The African Union, constitutionalism and power-sharing

Over the past decade, the African Union (AU) had put in place an important normative framework to promote constitutional rule and, in particular, orderly constitutional transfers of power in its member states. Through its Peace and Security Council (PSC), the AU has actively opposed, including through the use of sanctions, unconstitutional changes of government. As a key element of its policy, the PSC systematically advocates a return to constitutional order as a remedy for unconstitutional changes of government. Free and fair elections are an important element in the PSC policy of legitimating a new constitutional and political order. However, while opposing unconstitutional means of obtaining or transferring power, the AU has been generally supportive of the use of power-sharing agreements as an instrument of negotiated conflict settlement. Most power-sharing agreements are not in accordance with the prevailing constitutional order and, as part of a larger peace agreement, often contain new constitutional blueprints. This dual policy of, on the one hand, opposing certain types of unconstitutional changes of government, in particular military coups, and, on the other, advocating power-sharing agreements in the absence of a regulatory framework or normative guidance on such agreements poses an obvious challenge for the consistency of AU policy. Insofar as the AU wishes to nurture a culture of constitutionalism in its member states, it might benefit from developing policy guidelines about how to enhance the legitimacy of a new constitutional order - and of the political regime exercising political authority – be it in the aftermath of a coup or as a result of power-sharing.