The continued refusal of Gambian strongman Yahya Jammeh to abide by the results of the December 1st elections has positively placed the West African region on a war footing. Jammeh who initially conceded defeat cites electoral irregularities as grounds for his annulment of the results. This has put Jammeh at odds with the international community with ECOWAS being at the forefront of the call for him to hand over to Adama Barrow, the president-elect on the 19th of January.
The economic bloc first tried to mediate by dispatching four Presidents to meet with Jammeh in a bid to resolve the impasse. Jammeh who accused Ecowas of partisanship has since filed a case at the Gambian Supreme court and has vowed not to cede power until the final determination of his case by the apex court. This irked the bloc which has threatened to launch a military expedition if the January 19th handover date is not honoured.
Jammeh who remains at odds with the regional bloc has vowed to resist any ECOWAS-led invasion, terming such move as “illegal” and “declaration of war”. In his New Year address, Jammeh stated that the planned intervention “is totally illegal as it violates the principle of non-interference in the internal affairs of member States which is an entrenched clause in the ECOWAS treaty.”
It appears that Jammeh’s arguments on the illegality of ECOWAS planned action is the correct position of the law considering the provisions of the ECOWAS Treaty. The regional economic group has as its core aim the promotion of co-operation and integration in West Africa in order to raise the living standards of its people , and the maintenance and enhancement of economic stability, fostering relations among member states and contributing to the progress and development of the African Continent.
There is absolutely nothing in the original or revised ECOWAS treaty that empowers it to establish a standby military force or deploying such force against the territorial integrity of any member State. On the contrary, article 4, paragraph (d) of the ECOWAS treaty unequivocally commits member States to uphold the principle of non-aggression between states.
Where does ECOWAS draw the legal authority to raise a standby force and deploy same against Jammeh in order to enforce the democratic wishes of Gambians? Supporters of ECOWAS and the president-elect may be tempted to argue that article 4, paragraph (j) of the group’s treaty empowers it to ensure the “promotion and consolidation of a democratic system of governance in each member State as envisaged by the Declaration of Political Principles adopted in Abuja on 6 July, 1991” in the region. However, these supporters fail to identify any expressly laid down means of promoting and consolidating a democratic system of governance. States cannot be bound by implied obligations in a treaty. The rule is pacta sunt servanda.
Others will cite Sierra Leone and Liberia as an indication of an existing right to intervene in the internal affairs of a member-state. However, this argument does not fly in the face of the distinction that exist between the Sierra Leone and Gambia. In the former, Ecowas intervened to put a stop to what was fast becoming a humanitarian Hiroshima in a country torn apart by a brutal civil war. No such situation exists in the Gambia to warrant any intervention by the bloc. Jammeh has so far been careful to avoid unleashing soldiers on the citizenry.
ECOWAS has curiously invoked a non-existing principle of international law, albeit a dangerous one which i term as the ‘right of democratic intervention’. The bloc appears to argue that in the absence of any humanitarian crises and any threat to international peace and security, there exists a right of a State or a group of States to invade another State in order to uphold a democratic system of governance.
On a continental scale, it is only the African Union that has a right to intervene in the internal affairs of a member State. The right of the AU to intervene in the internal affairs of a member is not article 4 (1) of the African Union Charter provides that the AU reserves the right “to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity;” This right does not in any way accommodate democratic intervention as is now being championed by ECOWAS.
While most people look forward to a Gambia without Jammeh come January 19, we cannot achieve his removal by resorting to an illegality of any intervention whether democratic or not. While the window of peaceful resolution is still open, ECOWAS can lobby members of the United Nations Security Council to declare that Jammeh’s refusal to cede power constitutes a threat to international peace and security in accordance with article 39 of the UN Charter. Once this is done, ECOWAS can then seek authorisation from the Security Council to intervene in Gambia on the strength of article 53 of the UN Charter.
The planned intervention by ECOWAS apart from being illegal, will give rise to a dangerous precedent on the Continent while increasing the suffering of ordinary Gambians who have already suffered over two decades of Jammeh’s repressive rule.
*Anemuyem Akpan is a Lagos-based International Lawyer. He is currently the Convener of the Nigeria League of International Lawyers.