\nWhy the African Union\u2019s Unidirectional Approach to Unconstitutional Changes of Government Needs Reform\n<\/p>\n
The African Union\u2019s secretariat, the African Union Commission, recently found itself in the spotlight<\/a> when its Chairperson issued a statement<\/a> congratulating President Samia Suluhu of Tanzania for her win in the elections held on 29 October 2025. President Suluhu was declared<\/a> the winner with 97.66% of the vote. This congratulatory message raised concern, particularly because it was followed four days later by a preliminary statement<\/a> by the African Union (AU) election observation mission, which concluded that Tanzania\u2019s general elections \u201cdid not comply with AU principles, normative frameworks, and other international obligations and standards for democratic elections\u201d. Similarly, the Southern African Development Community (SADC) election observation mission concluded<\/a> that the elections \u201cfell short of the requirements of the SADC Principles and Guidelines Governing Democratic Elections\u201d. This post discusses the AU\u2019s norms against Unconstitutional Changes of Government (UCG). Using Tanzania as a case study, it contends that the AU has effectively turned a blind eye to undemocratic elections as a form of an unconstitutional change of government. Such a pattern highlights the need for reform if the AU is to preserve legitimacy and relevance among African citizens.<\/p>\n AU norms on UCG<\/p>\n The principles guiding the AU\u2018s functions are listed in Article 4 of its Constitutive Act<\/a>, one of which is \u201ccondemnation and rejection of unconstitutional changes of governments\u201d. To understand what this somewhat vague principle means in more practical terms, Article 23 of the African Charter on Democracy, Elections and Governance (ACDEG<\/a>) is a helpful interpretive guide. It provides a non-exhaustive list of what constitutes an unconstitutional change of government: (1) a coup d\u2019\u00e9tat against a democratically elected government, (2) intervention by mercenaries to replace a democratically elected government, (3) replacement of a democratically elected government by armed dissidents or rebels, (4) refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections, and (5) amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government. Importantly, this provision states that the above are all \u201cillegal means of accessing or maintaining power\u201d [italics added] and therefore forms of UCG. The AU seems to have prioritised<\/a> responding to unconstitutional changes when there is a coup d\u2019\u00e9tat and minimally when there is unconstitutional retention of government power through undemocratic legal reforms. By contrast, I argue that the 2025 elections in Tanzania expose the need for the AU to be equally concerned with undemocratic elections orchestrated by incumbents and be explicit in its policy and response to such elections as forms of unconstitutional changes of government.<\/p>\n Although the ACDEG has provisions that speak to the quality of elections, such as that they must be \u201cregular, transparent, free and fair\u201d, there is no reference to the quality of elections in the framework on unconstitutional changes of government under Article 23. Some authors<\/a> suggest that this leaves it uncertain as to whether the provisions addressing the quality of elections can be invoked to interpret the norms on UCG. From a reading of Article 23 of the ACDEG, it is clear that the drafters meant the list of what constitutes UCG to be non-exhaustive with the use of the words \u201cinter alia\u201d. It is my argument, therefore, that based on a holistic reading of the AU Constitutive Act together with the ACDEG and other non-binding sources such as the Lom\u00e9 Declaration<\/a> that contain norms against UCG, the time is ripe for the AU to actively recognise undemocratic elections by incumbents as an illegal means of retaining government power and therefore a form of UCG.<\/p>\n Undemocratic elections in Tanzania<\/p>\n Assuming there is agreement with the proposition I make above, the issue would then turn on what amounts to an undemocratic election. The AU Declaration on the Principles Governing Democratic Elections in Africa<\/a>, although a non-binding instrument, has recognition under Article 17 of the ACDEG, which is a binding treaty. The Declaration outlines the principles of democratic elections, and these include elections conducted freely and fairly, under a democratic constitution, under a system of separation of powers and particularly an independent judiciary, at regular intervals and by impartial, all-inclusive, competent, accountable electoral institutions. Turning to Tanzania, although the State has neither signed nor ratified ACDEG, it is certainly bound by the AU normative framework on unconstitutional changes of government that has its basis in the AU Constitutive Act (which is binding on Tanzania) and the ascribed meanings to the norms against unconstitutional changes of government and undemocratic elections in various AU Declarations. Importantly, the Constitutive Act has as one of the principles of the AU the \u201crespect for democratic principles, human rights, the rule of law and good governance\u201d, and Tanzania is obligated to comply with this.<\/p>\n Against this backdrop, did Tanzania hold democratic elections on 29 October 2025? Applying the above-stated criteria\u00a0 by the AU on democratic elections in Africa to Tanzania\u2019s context, the answer to this question is firmly in the negative. Democratic elections are not only defined by what happens on election day, equally important in measuring how (un)democratic elections are is what happens before and after the elections. Related to this, as noted elsewhere<\/a>, the focus should be both on the elections themselves and the system around elections. There is scholarship<\/a> suggesting that guarantees of civil and political liberties in the pre-and post-election environment are part of the definition of free and fair elections. The preliminary statement by the AU\u2019s election observation mission in Tanzania captures evident disregard of democratic principles in the pre-election period and on election day. The statement notes the following regarding the environment before the elections: (1) access to major digital platforms was restricted, (2) traditional media was biased in favour of the ruling party, CCM, (3) there was a total internet shutdown on election day, (4) allegations of politically motivated abductions that remained unresolved ahead of the elections, (5) the arrest of Tundu Lisu, the chairperson of the main opposition party, CHADEMA, and his prosecution for treason, (6) the arrest of the party\u2019s Vice President, John Heche, (7) a High Court decision banning any political activity by CHADEMA, (8) all members of the electoral commission are appointed by the President. In addition to the above and equally problematic, Article 41(7) of Tanzania\u2019s constitution<\/a> prohibits the challenging of presidential election results before any court of law. This is notwithstanding a decision by the African Court on Human and Peoples\u2019 Rights in Jembra Kambole v Tanzania<\/a> (paras 104 and 118) that found this provision in violation of the right to have one\u2019s cause heard as provided under the African Charter on Human and Peoples\u2019 Rights. The Court ordered a constitutional amendment that Tanzania is yet to implement more than five years after the judgment.<\/p>\n With regard to what transpired on the election day, the preliminary statement by AU observers notes that some polling stations did not have observers or party agents. In addition, voters were given multiple ballots to vote, in full view of observers. There were also incidences of ballot stuffing at several stations and during counting some AU observers were asked to leave before the process concluded. As I have argued elsewhere<\/a>, electoral malpractices such as those described above continue to occur in many African states and they risk making the right to vote in free and fair elections only a theoretical right in the region. Even more concerning is what happened after the elections. The Office of the High Commissioner for Human Rights (OHCHR) has disclosed<\/a> that it has information suggesting that \u00a0\u201chundreds of protesters and other people were killed and an unknown number injured or detained\u201d. The African Commission on Human and Peoples\u2019 Rights noted<\/a> that if established, these reports would constitute \u201cvery gross violations of the African Charter on Human and Peoples\u2019 Rights\u201d that Tanzania is a state party to. The OHCHR has called for investigations into the election-related killings and other violations following the Tanzania elections. President Suluhu has announced<\/a> the formation of an \u201cinquiry commission\u201d to probe the killings, but with her administration standing accused of serious human rights violations, fairness and transparency demand investigations by an entity independent of her government\u2019s direction.<\/p>\n What a reformed approach to UCG could look like<\/p>\n The above synopsis of the AU\u2019s legal framework on democratic elections, the norm against unconstitutional changes of government and the example provided by Tanzania\u2019s recent elections arguably call for a different and people-centred approach to the issue. Given the AU\u2019s apparent prioritisation of rejection of coups over other possible forms of unconstitutional change of government, Odinkalu is arguably right in his contention <\/a>\u00a0that the norm against UCG appears to have become a shield for those in power. Abebe similarly and rightly notes that<\/a> when rejection of UCG is used \u2018principally as an anti-coup (and therefore pro-incumbent) framework, rather than pro-constitutionalism, the AU and regional economic communities have failed to be credible bastions of the principles of regular and democratic renewal of power\u2019. Building on this argument, I contend that when prior to and during elections a country experiences, as was the case in Tanzania, enforced disappearances, internet and social media shutdowns, unlawful killings of protesters, exclusion of the main opposition party from participating in elections, arrest and prosecution of the main opposition leader, incidences of multiple voting and ballot stuffing in the full glare of election observers, the subsequent \u201cwin\u201d by almost 98% of the vote amounts to illegitimate retention of government power similar in effect to a coup. It is a blatant and violent repression of the people\u2019s will that should be the basis of any government\u2019s authority.<\/p>\n To conclude on a constructive note, relevant AU organs should prioritise the adoption of policy and practice reforms that expressly and in a timely manner reject the conduct of undemocratic elections as a form of an unconstitutional change of government. This is essential if the AU is to regain and retain legitimacy at the grassroots. Months before Tanzania\u2019s 2025 elections, critics<\/a> had equated inaction by the AU regarding the resurgence of authoritarian tactics in the country to \u201cabdication of responsibility (that) transforms guardians of democracy into passive bystanders\u201d. To avoid this going forward, the AU should invest in improving the capacity and quality of its election observation missions, particularly long-term monitoring as part of an early warning system on the quality of elections. Pegging recognition of newly elected governments on well-founded reports by such missions regarding compliance with AU standards on democratic elections can contribute to pushing back against authoritarian regimes keen to remain in power through human rights violations and fraudulent elections. This, however, requires a systematic and comprehensive gathering of information on the pre-election environment. Had the AU structured long-term observation of Tanzania\u2019s elections better, it would have been clear well in advance that President Suluhu was competing against herself. The bottom line is that failure by the AU to treat sham elections as an illegal means of maintaining power and with the same fervour and speed with which it responds to coups will lend credence to observations<\/a> that the current approach to UCG has reduced the AU to \u201ca club of incumbents\u201d.<\/p>\n