Law and Order Africa by Dr Oluwole Kunuji

  Summary of the Facts On the 26th of February 2022, the Government of Ukraine submitted, to the International Court of Justice, an application instituting proceedings against the Russian Federation. The application pertains to the appropriate “interpretation, application, and fulfilment” of certain provisions of the 1948 Genocide Convention, and was brought pursuant to Articles 36(1) and 40 of the Statute of the International Court and Article 38 of its Rules of Court. According to the application, Ukraine avers that Russia’s recent invasion of its territory is based on spurious allegations of genocide committed by Ukrainian forces in the Donbas region of Eastern Ukraine, particularly in the Donetsk and Luhansk oblasts. Ukraine claims that based on these allegations, Russia proceeded to forcefully and illegally launch a “special military operation” in Ukrainian territory to prevent and punish the alleged acts of genocide. Ukraine vehemently denies that it committed acts of ge...

In an earlier article , I argued that sit-tightism remains a major bane of democracy and constitutionalism in Africa. In the said article I defined sit-tightism as “wilful reluctance on the part of political leaders to relinquish power” even when it has become legally, politically and morally repugnant to hold on to power. Sit-tightism, I argued, is usually “facilitated by dictatorship and oiled by brutal repression of dissent and fundamental freedoms.” Strewn all over Africa are glaring examples of this malaise. Indeed, it is often as if Africa and her people are doomed to exist ad nauseam under the climate of sit-tightism. The more Africa strives to extricate herself from the clutches of sit-tightism, the more the continent is drawn into its vortex. Nothing explains this better than the recent political debacle in the northern African country of Algeria where President Abdelaziz Bouteflika refused to willingly relinquish power despite having occupied office for two dec...

It is not yet clear whether the New Partnership for Africa’s Development (NEPAD), described as Africa’s strategic framework for continental socio-economic development, is another white elephant project, the like of which is not in short supply across Africa. The vision behind the NEPAD initiative is great, it’s framework document is loftily worded, and there are initial signs that the NEPAD Agency is determined to actualize the vision of the African Union for economic renaissance across the continent. But we have seen projects like this before. Many of them have since become moribund. What will set NEPAD apart from previous failed ventures is not just the unwavering commitment of the African Union as a body to the goal of Africa’s economic rebirth, but also a determination on the part of the NEPAD Agency- the technical body saddled with the task of implementing the AU’s economic rejuvenation vision- to properly situate its role in Africa’s economic recovery process. The A...

It is no longer news that Sudanese President Omar Al Bashir has been removed from office. However, the approach employed in effecting his removal remains constitutionally problematic. Bashir’s forceful removal was coordinated by the Sudanese military through a coup d’etat that has attracted global condemnation. The military putsch goes against the spirit and letter of the Sudanese constitution and various charters and conventions of the African Union. Section 1(1) of the 2005 Constitution of Sudan categorically asserts that the Republic of Sudan is a “democratic” and “decentralized” State. The democratic and decentralized character of the State is further reinforced by several other provisions of the Constitution, including its preamble which expresses the desire of the Sudanese people to “establish a decentralized multi-party democratic system.” Nowhere in the constitution is provision made for the Sudanese Armed Forces to intervene in the political affairs of the State under any circ...

The vociferous agitation for “Biafra” by some groups in South-Eastern Nigeria and the growing clamour for “restructuring” by individuals and groups in other parts of Nigeria, show quite clearly that there is something fundamentally wrong with the Nigerian federal system as presently structured. Those who choose to play the ostrich and pretend that this is not the case are only living in denial. With time, they will have to confront reality. Nigeria’s federal arrangement, dominated, as it is, by a monolithic and domineering central government, represents the very antithesis of the federal idea. Not only is this federal arrangement fundamentally flawed, it mocks the democratic philosophy that underpins the federal system of government. The above notwithstanding, it must be emphasized that the problem does not admit of precipitate, rash or uncoordinated ameliorative approaches. If anything, the peculiar character of Nigeria as a complex multi-ethnic society makes caution and tact essentia...

In Volume 1 of his Constitutional Democracy in Africa , Prof. Ben Nwabueze argues that the term ‘constitutionalism’ which originally entailed constitutional government-that is government limited in the exercise of its powers- has, of late, been conceptually broadened to include popular government duly sanctioned by the governed. In effect constitutionalism is now essentially defined by two key attributes- government according to law and government anchored on popular consent. This construction of the term, controversial as it may be, is supported by similar definitions in the literature. Nwabueze’s characterization of the subject is, i believe, apt for two reasons. First, government based on mere constitutionality leaves several loop-holes for tyranny if it is not, at the same time, held in check by the people’s sanction. Unless it is accountable to the governed, from whom it derives its authority, government is bound to be dysfunctional, serving parochial interests and blighting p...

Thursday’s missile strike launched by the US against Syria again brings to the fore the question of the use of force in International Law. Sometime in January we had cause to discuss this same subject in relation to threats by ECOWAS to use force in Gambia (see that intervention at https://www.linkedin.com/pulse/ecowas-use-force-gambia-wole-kunuji-oluwole-kunuji ). Unlike the ECOWAS/Gambian case which was an attempt to use force to restore/uphold democracy however, yesterday’s military action by the United States is said to be aimed at preventing or deterring “the spread and use of deadly chemical weapons.” It must be stated that this is a patently poor excuse for unauthorized military intervention in another State. Article 2(4) of the UN Charter which embodies customary international law on the subject clearly prohibits the “threat or use of force against the territorial integrity or political independence of any State.” The only exception permitted by the Charter to the rule laid dow...

Recent reports regarding plans by the Economic Community of West African States (ECOWAS) to unilaterally use force to remove incumbent President of Gambia, Yayah Jameh, from office following the political impasse in that country, are quite disturbing. This is not the first time ECOWAS has threatened to unilaterally use force against one of its member states. In March 2012, ECOWAS similarly threatened to unilaterally use force to restore democracy in Mali following the coup d’etat that overthrew the government of then Malian President Ahmadou Toure. The pertinent question to ask in this instance is whether a regional organization can legally resort to the unilateral use of force in order to restore democracy in any of its Member States? In other words, how far can a regional organization like ECOWAS go in ensuring constitutional order in its Member States? Can it legally circumvent UN Security Council authorization in its bid to use force to achieve benign aims in any of its member stat...

A major highlight of the recently held 28th ordinary session of the AU summit in Addis Ababa, Ethiopia was the adoption of a “strategy” for the withdrawal of AU member states from the International Criminal Court (ICC/ the Court). This development has continued to generate comments and debates within the international community largely because African States constitute the largest regional bloc in the roster of States Parties to the Rome Statute, the treaty that formally established the ICC in 2002. This is not the first time that the future of the ICC would be threatened. In October 2016, Gambia suddenly withdrew its membership of the institution, citing irreconcilable differences. South Africa, Burundi and Kenya had earlier indicated their plans to do the same. Calls for the withdrawal of African States from the ICC are not likely to abate in the coming months and years as long as the penchant for criminal impunity among African leaders subsists and remains unchecked. This a...

There can be no doubt that Turkey’s military activities in Northern Syria in the last few weeks are a brazen and blatant violation of established principles of international law. Turkey’s decision to unilaterally invade Syria, despite widespread calls for it to beat a retreat and reconsider its strategy in Northern Syria is nothing short of a deliberate and willful attack on time tested international norms that are at the very heart of the global collective security system. No amount of clever sophistry employed by Turkey and its allies can obliterate this reality. Two reasons have been given for Turkey’s incursion into Northern Syria. There are indications that the offensive is aimed at removing “Kurdish-led forces from the border area” between Turkey and Syria in order to “create a “safe zone” to which millions of Syrian refugees can be returned.” That would appear to be the official reason for Turkey’s military activities in Syria. The unofficial reason, and the one most obvious to ...