By Bola A. Akinterinwa
ECOWAS mediation in Mali’s crisis is a desideratum, especially in light of the need to prevent the crisis from degenerating into a conflict. The crisis is currently national in character but has possibly international ramifications. ECOWAS mediation of the crisis, as a desideratum, can be explained at three different levels, even if the crisis has not yet degenerated into a conflict from the perspective of polemology. But, in doing so, what should we mean by mediation?
Mediation is a principle and method of negotiation in international law and relations. As a principle, it is one of the peaceful means of settling disputes. As a method, it is a process governed by rules. It is non-judicial. Of the many peaceful methods of settling disputes – such as inquiry, good offices, conciliation, arbitration, judicial settlement, etc – mediation is what the ECOWAS has adopted as an approach to the crisis in Mali, meaning that it is considered more appropriate in the eyes of the ECOWAS Authority.
Inquiry as a means of dispute settlement strictly involves an investigation into the facts of a dispute on an impartial basis. When disputants hold different versions of truth, it is the method of an inquiry that is often resorted to in order to bring about an impartial finding. The crisis in Mali is not about disputation of facts, but essentially about political disagreement.
Unlike inquiry, offer of good offices is the starting point on the continuum of conflict resolution methods. The method of good offices requires the States offering the good offices to bring the disputants to table and negotiate. It involves essentially persuasion of the disputants to enter into negotiation. The moment the disputants accept to negotiate, the offer of good offices necessarily comes to an end. The ECOWAS has not adopted this means because it is obligated to ensure the maintenance of regional peace and security and, therefore, the need to be also actively engaged in peace-finding discussions. The ECOWAS adopted the mediation approach because it politico-legally allows it to be involved in negotiations, to suggest possible solutions. More importantly, mediation requires the confidence of all parties to a dispute.
Related to this mediation method is conciliation, which is more or less an embodiment of inquiry and mediation. The conciliation method requires that the conciliator be first appointed by agreement by the parties involved in a dispute. The appointed conciliator then investigates the facts of the dispute and then makes recommendations. When recommendations on the basis of mediation are not acceptable to the parties in dispute, the mediator still has the opportunity to reformulate new proposals to the parties, which is not possible under a conciliation process in which only one single report is required, even though conciliators do normally have private discussions with the disputants before the issuance of their single reports. Thus, ECOWAS quest to find peace in Mali, stricto sensu, falls under mediation efforts.
Mediation Dynamics
Having put the understanding of mediation in context, there is the need to explicate the three factors of exegesis or the dynamics of ECOWAS mediation. The first factor is that of ECOWAS obligation. In Article 5 of the Protocol on Non-Aggression, done in Lagos on 22nd April, 1978 has it in its paragraph (1) that ‘Member States pledge to respond to all peaceful means in the settlement of disputes among themselves.’ The organisation believes that all disputes should be peacefully settled.
But what does ‘among themselves’ mean? ‘Between’ and ‘among’ do not mean the same thing. The use of’ ‘between’ simply implies the involvement of only two actors or entities, while the use of ‘among’ implies more than two entities. In other words, a dispute may involve more than two countries.
What is again noteworthy at this juncture is that the dispute can mean inter-state, thus giving an international connotation to the meaning. It can also imply an intra-state dispute. For example, paragraph (2) of the same Article 5 provides that ‘any dispute which cannot be settled peacefully among Member States shall be referred to a Committee of the Authority. In the event of failure of settlement by the aforementioned Committee, the dispute shall finally go to the authority. As noted above, the crisis in Mali is not international but national. However, the ECOWAS, as a regional organisation, has been compelled to interfere and possibly to intervene, clearly showing that the national crisis has its regional and international dimensions.
Additionally, Protocol A/SP.3/5/81 Relating to Mutual Assistance on Defence, done at Freetown on 29th May,1981, says in Article 18(1) that ‘in the case where an internal conflict in a Member State of the Community is actively maintained and sustained from outside, the provisions of Articles 6, 9, 16 shall apply.’ Paragraph (2) of Article 18 stipulates that ‘Community forces shall not intervene if the conflict remains purely internal.’ In this regard, is the crisis in Mali purely internal? Has the ECOWAS intervened or interfered? Is the crisis in Mali actively sustained from outside?
Perhaps more significantly, Article 2 of the Protocol on Mutual Assistance on Defence says that ‘any armed threat or aggression directed against any Member State shall constitute a threat or aggression against the entire Community.’ By implication, the threats by international terrorists against the sovereignty of Mali is also a threat to the sovereignty of the entire Community, and therefore warranting the involvement of the ECOWAS by way of interference and intervention.
At the level of the African Union, the Constitutive Act of the African Union has it in its Article 3(f) the objective of promoting ‘peace, security, and stability on the continent’ of Africa. Article 4(g) provides for ‘non-interference by any Member State in the internal affairs of another,’ but upholds in Article 4(h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.
Additionally, there is the principle of subsidiarity that gives the first priority to the ECOWAS to seek and ensure maintenance of peace and security in its region. The word ‘subsidiarity” was coined by the Roman Catholic Church in 1891. It was derived from a Latin verb, ‘subsidio’, meaning to aid and help and from a Latin noun, subsidium’ (aid or assistance). The ECOWAS has therefore gone to Mali to offer assistance by virtue of Mali being a Member State and by virtue of its geo-political location in the immediate neighbourhood. Thus, the African Union does not need to first offer its help. It is when the ECOWAS fails to maintain or is unable to secure peace that the challenge can be tabled before the continental organisation for further discussion and possible solution.
In the same vein at the level of the United Nations, its Charter says that the objective of the organisation is ‘to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.’ And more important, Article 2(3) of the UN Charter requires all signatories to ‘settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’
Apart from the foregoing obligation-driven dynamics, there is the factor of the threatening situational reality of insecurity in Mali, which is considered to possibly have deleterious impact on the whole region of West Africa, if the situation is not quickly brought under control. This is the most important dynamic. Unfortunately, the situation has not been brought under effective control, with the threats of insurgency still deepening, and allegations of poor governance, particularly acts of corruption in which the administration of President of Mali had reportedly been involved. In fact, the mediation has been fraught with many constraints, which also have actually restrained the ECOWAS.
Mediation Constraints and Restraints
The crisis in Mali is complex, and therefore goes beyond the immediate causal factors of protests, calling for the resignation of the President of Mali, Ibrahim Boubacar Keita (IBK). There are factors of self-determination dating back to 1962, struggle against perceived mainmise of France, Islamic Jihad, not only in Mali but also in West Africa; as well as extra-Malian influences.
In this regard, for instance, before the formation of the M5-RFP, popularly referred to as the June 5 Movement or the Group of Patriotic Forces, led by a popular cleric, Mahmoud Dicko, and comprising political parties, civil society organisations and religious associations, there were five groups of insurgents, fighting the Bamako authorities. They are the home-grown movement, Ansar Dine; Movement for Unity and Jihad in West Africa (MUJAO); Al-Qaeda in the Islamic Maghreb (AQIM); the Signed-in-Blood Battalion; and the Islamic Movement for Azawad (IMA).
In all the groups, the pursuit of an Islamic agenda is common, but with different shades of emphasis and approach. For instance, the AQIM was formed in 2007 and its main aim is to spread an Islamist agenda internationally. It also wants to free Mali from the control of France, the former colonial master. This partly explains why it is always kidnapping the Europeans for ransom. MUJAO was carved out of the AQIM in 2011. Its aim is also to spread Islam, but not internationally (Sahel countries and the Maghreb) as it is the case with the AQIM, but limitedly to West Africa. In other words, the main difference between the AQIM and the MUJAO which broke away from it is simply in the scope of operational areas.
In the same vein, the Ansar Dine was also split in January 2013 when Alghababs Ag Intalla carved out the IMA (Mouvement Islamic d’Azawad, that is, Islamic Movement of Azawad), which he led. The reason he gave for the separation was that he was opposed to terrorism as a method for fighting against the marginalisation of the North. He favoured dialogue. In spite of the various in-fighting, there is no disputing the fact that they are militating against the wishes of the Bamako government.
Consequently, While the ECOWAS mediation committee is trying to address the immediate causal factors of the protests, the more profound causes have not been, and because they cannot, be addressed, simply on the basis of current dynamics. It should be recalled that a ‘Touareg State’ was established within Mali in 2012 by the National Movement for the Liberation of Azawad (MNLA: Mouvement Nationale pour la Libération d’Azawad), whose rebellion dates back to 1962.
And true enough, the rebellion became more critical on January 16, 2012 with different insurgent groups joining in the fight against the Malian government. A coup d’état took place on March 22, 2012. The MNLA specifically insisted on the independence of or greater autonomy for Northern Mali, mainly occupied by the Tuaregs. The MNLA took effective control of Northern Mali in April 2012 by ousting President Amadou Toumani Touré in a coup d’état led by Amadou Sanogo and by declaring the independent State of Azawad. Sharia Law was quickly impose but French military offensive put an end to the new State in 2013.
A peace agreement was signed by the Government of Mali and the Tuareg leaders. Again the peace deal did not last long following the opening of fire on unarmed protesters by government soldiers. Even though a ceasefire agreement was done on 20 February, 2015, the insurgency has remained recidivist because the Government of Mali is vehemently opposed to the quest for autonomy but favourably disposed to the devolvement of local powers. It is against this background of unending insurgency that the immediate causal factors of the general protests against the government of President Ibrahim Boubacar Keita should be reviewed and understood. It is also against this background that the constraints and restraints of the ECOWAS mediation efforts should be understood.
Without doubt, the immediate causal problems are also very critical. The opposition elements have levied accusations of reckless corruption, engagement in electoral malpractices and worsening deep-seated situation of insecurity in the country. Perhaps more disturbingly is the catalytic factor of the decision of the Constitutional Court. In April 2020, the Court overturned the results of the parliamentary polls for 31 seats. The overturning enabled the re-election of the candidates from Boubacar Keita’s political party. This development seriously angered the opposition to the extent that a movement against the Government would emerge on June 5, 2020 and protests, which have been violent, have to become the order of the day.
The protesters, coming from different political groupings, have called for the immediate resignation of the president and his government, warning that the protests will begin again as from August 3,2020if their demands are not met. This ultimatum apparently also prompted the quick intervention of the ECOWAS, apart from the fear of general implications for the ECOWAS region. In the words of Demba Moussa Dembele, the President of the Dakar-based African Forum, ‘the regional concerns are real. If the crisis lingers on, Mali is likely to descend into chaos, which will affect the morale of the military and weaken its fight against the terrorist groups. In that case, there is a risk that neighbouring countries, like Senegal and Guinea, will be affected, which, in turn, will affect other countries.’ Moussa Dembele cannot be more correct.
Faced with this constraint, the ECOWAS Authority appointed a Special Envoy and Mediator, in the person of H.E. Dr. Goodluck Ebele Jonathan, GCFR, to lead a Mediation mission to reduce the tension. The Mission was in Bamako from 15 to 19 July, 2020 and held various meetings with the stakeholders, but to no avail. This prompted the sending of a five-man fact-finding committee, comprising the presidents of Ghana, Niger, Nigeria, Côte d’Ivoire, and Senegal, to Mali.
The mediation missions recommended that the 31 members of parliament, whose elections generated the controversy and protests, should step down along with the Speaker of the House. The mediators also suggested the holding of by-elections for the 31 parliamentary positions to be declared vacant. More important, the mediators not only suggested the setting up of a government of national unity that would include members of M5-RFP, but also an inquiry into the alleged deaths of protesters earlier in the month of July
The mediation could not achieve success: while the ECOWAS mediators were insisting on non-constitutional change of government, the protesters were demanding the resignation and departure of the president. In fact, all other hours of closed-door mediation efforts on Thursday, 23rd July amounted to nought. The mediators promised to report the political lull to the ECOWAS summit to be held on Monday, July 27th, 2020.
And true enough, the Summit of Heads of State took place. It was an extraordinary summit by videoconference. As noted in paragraph 5 of its communiqué issued on the 27th of July, 2020, the ECOWAS mediators ‘…determined the causes of the crisis and proposed solutions, making some recommendations. Unfortunately the recommendations were not implemented and the demonstrations continued, becoming particularly violent on 10,11, and 12 July. This led to numerous deaths and casualties and the destruction of public and private property.’
As further noted in paragraph 6 of the Communiqué, ‘the Mission met with all the stakeholders and formulated a roadmap for a way out of the crisis. The roadmap was accepted by the majority of stakeholders, with the exception of the Strategic Committee of M5-RFP which maintained its demands, namely: the resignation of the President…, establishment of a transitional regime, the establishment of a Commission of Inquiry to investigate the deaths of 10, 11, and 12 July’ and the release of Honourable Soumaila Cissé, the opposition leader abducted during the parliamentary elections.’ It was partly against this background that the five-man fact-finding Mission (H.E. Mahamadou Issoufou, President of Niger and Chair of the ECOWAS and Presidents of Nigeria, Muhamadu Buhari; Ghana, H.E. Nana Akufo Addo; Côte d’Ivoire, Alassane Ouattara; and Senegal, Macky Sall) was sent to Bamako.
In the strong belief that ‘any threat to peace, security and stability in individual Member States is a threat to the Community as a whole’, and considering the need to respect the institutions of the Republic, and particularly the need to ‘abide by the constitutional means of ascending to power, in conformity with the ECOWAS Supplementary Protocol on Democracy and Good Governance,’ the ECOWAS Authority finally took the following decisions: that ‘all political parties should endeavour to obtain the immediate resignation of all the 31 Members of Parliament whose elections are contested’ to pave way for by-elections; all the relevant institutions should facilitate the immediate re-composition of the Constitutional Court in accordance with the legal provisions in force in Mali; that a ‘National Unity Government, led by Prime Minister Boubou Cissé, should be quickly established.’ In this regard, ‘50% of members are to come from the ruling coalition, 30% from the opposition and 20% from Civil society.’ All the stakeholders were asked ‘to implement in entirety the above decisions and measures within ten days’, with a request to the ECOWAS Commission ‘to consider sanctions against all those who will act contrary to the normalisation process’ and to the African Union and the UN Security Council to endorse the decisions and measures it had taken.
In spite of the threats of sanctions, the immediate response of the M5-RFP protesters is noteworthy. It said as follows: ‘the M5-RFP states with regret that the conclusions of the Heads of State Summit do not take into account the depth and gravity of the socio-political crisis that has Mali’s future hanging in the balance.’ The protesters also complained that the proposals did not ‘correspond to the expectations and aspirations of the people of Mali’, and they also ‘violate the laws and Constitution of Mali.’ Consequently, they still insisted on the ‘resignation of Mr. Ibrahim Boubacar and his regime more than ever.’ This is a major constraint, especially that the Malian crisis has actually extended to Burkina Faso and Niger, Nigeria’s immediate neighbour to the north.
But how do we go beyond the constraints and restraints posed by the Malian situation? ECOWAS mediation efforts are constrained, not simply by the intransigence of the June 5 Movement, but especially by ECOWAS own need to first ensure regime security rather than the security of the people of Mali. In doing this, it places emphasis on non-constitutional change of government in consonance with its Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, which has it in its Article 1(b) that ‘every accession to power must be made through free, fair and transparent elections,’ and in Article 1(c) ECOWAS ‘zero tolerance for power obtained or maintained by unconstitutional means.’ In this regard, how and when do peaceful demonstrations by the general public calling for change of government become a forceful request for change of government? What are the sanctions against a President and a Constitutional Court that upturn election results as it is the case in Mali? How do we reconcile lawful quest for self-determination and unlawful quest for change of government? How can the ECOWAS sanction people who are complaining and fighting terrorism in Mali? These issues are more critical and should be addressed to prevent the degeneration of the crisis into conflict.
