This treaty provides for standards by which African governments can be held accountable by their citizens for democratic governance. It requires African countries to build national institutions where they do not exist and to strengthen those that are weak and ineffective. The challenge will however remain, as with other AU instruments, the implementation and realization of the ideals of the Charter.
The first two countries to ratify the Charter led to a high level of cynicism towards the treaty and its ability to meet its primary objective of promoting adherence by African states to “the universal values and principles of democracy and respect for human rights.” The first was Mauritania, which deposited its instrument of ratification on July 28, 2008, eight days before a military coup took place on August 6. The second ratification, in January 2009, was by Ethiopia, at a time when it had just adopted a repressive civil society law and was carrying out military incursions into Somalia.
However, continued and persistent engagement by the African Union Commission’s Department of Political Affairs, the Pan African Parliament, the Special Rapporteur for Freedom of Expression in Africa, and by civil society organizations (including many different parts of the Open Society Foundations), pushed the Charter through the ratification threshold.
The Charter builds on previously established AU declarations and decisions, consolidating and enhancing them, providing them with a binding effect, and an imperative for African countries to incorporate these standards into their national structures and give them effect.
The Charter provides for African governments to respect their own constitutions, to engender democratic practices and to foster the effective participation of African citizens including women, youth, and persons with disabilities. It calls on states to reject corruption and unconstitutional changes of government, and to ensure the enjoyment of human rights, including universal suffrage, nondiscrimination, sustainable development and human security. It commands states to put in place effective mechanisms for the establishment and strengthening of a culture of democracy and peace within each country.
The Charter recognizes that good governance is not limited to the political sphere, and binds African countries to commit to the strengthening of parliaments and judiciaries; the fostering of strong partnerships and dialogue with civil society and the private sector; the improvement of the public sector and public services; ensuring access to information; and the efficient management of public debt, sustainable utilization of natural resources, and the establishment of effective, efficient and transparent tax systems. It is a remarkably comprehensive document, targeting different dimensions of the governance landscape.
Notably, the Charter calls for the strengthening of the organs of the African Union itself that are mandated to protect human rights and fight impunity, by among other things, ensuring that they are adequately resourced (a perennial problem).
The section providing for sanctions against unconstitutional changes of government is perhaps the most lauded chapter of the Charter. Since 2000, the AU had already began to establish a legal framework on the appropriate response to countries which changed their regimes in ways contrary to laid out democratic principles, for example, through military coups. The new Charter places a responsibility on the AU’s Peace and Security Council to “maintain the constitutional order” within an affected country. It is said that the ousted president of Mauritania rushed to ratify the Charter in order to prevent the impending coup. Although the coup was not preventable, the African Union did proceed to suspend Mauritania from the AU and demand for it to abandon military rule and return to "legal constitutionalism," stepping up the pressure for civilian elections.
However, implementation of the Charter remains a key concern, as does its actual impact. Will the coming into force of the Charter help to decrease the number of fraudulent elections and election-related violence across the continent? The status of fraudulent elections as “unconstitutional” or not has already taken up much time in AU debates. Will this instrument provide teeth to the AU with which to challenge countries currently outside the realm of constitutionalism and which do not espouse the values which the Union claims to share in this their Year of "Shared Values"? Will the AU actually implement the sanctions regime against presidents who extend their terms of office through undemocratic constitutional amendments, or bring them to justice as required by the Charter? And how does the Charter relate to developments in North Africa—where governments have been overthrown by means that are not constitutional, but which the AU accepts as “the popular will of the people”? The Charter will at the very least force the building up and strengthening of institutions on the continent, but progress will depend very much on the ability of the AU to enforce its provisions.
What is clear is much work still needs to be done by all the actors to give effect to the far-reaching provisions of this instrument. The immediate steps for civil society organizations will be to step up ratification campaigns to push African countries to adhere to the Charter; to advocate for the incorporation of these standards at the national level; and to continue to hold their governments accountable to the commitments they have made.
Once again the Continent has pioneered a holistic treaty which addresses the interdependence of the various spheres of society, be it political, economic or social, and this time in the realm of governance.