Case Study: Sudan

Africa is home to a range of democratic experiences, and the average level of democracy at the continental level remains relatively stable, despite advances and (more often) declines in particular countries. The one exception to this broad stability is in Representation, where there has been a decline in the continental average over the last five years (Figure 2.1). Given Africa’s size, such a decline is a sign of serious problems, as detailed below. It highlights two pressing challenges for democratic consolidation: failures in election administration and declining trust in institutions (Mbaegu 2023; Bloh 2023). Meanwhile, Participation (including Electoral Participation and Civil Society) stands out as a bright spot, as many countries have maintained the progress made in the 1990s (Figure 2.2).

This contrast between trust and participation leads to a broader argument about democracy in Africa: people care about democracy, and they are willing to mobilize to support it. However, this support is not unconditional. Critical material issues (often in terms of the fulfilment of basic needs) have pushed people to reconsider their support for the institutions that supposedly represent them, yet it is in the interest of incumbent governments to focus on service delivery rather than on any of the larger institutional problems that are often at the root of broader deficiencies. Nevertheless, in the face of mounting debt, economic and fiscal crises, and broadening austerity measures, this link between citizens’ unmet welfare needs and the failure of purportedly democratic governments to develop economic opportunities (particularly for youth) could challenge the legitimacy of politicians and institutions (The Economist 2023; Bagnetto 2023.

Finally, conflict and insecurity continue to threaten democracy and human rights. Increasing levels of violence in Burkina Faso, Democratic Republic of the Congo, Mali, Mozambique, Niger and Sudan are particularly notable (see also the case study on Sudan). Africa also remains a field of geopolitical competition as foreign powers—such as China, France, Russia, the UK and the USA—seek to maintain spheres of influence and to pursue their own economic and security interests. It will not be possible to secure a democratic future without addressing insecurity and governance deficits in their many manifestations.

Representation

Representation is currently an area of weakness across the continent. Only two African countries rank in the top 50 for Representation in the world: Cabo Verde (see also the case study) and Ghana. South Africa follows these countries in 54th place. The African countries with the biggest falls in ranking between 2021 and 2022 were Burkina Faso, Tunisia and Guinea-Bissau. Kenya showed the most notable improvement in the rankings.

These declines in Representation at the national level have, for the most part, followed one of two major patterns. First, several countries have experienced coups d’état, unconstitutional changes of government and other ‘undefined transitions’, whose outcomes remain uncertain. Burkina Faso, Guinea, Mali and Sudan stand out in this regard, and their Representation scores have all dropped to zero. The wave of coups continued in 2023 (not yet reflected in the GSoD Indices) with the overthrowing of the governments in Niger and Gabon. In the second pattern, broader democratic declines have been seen in, for example, Benin, Comoros, Mauritius and Tunisia. This was reflected in lower Representation scores, as political competition has been limited by government policies and new laws—shown by declines in Credible Elections (Figure 2.3). Note, however, that these declines are from a relatively high level, and all four countries remain above the continental average for Credible Elections. In the case of Tunisia, the recent decline has not erased the improvements made during the democratic transition, and the 2024 election will offer an opportunity for the country’s young institutions to regain their footing. It should be noted, however, that the continental average for Credible Elections is worryingly low (0.38). As this factor tracks several others that measure the independence and effectiveness of EMBs, it highlights weakness in a key CI and points to an important area for investment to secure democracy in the region.

Beyond the conduct of elections, other long-running challenges to the democratic standard of elected government continued to manifest during 2022 and 2023. The evasion of presidential term limits has become an established practice on the continent (examples in the last five years include Côte d’Ivoire, Comoros, Guinea and Togo) (Sampson 2023), and even where such moves have survived constitutional challenges, they set a damaging precedent for the core democratic commitment to the alternation of leadership.

Rights

In a globally comparative context, Rights remain another challenging area in Africa. Only two African countries rank in the top 50 globally in 2022: South Africa and Tunisia. The movements in the rankings in this category between 2021 and 2022 were less dramatic than in Representation, however, Botswana, Mali and Ethiopia all fell in the rankings. The biggest gains over one year were made by Zambia, Tanzania and The Gambia.

Within the area of rights, a key focus across Africa is Civil Liberties. There has been concern in many countries about the shrinking of civic space. Due to its dual nature as a civil liberty and an important CI, media freedom deserves special attention. The Freedom of the Press factor has seen significant declines over the last five years in Eswatini, Guinea, Madagascar, Mali, Senegal, South Sudan and Togo. Figure 2.4 illustrates the deterioration in Freedom of Expression, Freedom of the Press, Freedom of Association and Assembly, Freedom of Religion, and Freedom of Movement for the eight countries that have experienced significant declines in their overall score for Civil Liberties over the last five years.

Access to political processes does not depend solely on civic space as broadly understood. It is necessary also to consider the barriers to access and participation that many people face on the basis of ascriptive characteristics such as ethnicity and gender. There has been little significant change across the continent over the last five years in terms of either Social Group Equality or Gender Equality. Gender Equality is a particular area of concern as no African countries are classified as high-performing in this factor of Rights (12 are low performing and 40 are mid-range performing). The World Economic Forum’s Gender Gap Report 2023 stated: ‘At the current rate of progress, it will take 102 years to close the gender gap in Sub-Saharan Africa’ (World Economic Forum 2023).

Rule of Law

An area of particular interest, given this report’s focus on the formal and informal institutions and practices that limit state power, is the status of the Rule of Law on the continent. Only three African countries rank among the top 50 globally in this category: Botswana, Namibia and Cabo Verde (see also the case study on Cabo Verde). Over a one-year period, the countries with the most significant falls in the rankings were Tunisia, Mauritius, Burkina Faso and Niger. The biggest gains over the period were in Zambia and Mozambique. Performance in this category was broadly low, but there have been significant advances and declines in countries’ performance compared with five years ago (Figure 2.5). Several countries with declines in this area were also noted above, for Representation, but Central African Republic, Comoros, Eswatini, Mauritius and Tunisia also all saw declines, with threats to Judicial Independence a common (but not universal) theme. The countries experiencing advances included some starting from a very low level of performance, but significant improvements were noted in Burundi, Democratic Republic of the Congo, Eritrea, Malawi and Togo.

Absence of Corruption stands out as an area of progress in Africa (a departure from the global trend of stagnation), with more countries experiencing significant advances (six) than any other region of the world. Over the last five years Angola, Benin, Burundi, Libya, Sierra Leone and Sudan all saw significant improvements in the Absence of Corruption factor—sometimes despite declines in other areas of democratic health.

Participation

Despite the contraction of civic space noted above, the Participation category is an area of strength across the continent. In the other three categories of democratic performance, only two or three African countries are ranked among the world’s top 50. In Participation, nine African countries are in the top 50: Mauritius, Sierra Leone, Senegal, Ghana, Mali, Kenya, South Africa, Burkina Faso and Zambia. There was also a great deal of movement in the rankings between 2021 and 2022. The biggest falls were in Tunisia, Burkina Faso and Malawi. At the same time, Kenya and Zambia rose dramatically. The improvement in Zambia is part of a larger pattern of opening up civic space, which has included legislative actions such as the repeal in 2022 of a long-abused colonial-era law criminalizing defamation of the president (Short 2022). As shown in Figure 2.6, across a broad range of values of Representation (a baseline metric of electoral democracy), African countries have higher levels of Participation than countries in other regions with similar Representation scores. This area of democratic performance appears to have some consistency over time.

African states were constituted in different ways and have developed differing formal institutions. Despite a prominent executive in many African systems of government, in many countries across the continent there are still strong institutions that could (and often do) serve to limit executive power (Cheeseman 2018). Not all of these are formal institutions, as defined in the constitution, nor are they all found at the domestic level. Instead, CIs in Africa often comprise informal institutions (Chabal and Daloz 1999) and democratic norms developed at the supranational level (Landsberg 2012; Yaya 2014).

At the same time, it must be acknowledged that in many countries CIs and the state itself remain weakly institutionalized. Beyond the executive, the context of dominant party rule presents a challenge to the establishment of effective CIs. In these cases, ruling parties themselves must function as CIs that constrain their own leadership (Prempeh 1996). In countries with a dominant party and a lack of intra-party democracy, courts and fourth-branch institutions must take up the CI functions, guarantee institutional accountability, and police the boundaries between institutional roles (Lotshwao 2009; Gardbaum 2019). Indeed, across the continent courts have emerged as key CIs in themselves and as effective supports for other CIs, such as social movements and fourth-branch institutions (Abebe, Dixon and Ginsburg 2022).

Beyond this horizontal distribution of power, the vertical distribution of power between the central government and subnational governments can also serve as a CI, particularly when different parties are in power at the subnational level (see, for example, Kenya and South Africa). However, such regionally based partisan divisions can also produce conflict.

In this context, key GSoD indicators of the health of CIs include Absence of Corruption, Credible Elections, Elected Government, Predictable Enforcement and Judicial Independence. Most African countries perform below the global average for these indicators, and these are key areas for democratic assistance to target (Figure 2.7).

Supranational institutions as countervailing institutions

A distinctive feature of CIs in Africa has been the role of supranational institutions—such as the African Union (AU), the Regional Economic Communities (RECs) and the Regional Mechanisms—in establishing and maintaining democratic norms. These norms are asserted through things like the Constitutive Act of the African Union, which contains a provision for suspending member state governments who come to power through unconstitutional means (Organisation of African Unity 2000), the AU’s recent Accra Declaration on Unconstitutional Changes of Government in Africa (African Union 2022), and regional agreements such as the African Charter on Democracy, Elections and Governance (ACDEG) and the African Charter on Human and Peoples’ Rights (ACHPR). Among the RECs, the Economic Community of West African States (ECOWAS) has been especially active, with its military intervention in The Gambia in 2017 seeming to set a precedent for a robust approach to supporting democratic transitions of power (Khadiagala 2018). The 2023 coup d’état in Niger tested ECOWAS’s commitment to such forceful approaches, and highlighted the complexities of external support for democracy (Chason 2023). These moves to establish democratic norms have developed alongside other initiatives for continental cooperation, including the African Continental Free Trade Area. In this way, macroeconomic considerations and democratic norms are loosely connected, but often pursued together.

Though it is clear that the AU and RECs have a mandate to both establish and protect these norms, these supranational approaches have met with mixed results—highlighting the limitations of top-down norm enforcement, particularly in the absence of an effective sanctions regime. The limited effectiveness of these supranational institutions has been clear in the failure of any external actor to bring order and protect lives in states experiencing violent conflict during recent years, including Cameroon, Chad, the Democratic Republic of the Congo, Ethiopia, Mali, South Sudan and Sudan (among others). Member states still prioritize sovereignty over peace. Another notable gap between theory and practice has been state non-compliance with the rulings of regional courts (such as the African Court on Human and Peoples’ Rights and the ECOWAS Court of Justice) (Ibrahim 2020; Chenwi 2021). It is in the interests of REC and AU member states to take these support and enforcement mechanisms seriously. Regional stability and prosperity depend on strong democratic and rule of law institutions, but supranational institutions cannot function effectively without the full cooperation and commitment of their member states’ national institutions and political leadership.

Domestic institutions as countervailing institutions

The greatest challenge that domestic institutions face in constraining and balancing power is the executive supremacy that characterizes political systems across much of the continent (Prempeh 2008; Heinrich Böll Stiftung 2012; Arriola, Rakner and van de Walle. 2022). This is particularly the case for African legislatures, which for a variety of reasons have often lacked the independence and capacity to effectively carry out their legislative and oversight functions (Barkan 2008; Heinrich Böll Stiftung 2012; Opalo 2019). The enabling role that the Central African Republic’s National Assembly played in President Touadéra’s unconstitutional attempt in 2022 to rewrite the Constitution (including the removal of the presidential term limit) is a stark example of the sort of executive deference that many African legislatures have been criticized for (Gloppen, Gerzso and van de Walle 2022). That opposition legislators were only able to slow the constitutional change by challenging it in the country’s Constitutional Court serves to underline the relative weakness of the National Assembly among the country’s three branches of government (Vohito 2022; Africa Confidential 2022).

As the Central African Republic case illustrates, the difficulties that many legislatures face in checking overbearing executives means that in Africa this task often falls to the courts. Through the now widespread mechanism of judicial review, this branch is empowered to enforce fundamental rights, constitutional limitations on executive power and, in some senses, broader democratic norms (Prempeh 2006, 2008; Corder 2022). In February 2023, for example, the Kenyan Supreme Court stepped in to protect the rights of the country’s vulnerable LGBTQIA+ community, when it ruled that an executive agency’s refusal to register an LGBTQIA+ organization as an NGO breached the constitutional right of gay and lesbian Kenyans to freedom of association (Kenya 2023; Kelleher 2023).

Increasingly, African courts are also being called upon to defend electoral integrity. This is often through electoral dispute litigation, such as that which followed the general elections in Nigeria in 2023 and Kenya in 2022, but there are other circumstances in which courts have intervened on questions of electoral integrity (Ezeh 2022; Kenya 2022; Eboh 2023). The opening up of South Africa’s elections to independent candidates in 2023, for instance, came about as a result of a judicial review of the country’s electoral framework, in which the Constitutional Court found the bar on such candidates to be unconstitutional (South Africa 2020; Gerber 2023). Yet, a lack of judicial independence remains a problem in many parts of Africa. In some countries, such as Senegal and Zimbabwe, it has reached a sufficiently low ebb for the authority of the courts to be turned on government opponents, who have found themselves silenced or marginalized by criminal prosecutions and convictions (Arriola, Rakner and van de Walle 2022; Ndiaye 2023; Chingono 2023). A recent example of this appeared to be the treatment of Zimbabwean opposition MP Job Sikhala, whose claim that supporters of the ruling party had killed an opposition activist landed him with a criminal conviction for ‘obstructing the course of justice’, which disqualified him from contesting his seat in the 2023 elections (Amnesty International 2023; Mutsaka 2023; Nyathi 2023). Even where courts are reasonably independent, however, their capacity to constrain and balance can be curtailed by limited access to justice and weak civil societies because, of course, they can only act on issues brought before them.

In addition to the three branches of government commonly defined in constitutions, since the 1990s many African states have given constitutionally defined independent status to regulatory and oversight bodies that have come to be known as fourth-branch institutions (Fombad 2016; Bulmer 2019; Tushnet 2021). The number and type of fourth-branch institutions varies, but they commonly include EMBs, ombuds offices, anti-corruption agencies and human rights commissions (Bulmer 2019; Tushnet 2021). While these institutions are designed to be politically neutral, their work can be highly contentious and they are often subjected to considerable political pressure (Fombad 2016; Tushnet 2021). Their entrenched status and the support of constitutional courts can be critical to their ability to withstand such pressure and fulfil their functions. This was positively illustrated in the important role played by South Africa’s Constitutional Court in the pioneering anti-corruption work carried out by the Office of the Public Protector (Tushnet 2021; Khaitan 2023). In contrast, the lead-up to the 2023 Zimbabwean elections was replete with incidents that suggested its EMB, the Zimbabwean Electoral Commission (ZEC), was under the sway of the government (Africa Confidential 2023a, 2023c; AFP 2023). This occurred despite the fact that ZEC’s independence is entrenched within the country’s Constitution (Zimbabwe 2013; Fombad 2016).

Popular organization as a countervailing institution

Despite the institutional innovation that has taken place across Africa over the past three decades, formal CIs are not always sufficiently independent or effective. Disenchantment with democratic institutions, particularly legislatures, has pushed many Africans towards alternative forms of political participation, with mass action and protest movements taking on a role as a CI of last resort. Overcoming common exclusionary dynamics, youth political engagement has taken on particular prominence in many countries. The youth are driving new movements demanding improved policies and challenging state-perpetrated human rights abuses. In addition to offering inclusive opportunities for political participation and influence, the resistance committees in Sudan showed, throughout 2022, how effective protest movements can be at depriving undemocratic governments of legitimacy by exposing their abuses and countering their narratives (Diamond 1994); de Waal 2023; see also the case study on Sudan).

In many instances, however, protesters have struggled to achieve their aims. In 2023, for example, the Sudanese junta was able to derail attempts to restore the country’s transition to democracy (Africa Confidential 2023b). Protests have not been helped by the shrinking of Africa’s civic space noted above in the section on Rights, particularly the measures some governments have taken to restrict digital communication, such as shutting down the Internet—a key mobilizing tool on a continent where people are increasingly online (Dupuy, Arriola and Rakner 2022; Access Now 2023). Important, too, has been the widespread disruption of protests and detention of protesters by police and security forces (CIVICUS 2022). Yet these protest movements have also been impeded by the internal weaknesses associated with their horizontal structure, including a lack of leadership and a tendency to fracture, both of which have made it difficult for them to maintain their momentum and to influence formal politics (Honwana 2015; Lynch 2022; Dupuy, Arriola and Rakner 2022).

In the African context, potential CIs are found at every level of political engagement: from local community-organizing efforts to the AU’s Peace and Security Council. The performance of formal institutions has been mixed, and (with some exceptions) legislatures have not tended to fulfil the role of CIs on the continent. Instead, judiciaries and fourth-branch institutions have been the most effective limitations on executive power. Where formal institutions have proven unable to deliver democratic accountability and voice, new protest movements have been created, potentially providing a people-powered CI. Several hindrances to democratic consolidation across the continent remained pertinent in 2023, namely, heads of state who gain or maintain power in unconstitutional ways, dominant parties that lack internal democracy, weak parliaments, unaccountable police and security forces, endemic corruption and the negative effects of geopolitical competition for influence in Africa. Efforts to support CIs must take on these problems, and find innovative ways to constrain and balance executive power and thereby support democratic consolidation.