The general principles of the rule of law state that legality should take precedence over all political affairs. But is it ever possible for two wrongs, such as a military takeover of an unconstitutional civilian government, can produce a positive rule of law outcome?
That is the question many are asking in relation to Thursday’s military takeover in Niger. The military coup ousted President Mamadou Tandja, who last year dissolved parliament and abolished the country’s Constitutional Court in order to hold a referendum to extend his reign to an unconstitutional third term. The power grab followed years of decreasing public space and government harassment of journalists, opposition members, and independent activists critical of the regime. After Tandja refused to postpone the presidential election in October, the regional political organization ECOWAS suspended Niger until constitutional rule could be reestablished. That did not happen. So when Tandja second term expired on 22 December and he was still in power, ECOWAS took it one step farther by refusing to recognize Tandja as the legal president of Niger.
Based on this history, the military’s justification of the takeover is that it was not overthrowing a legal government, but instead is a counter-coup to the actual coup that Tandja instigated last year. The overthrow came days after 10,000 protesters gathered in the capital to pressure the government into reversing the constitutional changes. As a result, despite misgivings about their methods and intentions, there is a “sense of satisfaction” towards the newly-formed junta, called the Supreme Council for the Restoration of Democracy. Although Niger has suffered numerous coups in the past and people are keen to maintain democracy there, Tandja’s actions in the past year had already eroded most of the democratic gains the country had accomplished since the last bout of military rule. In such a setting, opposition leaders believe that a change in government can at least present an opportunity to bring back the democratic progress that Tandja clearly abandoned.
Not everyone is buying that argument. On Friday, the African Union suspended Niger as part of its tougher stance against coups and UN Secretary-General Ban Ki Moon has also condemned the military takeover. But the tit-for-tat of unconstitutional action that the situation in Niger represents puts everyone in a precarious position. The AU’s new definition of a “coup d’état”, adopted just two weeks ago, includes incumbent leaders who unconstitutionally lengthen their stay in power. This is exactly what Tandja did last year. Thus the situation in Niger is not one where one side is right and the other wrong, but one where both sides are wrong and nobody is right, leaving the Nigerien people stuck in the middle. With that kind of math, it is difficult to say who should be supported or helped, though eventually the regional and international organizations involved will have to make a choice.
Much of this could have been avoided if those same organizations and powers had challenged Tandja’s actions in the first place. Though sanctions and condemnations were passed around, there was not nearly as much international attention given to his constitutional dalliances as the military’s coup is receiving now. That lack of focus is what made last week’s coup almost inevitable. It is also a lesson we should have learned from the Honduran coup crisis last year. A month after that coup happened, I noted the parallel situation unfolding in Niger and wondered where the international outrage was for Tandja’s internal coup. That outrage never came, at least not until Friday after the military stepped in to allegedly fix what Tandja broke.
Of course, it is still early in this new chapter in Niger’s political crisis. Although the junta claims that restoring democracy is its goal, there has not yet been any mention of when new elections will be held, and in any case, actions speak much louder than words. It is quite possible that things will get far worse inside Niger with the junta rather than better. But at the very least, the situation highlights the need for us to pay closer attention to what happens before the coup, instead of only what comes after.
