Traditional rules of international law do not recognize a positive right of revolution, nor a prohibition thereof as the relevant rules merely place the legality of revolutions in their effectiveness. However, the recent upsurge in democratically inspired revolutions has provided high currency to proposals that seek to re-evaluate the position of international law towards revolutions. Proponents of the theory of democratic revolution have sought to establish the legality of revolutions on an elevated normative ground using the lofty ideals of human rights and democratic governance and ultimately suggesting the existence of a positive right of democratic revolution under international law. Focusing on the Arab spring and the normative framework of the African Union, this article argues that the existing (emerging) human rights and democratic norms do not necessarily provide any distinct normative justifications for democratic revolutions beyond the legality that could be possibly established on the basis of traditional norms of international law. While the study recognizes emerging norms that represent a shift away from the effectiveness doctrine, it is observed that the pro-revolutionary implications of the norms are not as obvious as their importance as an (anti-revolutionary) injunction against the forcible ouster of democratically elected governments. The article concludes with the observation that the premium placed on democratic elections in the various normative instruments underscores the centrality of elections – and, alas, not revolutions – as the primary means through which the people's constitutive power (pouvoir constituant) is to be expressed.
Initially introduced as a response to the recurrent problem of military coups d' état, the rejection of unconstitutional changes of government has evolved to become the lynchpin of the African Union's policy on constitutionalism and democratic governance in Africa. However, the prevailing political realities in many African countries, including the (re-)introduction of anti-democratic policies and dubious constitutional manoeuvres by incumbent governments, as well as recent events associated with the so-called ' Arab Spring' have highlighted the limitations of the African Union's existing strategy both in theory and practice. Based on a critical analysis of the African Union's regime on unconstitutional changes of government, its normative design and practical application, this article argues that-and explains why-the organisation has so far generally overpromised, but underdelivered, on the stated goal of collectively safeguarding constitutional democracy in its member states. While recognising its achievements in the progressive development and consolidation of a regional norm outlawing unconstitutional changes of government, the analysis identifies a host of conceptual and practical problems that have hampered the capacity of the African Union to effectively deal with diverse forms of illegitimate disruptions of democratic processes in several African countries. Apart from cases involving popular uprisings, in respect of which the organisation is still in search for a coherent policy framework, there is also a lack of conceptual clarity as to which cases of democratic backsliding can be brought under the rubric of unconstitutional changes of government, as well as a general reluctance on the part of the African Union to apply its policy against incumbent governments entangled in unconstitutional preservations of power. The article provides some recommendations aimed at realising the potential of the African Union's normative framework on unconstitutional changes of government as a meaningful tool for the promotion of constitutional democracy in Africa.
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