The crumbling of North African (NA) regimes holds serious challenges for international law on the African continent. Traditional international law refrained from prescribing to states which forms of government they should subscribe to in their own territories (2) and prohibited the international community from intervening in what was essentially considered as the domestic affairs of states.(3) This approach has come under increasing pressure in the post-Cold War era, with a growing trend amongst global and regional organisations to regard democracy as the only acceptable system of domestic rule. Many treaties have since been adopted which stipulate elements of what is considered good governance. Furthermore, scholars and activists are calling for a right to democracy which will entitle the citizens of a country to be consulted and participate in governance issues.(4) Those arguing against the move toward democracy warn that enforcement of a right to democracy may lead to pro-democratic intervention by the international community.(5)
Against the background of the ongoing events in North Africa, this paper considers whether there is an emerging right to democracy in Africa and looks at the international instruments which may contribute to the shaping of such a right.(6)
African solutions for African problems
Despite the very diverse nature of Africa’s 54 states, African states generally speak with one voice and prefer to present a consolidated face to the outside world, hence the often cited dictum of African leaders: ‘African solutions for African problems.’ Non-intervention and absolute sovereignty remain firmly engrained in African politics,(7) and African leaders are still reluctant the criticise one another. Democracy as a form of government is, in principle, widely endorsed by African decision makers. Not many risk being labelled as undemocratic. Although it is often suggested that the notions of democracy should be interpreted against a specific cultural context, the non-specific content of ‘democracy’ lends opportunity to many to jump on the democracy band wagon, with no real benefits for their citizens.
References to democracy commonly appear in African constitutions. For example, the Constitution of Libya,(8) in force under Ghadaffi, establishes Libya as“a democratic independent sovereign State.”(9) Article 1 of the Constitution of Algeria (10) states that Algeria is a democratic people’s Republic. The Moroccan Constitution (11) states that “Morocco is a constitutional, democratic and social monarchy” and that sovereignty shall be that of the People.(12) Prior to its current review, the Egyptian Constitution (13) of 1971 proclaimed Egypt as a "Democratic State" that derived its sovereignty from the people, and as part of the Arab World.
Practice, however, paints a different picture. Post-colonial African governments did not gain a reputation for democratic practices and respect for the rule of law. Colonial rule was often replaced by autocratic leaders, one party states and military dictators aimed at the enrichment of the political elite. Non-democratic regimes were responsible for violations of human rights at various levels. The absence of a rule of law gave impunity to those with political power which sharply contrasted with the poverty of the general population in Sub-Saharan Africa (SSA). Prosperous NA, with its oil-based economies, displayed an equal disregard for democracy, the rule of law and human rights. These factors underpin the urgency of the strife of Africa’s people for representative and legitimate governments.
Democracy as a human right
The core elements of democracy are reflected in human rights instruments adopted by both the United Nations and the African Union. These include Article 21 of the Universal Declaration of Human Rights (14) (UDHR) which states that everyone has the right to participate in the government of his country and the right to equal access to public service. Importantly, it provides that the will of the people shall be the basis of authority of government. Article 25 of the International Covenant on Civil and Political Rights (ICCPR) endorses these provisions by stating that every citizen has the right to participate in the conduct of public affairs through freely chosen representatives, to vote in periodic elections which shall be by universal and equal suffrage held by secret ballot guaranteeing the free expression of the will of the electors and have access to public service in the country. Common Article 1 of the ICCPR and the International Covenant on Economic Social and Cultural Rights (ICESCR) protect the right to self-determination of peoples to freely determine their political status.(15)
Most African states are parties to the ICCPR and ICESCR. These provisions are reflected in treaties adopted by the African Union (AU) and its predecessor, the Organisation of African Unity (OAU). Article 13 of the African Charter on Human and Peoples’ Rights recognises the right of every citizen to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law, and the right of equal access to the public service of the country and public property.
More recent AU initiatives to give force to the drive towards democracy and good governance include the African Charter on Democracy Elections and Governance of 30 January 2007 (the Charter). According to the official website of the AU,(16) 38 of the AU members (17) have signed said Charter on 9 February 2011, whilst only eight states (Burkina Faso, Ethiopia, Ghana, Lesotho, Mauritania, South Africa, Rwanda and Sierra Leone) have deposited instruments of ratification or accession. The Charter requires 15 ratifications to come into effect. It is interesting to note that few NA states have signed and ratified the Charter. Other notable initiatives in this regard are The New Partnership for Africa’s Development (NEPAD) which is the Strategic Policy Framework and Socio-economic Development Programme of the African Union.(18) It identifies shortcomings in the quality of governance as a key issue affecting a move to democracy, as does the African Peer Review Mechanism (APRM),(19) which assesses the performance of states through inter alia self-assessment. Participation in the APRM is not compulsory but may be voluntarily acceded to by AU Member States.(20) Subscribed to by 30 AU members, the APRM provides a strong indication of the foothold that democracy and a new accountable sovereignty are gaining on the continent.(21) Participating NA states include Egypt and Algeria.
Nine African states (Mauritania, Algeria, Tunisia, Libya, Egypt, Sudan, Morocco, the Comoros and Somalia) belong to the League of Arab States,(22) a regional organisation of Arab states. The Arab Charter on Human Rights was adopted by the Council of the League of Arab States on 22 May 2004 and entered into force on 16 March 2008. It is ratified by two of its African members, namely Algeria and Libya, and affirms the principles contained in the UN Charter, the Universal Declaration of Human Rights, the ICCPR and ICESCR and the Cairo Declaration on Human Rights in Islam. A number of traditional human rights are provided for, including the right to liberty and security of persons, equality of persons before the law, protection of persons from torture, the right to own private property, freedom to practice religious observance, political rights and freedom of peaceful assembly and association.
These instruments show ample evidence of the new wave towards democratisation that is sweeping across Africa and is reflected at an institutional level by the AU. Unfortunately, the NA experience has once again underlined that there is a huge gap between theory and practice and between what political leaders preach and what they practice. There is an important role for civil society to play in the process of democratisation and bridging the gap between policy and practice.
Role of civil society
Voluntary associations are regarded as important in promoting democratic citizenship, and can either buttress or challenge state power.(23) As long as civil society is suppressed by a lack of political tolerance, and freedom of association, opinion and a free press do not exist, voluntary association remains a challenge. Globalisation and international communication such as the Internet and new social media such as Twitter have made citizens more aware of global trends and enabled them to network and to mobilise more. It is therefore unsurprising that civil society (24) played a very important role in stirring democratic sentiments in North African states. An informed civil society is an essential element of democracy that pressures governments to honour their legal commitments.
Securing the rule of law is a major challenge for North Africa’s new regimes. However, the transitional period presents an ideal opportunity for law reform especially in addressing the traditional and rigid to approach to human rights favoured by NA. These states are notorious for their disregard of international human rights standards, particularly internationally accepted woman’s rights. Consequently, the legitimacy of new governments will depend on the extent to which previously marginalised groups, such as women, are accommodated.
The core elements of democracy are already protected through the UN as well as African and Arab League instruments. Voluntary mechanisms such as the APRM have contributed to the creation of a pro-democratic climate.Democratic sentiments are likewise echoed in many constitutions of African states. Unfortunately, there has been a huge gap between policy and practice. Absence of the rule of law and the lack of enforcements of the core human rights necessary for a democracy to flourish have prompted civil society to challenge dictatorships and reluctant rulers to yield to democratic forces. Yet, most Africans are still a long way from claiming a right to democracy. Strict adherence to sovereignty and an unwillingness of African leaders to criticise their peers for undemocratic practices stand in the way of the general state practice which will be necessary to secure such a right.
(1) Contact Michèle Olivier through Consultancy Africa Intelligence’s Rights in Focus Unit (
(2) The International Covenant on Civil and Political Rights (1966) provides in Article 1(1) that all peoples have the right to self-determination and to freely determine their political status.
(3) The Charter of the United Nations (1945) stipulates in Article 2(7) that “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State…”
(4) See Franck, T. M., 1992. The emerging right to democratic governance. American Journal of International Law, 86(46), pp.46-91 and Varayudej, S., 2010. A right to democracy in international law: Its implications for Asia. Annual Survey of International & Comparative Law, 12(1), pp.1 -18.
(5) Varayudej, S., 2010. A right to democracy in international law: Its implications for Asia. Annual Survey of International & Comparative Law, 12(1), p.10.
(6) This discussion is based on a paper delivered by the author at a conference on ‘The EU, international organisations and crisis management in the aftermath of recent ‘revolutions’ in North Africa and in the Middle East’ at Liverpool John Moores University on 16 September 2011.
(7) See the Constitutive Act of the African Union, adopted 7 July 2000, Articles 3 and 4.
(8) Brought into force on 7 October 1951.
(9) See Preamble of the Constitution.
(10) The Algerian Constitution, as amended in 1996.
(11) The Constitution of Morocco, 13 September 1996.
(12) Articles 1 and 2.
(13) The Egyptian Constitution was adopted on 11 September 1971 through a public referendum. It was amended in 1980, 2005 and 2007. On the 13 February 2011, the Constitution was suspended following the resignation of President Hosni Mubarak as a result of the 2011 Egyptian revolution.
(14) Adopted in 1948 (U.N. Doc. A/811).
(15) The ICCPR and the ICESCR were adopted by the UN General assembly in 1966 and became operative in 1976, following ratification by 35 states.
(16) See www.africa-union.org.
(17) All African states are AU members with the exception of Morocco, who withdrew from the OAU in 1984. In addition, membership of Eritrea and Madagascar has been suspended.
(18) The vision of NEPAD is “to eradicate poverty and to place countries, individually and collectively, on a path of sustainable growth and development, and at the same time to participate actively in the world economy and body politic.” The realisation of this vision calls for improved governance, action plans outlining realistic sustainable development targets, reinforcing successful best practices, identifying deficiencies and assessing the needs for capacity building in all African Countries.
(19) The African Peer Review Mechanism (APRM) Foundation Base Document [AHG/235 (XXXVIII) Annex 2] defines the APRM as “an instrument voluntarily acceded to by Member States of the African Union as an African self monitoring mechanism.”
(20) The APRM is open to all member states of the AU. As of 29 January 2011, APRM counted 30 member states: Algeria, Angola, Benin, Burkina Faso, Cameroon, Congo, Djibouti, Egypt, Ethiopia, Gabon, Ghana, Kenya, Lesotho, Liberia, Malawi, Mali, Mauritania, Mauritius, Mozambique, Nigeria, Rwanda, Sao Tome & Principe, Senegal, Sierra Leone, South Africa, Sudan, Tanzania, Togo, Uganda and Zambia.
(21) Geldenhuys, D., 2006. Brothers as keepers: Africa’s new sovereignty regime. Strategic Review for Southern Africa, XXVIII(1), p.13.
(22) It was formed in Cairo on 22 March 1945 with six members: Egypt, Iraq, Transjordan (renamed Jordan after 1946), Lebanon, Saudi Arabia and Syria. The Arab League currently has 22 members and four observers. The main goal of the League is to "draw closer the relations between member States and co-ordinate collaboration between them, to safeguard their independence and sovereignty, and to consider in a general way the affairs and interests of the Arab countries."
(23) Bratton, M., 1994. Civil society and political transition in Africa. Institute for Democratic Research Reports, 11(6), p.1.
(24) In ‘Voice and accountability for human development: A UNDP global strategy to strengthen civil society and civic engagement’, the UNDP provides the following definition of civil society: “Civil society is an arena of voluntary collective actions around shared interests, purposes and values distinct from families, state and profit seeking institutions. The term civil society includes the full range of formal and informal organizations that are outside the state and the market – including social movements, volunteer involving organizations, mass-based membership organizations, faith-based groups, NGOs, and community-based organizations, as well as communities and citizens acting individually and collectively.” Cited in 'A user’s guide to civil society assessments', UNDP, 2010, http://csdp.org.ua.