Lack of Free, Fair, Transparent Elections as a Key Source of Conflict: Holding ECOWAS Member States accountable for their treaty obligations, 1

Abstract:

Political scientists have no consensus on what constitutes a “free, fair and transparent election.” Indeed, some argue that there is no free or perfect election, and that fairness and transparency are relative terms. Instead, many scholars prefer to talk about an election’s acceptability, credibility, or integrity.

Even so, there is a general agreement on the fundamental principles based on the 1948 Universal Declaration of Human Rights in relation to election as enshrined in most national constitutions.

According to Article 21 of that Declaration: “Everyone has the right to take part in the government of his (or her) country, directly or through freely chosen representatives.” It goes further: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

The electoral normative frameworks of many countries or regional organizations, such as the African Charter on Human and People’s Rights, the Africa Union’s Declaration on the Principles Governing Democratic Elections and the 2001 Supplementary Protocol on Democracy and Good Governance of the Economic Community of West African States (ECOWAS), all derive their legal basis from the Universal Declaration on Human Rights.

There is also the yet-to-be ratified 2014 Malabo Protocol expanding the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to cover crimes under international law as well as transnational crime, with provision for the prosecution of politicians, soldiers and mercenaries who subvert constitution rule in Africa.

This paper examines the Parameters of Free, Fair and Transparent Elections as an essential source of Conflict resolution in the ECOWAS region within the context that elections are the sine qua non of multi-party democracy. Yet, without other important elements, such as constitutional term limits, protection of fundamental human and minority rights, multi-party system, political inclusivity, judicial independence, separation of powers enshrined in the Constitution, accountability and transparency, economic freedom and the rule of law, elections by themselves cannot guarantee freedom or good governance.

After all, dictatorships do hold elections. But as also noted by the Democracy Web, on the Insufficiency and abuse of Election, “Dictatorships make evident the notion that the holding of an election, in and of itself, is insufficient to establish or sustain democracy.”

Holding periodic elections under “different democratic governments” in West Africa, without the other vital ingredients of democracy, has not and will not guarantee good governance. Instead, this has become the trigger and driver of conflicts and instability on the African continent, especially in West Africa, which has been labelled the “coup zone,” given the constant military incursions into politics in the region.

This paper will also examine how to hold ECOWAS member States accountable for their Treaty Obligations and the application of Sanctions Regimes to wayward administrations or individuals.

 

Introduction:

Definition of an Election

An Election is a process and a multi-stakeholder enterprise. It is considered the sine qua non of multi-party democracy. For this presentation, let us consider a practical definition by an authority, who is described as “an encyclopaedia” on African elections.

 

An election “is a contest among political parties and candidates to occupy positions of authority in a country; a contest mediated by an electoral commission; and… decided by the votes of the electorate,” (K. Afari-Gyan, 2023).

 

Other key stakeholders in the electoral process are the electoral commission; security agencies tasked with electoral security and handling election-related cases; civil society organizations; the government in power, which provides money for the electoral process; the courts, responsible for adjudicating electoral matters, the media, which provides platforms for the dissemination of election information, such as voter registration, the electorate, and development partners, who provide financial or technical support.

 

For the electoral process to succeed, every actor or stakeholder must play their part under defined rules of engagement at all stages of the electoral cycle – before, during, and post-election period.

 

However, no matter how free, fair, and transparent, elections alone cannot guarantee freedom, democracy, or good governance. On the contrary, elections have been a significant source of violent conflicts and political instability in the ECOWAS region.

 

While political scientists and constitutional experts differ on what constitutes a “free, fair and transparent election,” there is an agreement on some fundamental requirements which derive from the 1948 Universal Declaration of Human Rights and similar internationally accepted instrumentalities.

 

“Everyone has the right to take part in the government of his (or her) country, directly or through freely chosen representatives,” notes Article 21 of the 1948 Universal Declaration: It further states: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

 

Furthermore, the normative frameworks of many regional organizations, such as the African Charter on Human and People’s Rights, the Africa Union’s Declaration on the Principles Governing Democratic Elections in Africa, and the ECOWAS 2001 Supplementary Protocol on Democracy and Good Governance, all derive their legal basis from the Universal Declaration on Human Rights.

 

However, experiences in the ECOWAS region have shown that without other essential elements of democracy, such as constitutional term limits, protection of fundamental human and minority rights, multi-party system, political inclusivity, judicial independence, separation of powers enshrined in the Constitution, accountability and transparency, economic freedom and the rule of law, elections by themselves have become recipes for conflicts and political instability.

 

ECOWAS was set up on the 28th of May 1975 through the Treaty of Lagos to foster economic development and regional integration. But the organization faced peace and security challenges shortly afterwards, beginning with the Liberia civil war in 1989.

 

While economic development was its core objective, reality informed the injection of peace and security into the regional integration agenda, starting from 1990 when the Authority of Heads of State and Government directed the transfer of the responsibility for ECOWAS affairs to the Ministries of Foreign Affairs or Regional Integration followed by the transformation from an Executive Secretariat to a Commission in 2007 and Vision 2050 as the latest regional aspiration.

 

Key Normative Frameworks:

 

1. A politico-military Standing Mediation Committee and the ECOWAS Ceasefire Monitoring Group (ECOMOG) were created in 1990 to spearhead regional interventions and these facilitated the end of the civil wars in Liberia and Sierra Leone followed by a common stance on political governance. The ECOWAS Community Court was also established through another protocol in 1990 and all these measures were instrumental in allowing the Organisation to assume the dynamic posture, which it had projected until recently.

 

2. The Authority’s Declaration on Political Principles in 1991 also reaffirmed the Community’s commitment to democracy and a free market. To achieve uniformity on the roadmap to integration, the ECOWAS Revised Treaty in 1993 created the Community Parliament and other institutions, conferring supranational status on the regional Organization.

 

3. In December 1999, the ECOWAS Authority enacted the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security (or The Mechanism), to guide the construction of regional peace and security architecture. This instrument, which inspired the adoption of a similar Mechanism by the African Union several years later, has provisions for the Mediation and Security Council and the Council of the Elders/Wise as additional tools for conflict prevention, mediation, and resolution towards consolidating peace and security in the region.

 

4. The Supplementary Protocol on Democracy and Good Governance was adopted in 2001 as an integral part of The Mechanism setting minimum constitutional convergence criteria for ECOWAS membership based on shared values of democracy and free market, separation of powers, popular participation, the democratic control of the armed forces, guarantees of fundamental freedoms and, especially ‘zero tolerance’ for power obtained or maintained by unconstitutional means.

 

5. The ECOWAS Conflict Prevention Framework (ECPF), adopted in 2008, and the Monrovia Declaration of 2010, were the other instruments adopted to strengthen the ECOWAS peace and security architecture, emphasizing preventive diplomacy and proactive mediation responses.

 

To ensure compliance with the normative frameworks and institutional instruments, ECOWAS leaders had maintained a principled stance with a strong political will, applying enormous pressure to check wayward administrations through a combination of sanctions and preventive diplomacy before reversals of the past two decades.

 

As part of its conflict prevention framework, ECOWAS also has an Early Warning System under a directorate that collaborates with state and non-state actors, civil society organizations and NGOs, to monitor and report threats to peace and security in the region.

 

Using the carrot and stick strategy, ECOWAS was able to suspend three member States – Guinea, Niger, and Cote d’Ivoire – between 2009 and 2010 for violating the Supplementary Protocol. With the cooperation of the African Union, the United Nations and other partners, the Organization also restored constitutional order and legality in Guinea, Niger, and Cote d’Ivoire, among others.

*Presentation by Paul Ejime at the 2023 International Conference organised by the ECOWAS Court of Justice