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Opinions of Thursday, 24 February 2011

Columnist: Asante-Yeboah, Joseph

The legality of removing Laurent Gbagbo

This article is in two parts. The first part considers the legality of removing Laurent Gbagbo as President of the Ivory Coast. The second part looks at the position taken by the NDC Government and by the NPP in opposition.

The legality of removing Gbagbo

Much has been said and written about the elections held in the Ivory Coast in October and November 2010 and the position taken by the incumbent, Laurent Gbagbo, that he won the election and remains President. Kofi Ata wrote a brilliant article on Ghanaweb on 10th January 2011 and concluded that the use of force by ECOWAS to remove Gbagbo would be illegal. I am grateful for the analysis he made, quoting articles from the United Nations charter. This article further looks at the issues he raised. It also considers the response of the NDC Government and the NPP to the situation in that country.

Elections were held in Cote d’Ivoire on 31st October and 28th November 2010. They were intended to reunify the country which has been divided between north and south by a conflict that occurred in 2002-03. Alassane Ouattara was initially declared the winner by the country’s election commission, a verdict backed by the UN which helped organise the poll. But the country’s constitutional council, headed by an ally of Gbagbo, later ruled that Gbagbo had won, citing irregularities in the north.

I remember Ghana’s former President Kufuor who was one of the international observers at the poll stating soon after the elections that they were fairly conducted, orderly and peaceful, and were an example to other African countries. I was therefore surprised to hear that Cote d’Ivoire’s constitutional council had overturned the verdict and given it to Gbagbo. In any case, in the civilised world, when a court makes a finding of fraud or irregularities in an election, a recount or another round of voting is ordered in respect of the area affected. The court does not simply overturn the verdict and hand over victory to the other contestant. A court that is worthy of its name will not do that.

So far, I have not heard of any of the international observers stating that there were irregularities in the elections. It has been said that, even if there were irregularities, they were not so widespread or substantial as to have affected the outcome of the elections. Of course, no election can be perfect. ECOWAS, the African Union, western powers and the UN have all said that Ouattara was the winner of the elections and have asked Gbagbo to hand over power to him. He has refused to go, and ECOWAS has threatened to remove him by force.

As Kofi Ata has pointed out, “Article 1(1) of the UN charter gives the world body the power to maintain international peace and security and, to that end, take effective measures for the prevention and removal of threats to peace….. In pursuance of this noble objective, the UN charter also provides for the use of force as part of collective measures taken by the Security Council under Article 42.” One might say that the present insecurity is contained within Cote d’Ivoire itself and there is no threat to international peace and security. To that, I would respond that it is important to take a broader view of Article 42 as skirmishes or an outbreak of civil war can spread to neighbouring countries. We must also not lose sight of the factors that have necessitated the stationing of ten thousand UN troops in that country.

Getting the Security Council to pass a resolution requires, more or less, a unanimous decision in view of the power of the veto. This is like passing a bill in parliament. We know how difficult it can be. Apart from agreeing to the idea itself, wrangling about the wording can go on for weeks or months. This haunted America and Britain in taking the decision to go to war in Iraq. Because they were unable to secure this “legislation” in the Security Council, the war has been condemned as being illegal. I was proud to hear the former United Nations Secretary-General, our own Kofi Annan, declare this on UK television on the 15th or the 16th of September 2004.
Apart from the proposal itself, members of the Security Council will oppose a resolution for ideological reasons. Kofi Ata has pointed out that Russia and China abstained from the vote that was taken at the UN giving recognition to Ouattara.

To go back to Article 1(1), it gives the UN the power to maintain international peace and security. The conflict in Cote d’Ivoire in 2002-03 that created a division between north and south which persists today means that there is no peace in that country. Even if there is, it is fragile to the extent that there are an estimated ten thousand UN troops in that country, and the UN mission has sent a request for an extra 1,000 to 2,000 soldiers.

Gbagbo continues to come under increasing pressure from the international community. In response, he has said that he would expel the ambassadors of UK and Canada. Both countries have expelled ambassadors appointed by him in order to replace them with diplomats chosen by Ouattara. The US has frozen the assets of Gbagbo, his wife and aides and has announced that it was barring US citizens from financial dealings with him. Thus, I would argue that these countries and others see the present state in Cote d’Ivoire as threat to international peace and security.

The next closest ground provided in the UN charter on which ECOWAS could possibly rely on for removing Gbagbo is “collective measures” in Article 1(1). Because of the almost impossible task of getting members of the Security Council to agree to pass a resolution on a specific issue as explained above, one country will try to carry another country along for its action to be collective to get as close as possible to legality. This was very much evident in the American invasion of Iraq. I doubt if America would have gone it alone without Britain’s support.

In the case of Cote d’Ivoire, several countries, ECOWAS and, above all, the UN, have recognised Ouattara as the legitimate leader of that country. Britain’s Deputy Prime Minister, Nick Clegg, has gone as far as asking Gbagbo to “go and go now”.

Article 53(1) of the charter states that “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without authorisation of the Security Council ...” I would say that the decision by ECOWAS to remove Gbagbo if he does not go himself has broad support among the international community, including the UN even if tacitly. The difficulty of getting the Security Council to pass a resolution authorising the use of force by ECOWAS has been discussed in paragraph seven above.

Kofi Ata points out that the legitimate use of force on humanitarian grounds is also strictly regulated by specified criteria. He adds that attempts have been made to agree on those criteria. He very helpfully enumerated them, twelve in all, in his article on Ghanaweb on 10th January 2011 entitled “The Cote d’Ivoire Crisis, Will the Use of Force by ECOWAS be Legal?”. Therefore, I will not repeat them here. I would say that the crisis in Cote d’Ivoire meet all of them, although I would agree that, in the present case, some of them stand out more than others.

Kofi Ata poses the question whether the use of force to remove Gbagbo would be reasonably necessary and proportionate to the objective of “achieving the goals of the Ivorian people” as stated in the ECOWAS communiqué of 24th December 2010. My answer is “Yes”. The will of the Ivorian people expressed in the elections of October and November 2010 has been frustrated by Gbagbo’s failure to hand over power to Ouattara. With support from the international community, including Britain which has expressly undertaken to give such support, although not in terms of troops, action by ECOWAS to remove Gbagbo is necessary and would be quick and proportionate. I would also expect the UN to give support for such action, even if covertly, and if, for nothing at all, to free up the ten thousand soldiers stationed in that country for other equally pressing missions, or even preserve resources. The reasons given here for intervention on humanitarian grounds apply equally to established customary practice.

Some parts of the UN charter, to a large extent, are no longer applicable, for example Article 53(2) that defines an enemy state. The law is not static, particularly in international affairs. We all know that autocratic rule, gross abuse of human rights, state controlled press and media, lack of transparency and accountability, bribery and corruption and unnecessary military intervention are the causes of the lack of development in Africa.

Things are changing. The west has changed direction following the end of the cold war, the fall of the Berlin wall, the demise of the Soviet empire and its communism, and the dawn of the electronic age. The emergence of terrorism is a huge challenge to the world and this has made the west reassess its priorities. Africa must seize this opportunity. It was time countries in the ECOWAS sub-region and elsewhere in Africa turned their attention to established customary practice to have free speech, respect for human rights and democracy firmly established in our region. That is the way we can develop as a people as the western world has done. This is why we should give broad, liberal and progressive interpretation to the Articles in the UN charter. We do not want to be left behind by the wind of change blowing though north Africa and the Middle East as I write this article.

I will conclude this part of the article by referring to what Kofi Annan said in Oxford in the middle of February 2011. He said that the refusal of the incumbent President of the Ivory Coast Laurent Gbagbo to concede defeat in an election that was independently monitored and certified to be fair risks embroiling the country in a new civil war. “Africa” and the “world cannot afford such a development” He continued that “if Gbagbo is allowed to prevail, elections as instruments of peaceful change in Africa will suffer a serious setback.” This is a compelling reason for removing Gbagbo coming from no less a person than the immediate past Secretary-General of the United Nations who happens to come from the ECOWAS sub-region.

The position taken by the NDC Government and by the opposition NPP

Although the NDC Government was a signatory to the declaration made by ECOWAS in December 2010 to remove Gbagbo by force if he did not go, the Government subsequently removed itself from that declaration by saying that it did not support his removal by force after all. A number of reasons have filtered through from Government circles at different times for the change in its position.

Amongst the reasons given are that the lives of the sizeable number of Ghanaians who reside in Cote d’Ivoire would be in danger if Ghana was to participate in military action and that diplomatic efforts were being made behind the scenes to resolve the crisis. A further reason given by President Atta Mills was that the Ghana Army was presently stretched with many of our soldiers already serving in peace missions abroad. Therefore, Ghana would not be able to commit troops for Cote d’Ivoire. He has further said that he personally did not think the military option would solve the problem. Ghana was not taking sides and would support any government. In other words, “Dzi Wo Fie Asem” (mind your own business). Ggagbo welcomed this position of Ghana Government as a common sense approach. This probably delighted the President and his NDC Government!

Eventually, after a short visit to President Atta Mills by Mr Odinga, Prime Minister of Kenya and chief mediator for the African Union in the Ivorian crisis, Mr Odinga announced that there had been misunderstanding and misrepresentation of Ghana’s position. Ghana had never said that it was in disagreement with the option of military intervention.

I felt saddened by the indecision demonstrated by the Ghana Government to the outside world. Not only that – on 17th February 2011, President Atta Mills gave the state of the nation address to Parliament. On that occasion, he referred to the Cote d’Ivoire crisis in only two sentences. After mentioning abundant experience and expertise in diplomacy that abound in the country, he said “We will draw on this expertise in our common desire to help our brothers and sisters in Cote d’Ivoire find a lasting solution to the political impasse there. This is not the moment for anyone with the interest of Ghana at heart to start beating war drums.”

I was disappointed that the President failed to tell us what progress there was in the diplomacy that he had said a month earlier that the Government was quietly undertaking. The speech did not sound like one coming from the President of a country across whose border ten thousand UN troops are currently stationed to separate two factions.

On 18th January 2011, following a news item I read in that afternoon, I instantly captured my emotion and made a note for myself as follows:

“I was much spirited when I read the following headline on Yahoo.News this afternoon: “UK demands Ivory Coast’s Gbagbo “go and go now”. The news items read: “Britain demanded on Tuesday that Ivory Coast ‘leader’ Laurent Gbagbo, who has refused to step down after a disputed election, “go and go now.” Deputy Prime Minister Nick Clegg made Britain’s toughest statement yet on the crisis after meeting Burkina Faso President Blaise Compaore in London on Monday evening to discuss the situation in Ivory Coast. Britain has said it would give support at the United Nations for the use of force to oust Gbagbo if West African nations sought backing for military intervention. However, Foreign Secretary William Hague has played down any prospect of direct British military intervention.

“I personaly feel that it will be lawful, not unlawful, for ECOWAS to use force to remove Gbagbo. I have had the impression all along that ECOWAS would have western support, even if covert, to remove Gbagbo. The above news item has confirmed this. And who will doubt that, if the west mean to support ECOWAS in that way, the man would not be gone within a day or two, if not hours (if concrete action was commenced by ECOWAS)?

“This is the moment Ghana could take the lead as a sub-regional or even a regional power. I was much impressed when Nana Akufo-Addo unequivocally called for Gbagbo to go even in the early days of the crisis when he held a birthday dinner for former President Kufuor. Sir John has issued a brilliant statement making the same call. I feel that the NPP should continue to take a firm position on this and that position should be that, if Gbagbo does not go within a set time scale, ECOWAS should remove him by force. NPP must not miss the lifeline thrown by HM Government..... Remember, the earlier military action is taken, the swifter it would be and would be unlikely to endanger many lives. Military action within the shortest possible time – we are fed up glorifying rogues in our part of the world. Nick Clegg has made my day. I will sign off.”

On the position taken by the NPP, I would like to reiterate my view that I found quite impressive the statement issued by Kwadwo Owusu-Afriyie, alias Sir John, General Secretary of the Party, in January 2011, seeking clarification of the NDC Government’s position. But – wait a minute – the statement issued by Nana Addo Dankwa Akuffo-Addo, presidential candidate of the NPP for the 2012 election, was even more impressive.

As Ghana’s Foreign Minister who was deeply involved in attempts to solve the Ivorian crisis in 2002-03, he recounted the international efforts that have been made to solve the conflict. The statement could be seen as a defining moment in directing Ghana’s foreign policy. It was detailed, cogent and clear in calling for the removal of Gbagbo. When I read the statement, I had the feeling that this was truly a statesmen, a leader in waiting who was working hard to bring peace and stability to the ECOWAS sub-region.

I am convinced that, if it was an NPP government that was in power, Gbagbo would have gone by now. I say this because an NPP government would have given clear and firm leadership to ECOWAS which would have brought motivation and hope to the Ivorian people. This is the type of leadership that America, Britain, France, the rest of the western world and the United Nations are looking for. With such international support, even covertly, military action would be swift. I reiterate my view that the removal of Laurent Gbagbo by ECOWAS would be legal.

I dedicate this article to Dr Joseph Boakye Danquah, Doyen of Ghana Politics, who died in Nsawam medium security prison on 4th February 1965.

Joseph Asante-Yeboah