Permissible Lawlessness: Recidivism of Unconstitutional Changes of Government and International Law

Bola A. Akinterinwa 

One major reason that might have informed the choice of the theme of the 46th Annual Conference of the Nigerian Society of International Law, holding on Tuesday, 21st and Wednesday, 22nd October, 2025 at the Nigerian Institute of International Affairs, cannot but be permissible lawlessness in international relations. The theme of the Conference is “State Sovereignty and Security in a Challenging Era: Interrogating the Efficiency of International Law.” Many issues are raised in the theme: what is state sovereignty? What is implied by security in a challenging era? When is an era challenging? More important what is the relationship between state sovereignty and security? How does the conduct and management of security impact on the exercise of state sovereignty and vice versa? 

Without doubt, interrogating the efficiency of international law is another way of raising the question of use of force in international relations. It is another way of asking the extent to which international law is respected. And true enough, it is another way of talking about the lawlessness that has come to characterise the conduct and management of international relations in contemporary times and the extent to which it is being condoned in international life.

Put differently, global governance is largely fraught with permissible lawlessness. Lawlessness is considered permissible because it is condoned. The African Union (AU) and the Economic Community of West African States (ECOWAS) have zero tolerance for unconstitutional changes of government in Africa. The zero tolerance has been to the extent of threatening the use of military force against Mali, Burkina Faso, and Niger whose governments came to power by military coups. The ECOWAS threats prompted the three countries to withdraw their membership of the ECOWAS and to form the Alliance des Etats du Sahel (Alliance of Sahel States). In spite of this development, the military still took over power in Madagascar. How do we explain the recidivist character of this unconstitutional changes of government in Africa? The establishment of the AES countries is a good case of permissible lawlessness because lawlessness has become a fait accompli.

Cases of Permissible Lawlessness

First, cases of permissible lawlessness can be explicated at the municipal and international levels. For example, at the municipal or national level, in their analysis of the “Executive Lawlessness and Implications for the Rule of Law, Okey Oparaku, Izim Okechukwu Declan, Stanley Nwaneri and Uchenna Njoku,” observed that ‘the enormous powers wielded by the executive branch of government, especially under a presidential system of government as practised in Nigeria, are being abused through acts of executive lawlessness.’ In their view, therefore, the immunity clause in the 1999 Constitution as amended should be expunged (vide their article in International Journal of Scientific Research in Humanities, Legal Studies and International Relations, Vol. 5, No.1, 2020, pp. 144-154).

In the same vein, as explicated by Kayode Esho, J.S.C, as he was then known, ‘executive lawlessness is tantamount to a deliberate violation of the Constitution. When the executive is the military which blends both the executive and the legislature together to co-exist it in the administration of the country, then it is more serious than imagined’ (vide JohnKennedy T. Ikyase and Ibrahim Nuaimu Danbala, “Summarising Diplomatic Lawlessness in International System: Issue and Dilemmas,” International Journal of Operational Research in Management, Social Sciences & Education, Vol. 10, No. 1, May 2024, pp. 371-381). In other words, it is not simply the violation of the constitution that largely explains the lawlessness, but the act of deliberateness in violating it. Most unfortunately in this case, many Constitutions and international agreements also provide a legitimate foundation for the lawlessness. 

More interestingly at the non-governmental level, Lagos State of Nigeria is a terra cognita for permissible recklessness. Traffic code, there is, but the code does not apply uniformly to everyone. Commercial vehicles drive against the flow of traffic at will and the traffic wardens open their eyes not to see. Owners of contrabands only need to recruit the services of a soldier or policeman to sit in front of their vehicles to clear the way and prevent lawful official checking. On the major Yaba-Ikorodu road, commercial vehicles prefer to use the expressway for disembarkation rather than plying the service lanes. There is no respect for the rule of Zebra crossing in Nigeria. The percentage of people respecting traffic light in Lagos State is at best about 10%. Yet the traffic regulations exist but traffic lawlessness is condoned. This is permissible lawlessness. 

At the international level, and particularly at the level of the UN Charter, Article 2(4) prohibits the use of force against the territorial integrity or political independence of another state in international relations. However, every sovereign state still has the right of legitimate self-defence, that is, every sovereign state can use force in self-defence but subject to the clearance of the United Nations Security Council (UNSC). This raises again the aspect of peace enforcement provided for under Chapter 7 of the UN Charter for which the UNSC was purposely established. The UNSC has the mandate to maintain international peace and security. More significantly, the UNSC has the power to investigate all disputes, recommend peaceful settlements, as well as take sanctions, including military action against belligerents, and threats to the maintenance of global peace. 

Perhaps most importantly, in order to ensure continued maintenance of international peace and security, the UN General Assembly (UNGA) came up with the Uniting for Peace resolution 377(V) on November 3, 1950 to address the Korean War when the UNSC could not mediate the conflict as a result of the use of veto. The resolution enabled the UNGA to make recommendations for collective measures to maintain or restore international peace and security in the event the UNSC cannot act as a result of the application of veto power by any of the Permanent Members. 

Even though Article 99 of the UN Charter enables the UN Secretary-General to bring up any matter that has the potential to threaten the maintenance of peace and security, there is no disputing the fact that compliance with the UN Charter has been more in the breach than in the respect. This is why the interest of the Nigerian Society of International Law in seeking to interrogate the extent of efficiency of international law is quite apt and worth examining. However, the focus of analysis today is not the efficiency or inefficiency of international law per se, but permissible lawlessness which is one of the dynamics of international insecurity and an abuse of state sovereignty. From the foregoing, lawlessness in international relations often occurs at the level of the executive arm of government in various sovereign states. 

If we are talking about the linkages between state sovereignty and security in a challenging era, we are also raising questions about the attitudinal disposition of national governments towards international law. Some countries like Nigeria expressly declare zero tolerance for lawlessness in their foreign policy attitude. For example, Nigeria’s 1999 Constitution as amended provides that one of Nigeria’s foreign policy objectives shall be the respect for international law and treaty obligation. Even though the act of respecting international law being an objective is quite controversial, there is no denying the fact that Nigeria’s policy stand is consistent with the principle of pacta sunt servanda (sanctity of agreement, meaning an agreement consciously negotiated and done must also be respected). It is when freely-signed agreements are not respected that situations of disagreement not only arise, but also that insecurity becomes an issue to contend with.

Grosso modo, we simply observe here that international law does not have the potential to be efficient in the foreseeable future because it is only the less powerful countries that are eager to respect international law in self-protection while the more powerful states respect international law when it serves their national interest. The whole world is not unaware of this situation. The world takes abnormality as normal and therefore has been condoning impermissible lawlessness. It is from this consideration that we discuss permissible lawlessness in international relations with emphasis on cases of unconstitutional governments that have come to power by non-democratic means. They are perceived by the AU and the ECOWAS as unconstitutional but they enjoy the support of majority of their people.

Thus, what is illegal for the AU-ECOWAS supranational authorities is quite legitimate at the level of the people. As a result, we can begin to talk about the people’s coups. While the act of unconstitutional change of government is not lawful and, therefore, unacceptable, it is still acceptable to the people governed, meaning that such unconstitutionality of the change of government is permissible. This factor largely explains the recidivist character of unconstitutional changes of government in Africa.

The Recidivist Character: From the AES to Madagascar 

Several definienda help to understand the recidivist character of unconstitutional changes of government in Africa and why there is little regard for the law of nations, and by implication why it cannot but be difficult to have an efficient international law. These defining criteria include alleged abuses of political power, deliberate corruption and sharp practices by democratically-elected leaders, incapacity to contain Islamic insurgencies, sit-tightism in power through constitutional manipulations, turning state business into family business, and invited or uninvited foreign initiatives seeking to influence domestic politics. 

As clearly shown from the more than fifteen coups d’état that had taken place between 2000 and 2025 in Africa, the reasons often given for the coups are all very thought-provoking. First of all, most of the coups occurred in Francophone West and Central Africa. Interrogatively put, why is it mainly in Francophone countries that majority of the coups occurred? Secondly, on March 15, 2003, General François Bozizé toppled President Ange-Félix Patasse after two unsuccessful ones in 2001 and 2002. In this case, how do we explain the first coup in 2001? Why did measures or sanctions taken in 2001 not prevent the coup attempt in 2002? The rationales given for coups, successful and failed, were allegations of human rights abuses and corruption. In this regard, had the coup plotters respected the human rights and refrained from engaging in acts of corruption?

On February 5, 2005 President Gnassingbe Eyadema passed on after ruling for 38 years in Togo. Under normal circumstance, successorship should not have been a problem because the Togolese Constitution simply required that the Speaker of the Parliament should take over power in the interim and organise elections within 60 days to pave the way for another elected successor. This constitutional rule was not adhered to. What the military did was to organise a coup to install Faure Gnassingbe. The reason given for public consumption was the need to prevent any power vacuum since the Speaker who was required to organise the presidential election was out of Togo. 

This situational reality repeated itself in Chad. When President Idris Déby was killed at the war front while fighting insurrectionists, the military installed his son in the mania of the Togolese rather than allow the President of the National Assembly to organise an election within 60 days as required by the Chadian Constitution. Thus, in both cases of Togo and Chad, the main rationale for coup-making is the deliberate refusal to adhere to the required obligations of the Constitution. And yet, rather than for the AU or the ECOWAS to address why elected leaders are not governing as required and placing emphasis on national security and wellbeing of the citizens, they target those who are fighting their governments to compel them to comply with democratic ethics which does not appear to have any meaning in Africa of today. With this type of situation, there is no way coup-making will not be recidivist.

In an attempt to ensure self-preservation in power on August 6, 2008 in Mauritania, President Sidi Ould Cheikh Abdallahi fired many of the military Generals in his country. One of those fired, General Mohammed Ould Abdel Aziz, led the coup against President Abdallahi. In this case, how do we explain the firing of military Generals, on the one hand, and how do we also explain the reaction of those fired in the context of the protection of the Presidency by the military, on the other?

On February 18, 2010 it was the turn of Niger to play host to coup-making. President Mamadou Tandja made efforts to extend his stay in power beyond the constitutional two terms ending in December 2009. He argued that the people wanted him to continue. The people, but without the military, held different views and he was removed from power and this paved the way for the establishment of the Supreme Council for the Restoration of Democracy (CSRD). 

In Mali, on 21 March, 2012 President Amadou Toumani Touré was forced out of power by Captain Amadou Sonogo on the basis of alleged dissatisfaction of the military with how the 2012 insurgency in Northern Mali was handled. And true enough, there was political instability and increasing Islamist insurgency in Mali. How should the problem be handled? When the coupists took over power, why was the problem of Islamist insurgency not nipped in the bud?

On March 24, 2013, the Séléka Coalition, led by Djotodia, ousted President Bozizé. It should be recalled here that President Bozizé toppled President Ange-Félix Patasse and, while in power, he arranged to contest in presidential election that brought him to power in the Central African Republic. The reasons that informed the then Bozizé coup were those of human rights abuses and corruption. Those who removed him also have the same allegations for his removal.

Unlike the foregoing cases, the interim President of Burkina Faso, Michel Kafando, was ousted by Gilbert Diendéré on September 16, 2015, and within one week of staying in power, the international community compelled him to return power to Michel Kafando. How do we explain the active interest of the international community and pressure that quickly prompted the surrender of Gilbert Diendéré? Why is international law not allowed to prevail?

The coup in Zimbabwe’s Robert Mugabe is particularly interesting in terms of rationale. Robert Mugabe, who once said that Africa without Nigeria is hollow, was in power for 30 years. In 2017, by the time old age would not allow him to discharge his presidential duties, he planned to hand over the reins of power to his wife. Zimbabweans did not accept the naming of his wife as successor. Coup was the answer and the former Vice President, Emmerson Mnangagwa was made to succeed Mugabe. The interesting point is the choice of Mrs Mugabe to succeed her husband. As such, Zimbabwe has become a family property that should be run by family members in rotation. Why should coup-making not be recidivist in light of this situation?

What about Sudan and Mali? On April 11, 2019 President Omar al-Bashir of Sudan was ousted after 30 years in power and a transitional government of military and civilian leaders was set up to succeed al-Bashir. In Mali, on August 18, 2020 a coup led by Assimi Goïta removed President Ibrahim Boubacar Keïta, a protégé of France. The main allegation against him was that he accepted French troops in Mali. Assimi Keïta who led the earlier 18 August coup and who refused to head the new government, later on May 24, 2021 organised another coup to become the new leader of the country. What reasons informed this development? Everyone has his or her own mania of political governance. 

Guinea’s Alpha Condé, who had been in power since 2010, was removed in a coup led by Lt-Col Mamady Doumbouya. The alleged reasons for the coup were corruption and mis-management. The country had a bloody protest in 2019-2020. In fact, Alpha Condé manipulated the Guinean Constitution to allow him to run for another term contrarily to the two terms provided for in the Constitution. True, he won the third term in office controversially but within the first year of his third term, he was ousted in a coup. Third term agenda is therefore another rationale for the recidivism in unconstitutional changes of government in Africa.

Again, Sudan played host to another coup on October 25, 2021. The coup was led by General Abdel Feillah al-Burham and led to the dissolution of the civilian-military transitional government. Coup-making moved away from Sudan to Burkina Faso thereafter. On January 24, 2022. Lt-Col Paul-Henri Sandaogo Damiba led the coup that removed President Roch Marc Kaboré who had been in power for 7 years. He was removed reportedly because of Jihadist violence-induced insecurity. Additionally in 2022, on September 30, 2023 Captain Ibrahim Traoré ousted the incumbent, Paul-Henri Sandaogo Damiba, for the same reasons of inability to contain insecurity and the jihadist violence.

On 26 July 2023, General Abdourahamane Tchiani of the Presidential brigade ousted President Mohammed Bazoum in Niger Republic. Will there ever be an end to coup-making in Africa? The AU and the ECOWAS were fed up with coup-making, hence the threatening of Mali, Burkina Faso, and Niger with sanctions that had little impact. Niger was even threatened with the use of military force against it. The threats prompted their withdrawal from the ECOWAS and the signing of the Alliance of Sahel States. Thus, the problem is a priori not the coupists but the democratically-elected leaders that gave room for coup-making. After the case of the AES, Gabon still played host on 30 August, 2023 to a coup that removed President Ali Bongo who had been ruling since 2009 after he took over power from his father. Ali Bongo manipulated the parliamentary houses to discard all limitations to re-election in or to make him qualify for third-term election. He qualified, contested the election and won, but controversially. In April 2025, there was the reported case of coup attempt in Burkina Faso. What about the coup d’état in Madagascar last week? What can international law do to forestall coup-making in Africa when there is very little regard for respect for international law? This a preliminary view of what should be expected at the 46th Annual Conference of the Nigerian Society of International Law in the next two and three days at the Nigerian Institute of International Affairs. If unconstitutional changes of government have become recidivist in character because of non-respect for rule of law, international law cannot be efficient or effective in the conduct and management of international relations.