By Bola A. Akinterinwa
The Principle of Subsidiarity (PoS) is of multidisciplinary application in international relations. Its importance is largely explained by the fact that it deals essentially with the regulation of power and its exercise in the maintenance of international peace and security, which is the primary objective and rationale for the establishment of the United Nations Organisation in 1945. It is about the determination of who should have authority and how the authority should be exercised in a given situation or region in ensuring peace and security.
The understanding of the principle varies from one stratum of society to another and from one discipline to the other, but the denominating factor remains common. Its origin is traceable to Catholicism, the 1891 encyclical Rerum novarum by Pope Leo XIII, who attempted ‘to articulate a middle course between laisser-faire capitalism, on the one hand, and the various forms of socialism, which subordinate the individual to the state, on the other.’.
Subsidiarity is etymologically derived from the Latin word, subsidiarius, meaning ‘to help’ or ‘to support.’ Catholics consider subsidiarity as ‘the coordination of society’s activities in a way that supports the internal life of the local communities… The common good is the totality of social conditions allowing persons to achieve their communal or individual fulfilment (Benedict XVI, 2008). Politically, the PoS means that ‘all people have the right to participate in decisions that affect their lives. It requires that decisions be made by the people closest and most affected by the issues and concerns of the community (vide https://www.caritas.org.au). In the eyes of Wikipedia, ‘subsidiarity is a principle of social organisation that holds that social and political issues should be dealt with at the most immediate (or local) level that is consistent with their resolution.’ The emphasis of this definition is on the immediacy or nearness of operational environment of the principle.
From the perspective of the European Union, Article 5(3) of the Treaty on European Union regulates the application of the PoS: ‘the area concerned does not fall within the Union’s exclusive competence (i.e. non-exclusive competence); the objectives of the proposed action cannot be sufficiently achieved by the Member States (i.e. necessity); and the action can therefore, by reasons of its scale or effects, be implemented more successfully by the Union (added value). Without meeting these three conditions the PoS is inapplicable.
As interpreted by uk.practicallaw.thomson.com, ‘in areas which do not fall within its exclusive competence, the EU can act only if, and insofar as, the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at the central level, or at the regional or local level, but can rather, by reason of the scale of effects of the proposed action, be better achieved at EU level.’ And perhaps more significantly, how does the PoS apply in the context of the AU’s rule of non-constitutional change of Government in Africa, and particularly in the context of the coups d’état in Chad and Mali?
Unconstitutional Change of Government (USG)
Grosso modo, the PoS is a general principle of international relations, which not only promotes the protection of lower levels of government against unnecessary intrusions of central governments, but also wants political governance, particularly, decision-making processes, brought closely to the level of the local or community levels. For example, the nexus between the PoS and AU’s principle of non-constitutional change of Government in Africa is quite interesting because of the conflict in their power implications. On the one hand, the PoS preaches that matters that do not fall within the exclusive jurisdictional competence of Member States of an organisation, and their pursuit of objectives whose action céannot be sufficiently achieved by the Member States, should be left for the local communities to handle. In other words, the PoS delegates authority to the local regions to act on behalf of the central government.
Empirically, the resolution of the conflicts in Chad and Mali, for examples, should be left to the regional organisations to which both countries belong: Economic Community of Central Africa States (ECCAS) for Chad and Economic Community of West African States (ECOWAS) for Mali. It is only when no room can be found for peace and security to reign that the intervention of the continental body can be required. This is the AU’s understanding of the PoS. In light of this, an attempt is made here to explicate the PoS within the context of another AU principle of non-acceptance of unconstitutional change of Government in Africa.
The origin of non-acceptance of Unconstitutional Change of Government (UCG) is traceable to the early 1990s when the OAU Seventieth Ordinary Session of the Council of Ministers mandated the Central Organ of the OAU Mechanism for Conflict Prevention, Management and Resolution to reactivate, as a matter of urgency, ‘the sub-committee on unconstitutional change, in order to finalize its work in light of the Harare discussions particularly, as regards the measures to apply in coup d’état situations occurring in Member States.’ It is useful to also note here that the Central Organ talks about reactivation, implying that the sub-committee on UCG once existed and apparently entered into désuétude. It was the increasing cases of coups d’état in Africa that prompted the need for reactivation of the sub-committee. The question therefore is how do we explain the fact that, since the 1990s, coup making or unconstitutional change of government is yet to be thrown into the garbage of history?
And true enough, the OAU adopted four measures in response to the UCG: adoption of common values and principles for democratic governance; providing a definition of what constitutes an UCG; articulating measures and actions to be taken in response to UCG; and putting in place an implementation mechanism. In terms of the values, emphasis was placed on adoption of a democratic Constitution; respect for the Constitution and adherence to the provisions of the law and legislative enactments; separation of powers and independence of the judiciary; promotion of political pluralism or participatory democracy; democratic change principle and recognition of the role of opposition parties; organisation of free and fair elections in conformity with existing texts; guarantee of freedom of expression, especially freedom of the press; constitutional recognition of fundamental rights and freedoms in accordance with the 1948 Universal Declaration of Human Rights; and guarantee and promotion of human rights.
The ultimate objective was to remove the three main problems militating against entrenchment of enduring democratic culture in Africa: military coups, lack of free and fair elections, and illegal constitutional amendments aimed at entrenching in power the incumbent governments and monarchies. In this regard, for instance, Article 28(E) of the Malabo Protocol, which is largely inspired by Article 23 of the African Charter on Democracy, Elections and Governance, identified different acts that could constitute a crime of illegally accessing or maintaining power.
The unwanted acts include a putsch or coup d’état against an elected government; any mercenary intervention to replace a democratically-elected government; any replacement of a democratically-elected government through armed dissidents, rebels and political assassination; any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; any amendment or revision of the Constitution or legal instruments, that infringes on the principles of democratic change of government or is inconsistent with the Constitution; and in the event there is ‘any substantial modification to the electoral laws in the last six months of the majority of the political actors.’).
What is quite noteworthy is that, in spite of the foregoing provisions on UCG and abundance of efforts, coup-making has not stopped. In fact, it has not only acquired a notorious recidivist character, but has also prompted the main proponents of the values and principles of UCG to begin to adopt a double standard approach to the problem of UCG. Put differently, how do we explain the fact that the same AU leaders or even the ECOWAS leaders are now condoning the military coup, not to say an apparently stage-managed killing of the Chadian leader, Idris Déby Itno, and what is now referred to as a ‘coup within coup’ in Mali?
AU and UCG: the Double Standard in Chad and Mali
At a distance, the change of government in Chad may appear quite difficult to be seen as a forceful change of government because the President, Idris Déby Itno, was reportedly killed at the battle field. It was not that he was forcefully attacked by the military with the ultimate objective of ousting him from power. However, at a closer look, the change of government was a reflection of coup d’état per excellence.
Without jot of doubt, following the early April, 2021 presidential elections, which President Déby Itno won, the Chadian rebel group, Front pour l’Alternance et la Concorde au Tchad (FACT: Front for Change and Concord in Chad), with the support of the Conseil de Commandement Militaire pour le Salut de la République (CCMSR: Military Command Council for the Salvation of the Republic), launched a military offensive from the Tibesti region in Northern Chad, from April 11 through 9 May, 2021. President Itno was said to be at the battle field to defend the territorial sovereignty of his country. Questions have been raised as to why he should be there at that material time, when he was actually awaited in the capital, N’Djamena, for celebration of his victory by his ruling party.
Whatever is the case, the Idriss Déby Itno Government was able to contain the military offensives of the FACT and the CCMSR. According to the N’djamena authorities, eleven Chadian soldiers were killed, 58 soldiers were wounded, and one helicopter was destroyed. The Chadian government also revealed that hundreds of insurgents were killed and 210 insurgents were captured.
More importantly, on the very day Déby Itno was killed on the battlefield, 20 April 2021, his son, Mahamat Ibn Idriss Itno, who was born on 1st January,1984 in Massakory and is also a Major General in the Third Armoured Brigade, was immediately appointed the Chairman of the Transitional Military Council, that is, as the interim President of Chad. He already served as the Second-in-Command of the military for the Chadian Intervention in Northern Mali. Thus, he appears to have been put on the path of greater responsibility assumption. In this regard, three critical points are noteworthy about the appointment of Mahamat Ibn Idris Déby Itno as successor to his father.
First, his appointment contravenes the constitutional provision on presidential succession in Chad. The Chadian Constitution requires that the Speaker of the House, in the person of Haroun Kabadi, must be asked to take over the presidential responsibility. Mahamat Itno, following his appointment, however, dissolved the National Parliament. French sources have it that the Speaker Kabadi was actually requested to take over but he allegedly declined the request. If this situation were to be so, was the military takeover not a coup d’état, not a forceful change of Government, or an UCG in Chad?
Second, Chadians pleaded with President Déby Itno not to contest the presidential elections but he ignored the pleas. The opposition elements believed that the president was on the path of imposing a monarchical dynasty or an Itno dynasty, especially with the introduction of a new Constitution in 2018. The 2018 Constitution, which was approved by 132 votes for, and two votes against, was boycotted by the opposition parties. The new Constitution increased the presidential term from five to six years, reintroduced the two-term tenure that was jettisoned in 2005. The new Constitution also changed the system from a semi-presidential system to a fully presidential democracy, and by so doing, scrapping the office of the Prime Minister. The president is therefore both Head of State and also Head of Government.
Third, the Chadian Constitution provides that in the event a president is absent or dies, the Speaker of the House must take overpower for 40 days during which the needful for proper succession must be done. This was not done. Even though the African Union called for a democratic transition in Chad, has urged that civilians and soldiers share power in Chad, and has not only sent envoys to Chad to resume discussion with the opposition which is planning a mega protest, the truth remains that the AU’s policy of UCG has failed in Chad. The AU has simply been presented with a fait accompli. So has the ECCAS. The same scenario is true of the UCG in Mali.
Mali is not on record to have been politically stable for a reasonable length of time. Apart from the many coups d’état the country has had, the country is also playing host to unending insurrection in northern Mali. There were military mutinies in Mali in 1968, 1991, 2012, 2020 and also in 2021. The last two coups were noteworthy. First, they occurred within one year. The first coup took place on 18 August, 2020. It was more of a people’s coup than of a military coup.
It is useful to recall that before the coup took place, the people of Mali had been publicly protesting against the government of President Ibrahim Boubacar Keïta under the platform of the June 5 Movement. It was when the public protests were deepening and becoming a critical threat to national security, apart from the Touareg insurgency in northern Mali, that the coup took place.
Second, several observers of Malian politics condemned the coup nationally and internationally. However, the people of Mali came out to demonstrate in support of the coup. In this regard, the people of Mali were simply sending messages not only to the Keïta administration, but also to the French government, the ECOWAS leaders and the African Union leaders, all of whom were on the side of the Malian government.
The coup plotters were led by Colonel Assimi Goïta, who not only declared himself leader of the people, but was also appointed the Vice President in the political transition arrangement. President Ibrahim Boubacar Keïta and the Prime Minister, Boubou Cissé, were compelled to resign and to also dissolve their government.
What again should be noted about the coup is the perception of the coup in Mali as an UCG. Admittedly, if it was an UCG, how do we explain the popular support given to the coup? Why should the African Union and the ECOWAS support the Government of Mali to the detriment of the interests of the people? The people have complained about Ibrahim Boubacar Keïta’s poor handling of the legislative elections. They also complained about his inability to contain insurrection and terrorism in the country. The public protests were meant to compel the President to resign but which the President refused to do.
In this regard, if the African Union and the ECOWAS raise the issue of UCG and the majority of the Malian people do not see their protests as an instrument of UCG, whose interest should prevail in this case? Should the supranational interest of the ECOWAS, acting within the framework of the PoS, override the interest of Malians or should it be the reverse?
Additionally, on 24 May, 2021 another change of government took place in Mali. It was carried out again by the same Assimi Goïta, but who, this time assumed the position of the President. Did he refuse initially to be the President in order to learn how to walk the presidential rope? Has he now learnt enough about democratic and good governance in less than ten months as Vice President? Whatever is the case, for engaging in an UCG, Mali was sanctioned: Mali’s membership of the regional organisation was suspended. Mali could not attend meetings of the ECOWAS, could not vote and could not be voted for.
In spite of the sanctionary measures taken against Mali, UCG was still a fait accompli. The UCG policy could not prevent new coups. How should new coups be prevented? Are coups d’état preventable in Africa with African leaders’ bad governance? Observers have described the second coup in Mali as a ‘coup within coup.’ Can it be rightly so described? True enough, Assimi Goïta planned the first and the second coup. Thus the dramatis personae remain the same. The political agenda set by and for the government of transition remains the same. The duration of the transition also remains constant. What has actually changed is the removal from office of the President, Mr. Bah Ndaw, the Prime Minister, Mr. Moctar Ouane, and the Minister of Defence, Mr. Souleymane Doucourt. Elections as scheduled are still to take place in 2022.
In essence, there is a lot of beauty in the principle of subsidiarity and its application because it seeks to bring governance, particularly decision-taking to the lowest level of, or nearest to, the people. There is also beauty in the rejection of UCG in the political governance of Africa. However, in the case of Mali, for example, the PoS was naturally applied. The ECOWAS attempted to manage the crisis. Besides, it was the people of Mali that wanted a change of government by brute force or by manu militari. How should Government deal with people’s request in a democracy? This is a question that the Muhammadu Buhari will also need to address in dealing with the many complaints against his administration. Threatening to treat people who never experienced the bitterness of the 1967-1970 civil war in the language they understand is, at best, an expression of unpatriotic belligerence and poverty of ideas. Imposition of an unwanted Constitution is also manu militari and can only generate societal acrimony. PMB cannot be preaching the gospel of national unity and the principle of Federal Character while remaining the chief driver of nepotism and alleged silent Fulanisation agenda. And true, with this type of situation, no amount of PoS or UCG can be applied and be expected to provide good result.
