The African Court’s Jurisdiction over the Crime of Unconstitutional Change of Government and the African Union’s Sanctions Regime: A Comparative Analysis

Abstract

This paper provides a comparative assessment of the criminalisation of unconstitutional change of government before the proposed African Court of Justice and Human Rights (African Court), and the African Union’s sanctions regime, which is part of its legal and policy framework to respond to unconstitutional change of government. Using Niger and Gabon as case studies, the paper examines the efficacy of the African Union (and the Economic Community of West African States, in the case of Niger) sanctions regime in response to the recent military coups in these selected countries. It is argued that the African Union’s policy and legal framework in response to unconstitutional change of government and the sanctions regime have not been effective in countering the scourge of unconstitutional change of government on the African continent. The paper then examines the potential of Article 28E of the Malabo Protocol, which criminalises unconstitutional change of government, to effectively address the problem of recurring unconstitutional change of government in Africa. It concludes that this Article has the potential to effectively address the problem of unconstitutional change of government when the African Court becomes operational.