earlier today, President Tinubu stressed that no situation that incapacitates the democratically-elected Government of Niger will be tolerated and that ‘[t]he ECOWAS leadership will not accept any action that impedes the smooth functioning of legitimate authority in Niger or any part of West Africa’. According to him, ‘we are closely monitoring the situation and developments in Niger and we will do everything within our powers to ensure democracy is firmly planted, nurtured, well rooted and thrives in our region’. Apart from speaking for the ECOWAS Authority, the President and Chairman went on to assure the people of Niger of the support of Nigeria. According to him ‘[a]s the Chairperson of ECOWAS Authority of Heads of State and Government, I state without  equivocation that Nigeria stands firmly with the elected government in Niger and equally conveys the absolute resolve of leaders in our sub-region that we shall not waiver or flinch on our stand to defend and preserve constitutional order’.

On its part, the ECOWAS Commission has also issued a statement to condemn in the strongest term the attempt to seize power by force’ with a demand that the democratically elected President Bazoum be unconditionally released immediately and a threat that the international community would hold all those involved responsible. In a statement released in its twitter handle, the African Union Commission also condemned the on-going coup situation and demanded an unconditional release of the President.

It is hoped that the coup plotters would heed these numerous calls and terminate their criminal enterprise immediately; we also hope appropriate action would be taken to normalise the situation should they not heed the calls.

Beyond that, as has been continuously said by several concerned citizens of the region, the best panacea to coups are free, fair and transparent elections, good government and the enthronement of the rule of law. When any or all of these foundational requirements for a democratic and prosperous society are absent, the tendency for disgruntled, and perhaps, ill advised opportune members of the society to resort to unconventional means of changing their government may just become a heroic venture.

While dealing with this situation, the Centre for Community Law would like to invite the civilian Heads of States and Governments of ECOWAS States to do a deep introspection on their actions and omissions and how such reflect on their people. They must begin to take serious action towards ensuring that all governments are fulfilling the constitutional convergence principles of the 2001 ECOWAS Protocol on Democracy and Good Governance. Such would do better than the release of statements after the fact of coups.

@Cfcomlaw, 26 July, 2023    

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