On various continents, intergovernmental organizations resort to legal engineering in order to promote democratic governance in their member states. Those legal efforts operate in a fluctuating political and societal environment, which they seek to transform but which, in turn, shapes the authority, the effectiveness and even the very nature of the legal instruments. As this Special Issue shows, this process of mutual influencing between law and context as interdependent variables also applies to the African Union's (AU) landmark instrument for democratic governance promotion. Roughly one decade after the adoption of the African Charter on Democracy, Elections and Governance (ACDEG), fascinating developments, challenges and questions have emerged, some of which were arguably not anticipated by its drafters. For example, who envisaged that the ACDEG might become a justiciable instrument before the African Court on Human and Peoples’ Rights? In the wake of popular uprisings in response to gross undemocratic practices, what normative guidance does the ACDEG offer in response to such developments?

This article traces a genealogy of the African Charter on Democracy, Elections and Governance (ACDEG) and examines the charter's overall implementation. While there has always been a struggle between competing views of how to ensure more or less continental accountability for norms related to democratic governance in Africa, enforcement by the African Union (AU) has definitively become more robust since the ACDEG's adoption. The article argues that this development is observable in three trends: continental legalization, technocratization and judicialization of politics. It evaluates the growth of normative commitments in the field of democracy, elections and governance and their increasing consolidation into binding legal treaties; explores the increasing reliance on AU technical assistance in the implementation and interpretation of these instruments; and assesses the expanding role of continental and regional judicial bodies in enforcing commitments to democracy. Building upon a better understanding of these trends, the article identifies key contextual factors that will shape the ACDEG's future implementation.

The African Charter on Democracy, Elections and Governance requires state parties to establish and strengthen democratic institutions, the rule of law, human rights and independent electoral systems. However, the extent to which these provisions can be invoked by individuals and non-governmental organizations before a court of law is uncertain. It is also unclear whether such provisions guarantee “stand-alone” individual rights and as such whether the charter could be considered to be a human rights instrument. This article seeks to analyse whether the charter is a human rights instrument, as well as examining its justiciability in light of the decision of the African Court on Human and Peoples’ Rights in APDH v Côte d'Ivoire. The analysis highlights the court's decision affirming that the charter is a human rights instrument and that individuals and non-governmental organizations can file cases in a court of law seeking its enforcement.

According to various provisions of the Protocol Establishing the African Court on Human and Peoples’ Rights, the court has jurisdiction over the interpretation and / or application of human rights instruments ratified by the states concerned. This article considers whether, in terms of those provisions, the African Charter on Democracy, Elections and Governance (ACDEG) is a relevant human rights instrument over which the court can exercise its jurisdiction. It aims to consider the contours of the main question posed and clarify the relevant aspects in light not only of the court's jurisprudence but also of the overall legal framework of the African Union. In this regard, before drawing appropriate conclusions, it addresses three main questions. What is a human rights instrument? Which elements in the ACDEG clearly relate to human rights? And, what is the court's approach on the issue?

The adoption of the African Charter on Democracy, Elections and Governance (ACDEG) has been a milestone for the transformation of Africa's political landscape. This instrument seeks to expand on the ideals of liberal democracy enshrined in the Constitutive Act of the African Union and other African fundamental instruments. The ACDEG seems to pave the way for the right to democracy for Africans, which entails, inter alia, political sovereignty of African citizens. The latter have clearly and vigorously exercised their sovereignty through elections when given such an opportunity. However, in some instances, African citizens resorted to popular uprisings in cases of gross violations of their democracy-related rights. With reference to the recent popular uprisings and coups (or attempted coups) in Africa, this article enquires, from a human rights perspective, whether ACDEG or other instruments, enshrine a right to resist gross undemocratic practices underpinning the right to democracy.

During the first decade of the African Charter on Democracy, Elections and Governance, one significant political development in Africa has been the resort to popular protests or uprisings against tyrannical rule. These uprisings have been remarkable for their scale and extraordinary political ramifications, and succeeded in unseating longstanding authoritarian rulers. They presented serious challenges to the African Union's democratic and constitutional governance norms, in particular regarding the status of uprisings in relation to the ban on unconstitutional changes of government and the determination of whether and when resultant changes of government are constitutional. In addressing these issues, this article contends that, although popular uprisings (also called “democratic revolutions”) are not a priori deemed constitutional, the AU's application of its norm banning unconstitutional changes of government to the popular uprisings in North Africa and Burkina Faso has opened a legal avenue that offers constitutional legitimacy for popular uprisings overthrowing authoritarian regimes.

A growing number of states have modified constitutionally determined presidential term limits or adopted a flexible interpretation of relevant constitutional provisions to allow incumbent leaders additional terms in the highest office. This article investigates African Union (AU) responses to attempts to overturn or weaken term limits on executive power, one of the most tenacious constitutional trends in Africa. Inspired by the AU's well-established discourse on “unconstitutional changes of government” under the African Charter on Democracy, Elections and Governance, the article frames the manipulation of presidential term limits as “undemocratic changes of the constitution”. From this perspective it argues for a more active role for the AU in monitoring and enforcing constitutionalism and respect for democratic standards by member states when they amend their constitution. It concludes with a tentative set of principles to guide processes of constitutional change in Africa.