Is the addition of Unconstitutional Change of Government as a crime under the African Court a threat to public and democratic protests?
By far, the most damning critique of the Malabo Protocol definition of UCG is that it could lead to the criminalization of, and thus prosecution of participants in, popular protests. Under this argument, such protests were protected by earlier drafts of the Malabo Protocol, which included a provision that “any act of a sovereign people peacefully exercising their inherent right shall not constitute an offence under this article,” but the removal of that provision opened the door to criminalization and prosecution.
In fact, it is highly unlikely that leaders of or participants in a popular protest could be prosecuted for UCG. Under Malabo Protocol, six acts qualify as UCG:
- a) A putsch or coup d’état against a democratically elected government;
- b) An intervention by mercenaries to replace a democratically elected government;
- c) Any replacement of a democratically elected government by the use of armed dissidents or rebels or through political assassination;
- d) Any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections;
- e) Any amendment or revision of the Constitution or legal instruments, which is an infringement on the principles of democratic change of government or is inconsistent with the Constitution;
- f) Any substantial modification to the electoral laws in the last six (6) months before the elections without the consent of the majority of the political actors.
None of the acts constituting UCG in the Malabo Protocol cover popular protests. For example, popular protests do not use mercenaries or rebels, nor are they used to assist an incumbent government that refuses to relinquish power. The closest act under the Malabo Protocol that might apply to a popular protest would be a putsch or coup d’état, but even these do not quite fit. Although there are a range of definitions for both terms, as noted above, both generally denote a secretly planned takeover of the government by a small group of individuals—criteria that do not describe a popular uprising. It is thus highly improbable that the African Court would decide that leaders of or participants in a popular protest could be prosecuted for UCG.