The compromise decision is unlikely to benefit Chad’s citizens or the credibility of the African Union.
Disagreement among African states on responding to the coup in Chad has resulted in a trade-off based on questionable assumptions. The African Union's (AU) decision runs contrary to its principles, and will be difficult to implement, leaving Chadians with little guarantee of a constitutional transition.
The AU's decision was released on 14 May - two weeks after a fact-finding mission led by the AU Commissioner of Political Affairs, Peace and Security and representatives of the Peace and Security Council (PSC). Unlike previous coups in Sudan or Mali, the PSC did not sanction Chad or suspend it from the AU for what appears to be an unconstitutional change of government.
The AU's Lomé Declaration of 1999 and African Charter on Democracy, Elections and Governance are clear that the continent should 'prohibit, reject and condemn' unconstitutional changes of government in any member state as a 'serious threat to stability, peace, security and development.'
With Chad, however, the PSC faced a double challenge: how to assert the AU's principles against unconstitutional changes of government while accommodating Chad's neighbours. The latter embraced the military transition and opposed any suspension which they believed would fuel the country's instability.
Unlike with coups in Sudan or Mali, the PSC didn't sanction Chad or suspend it from the AU
This dilemma reflects divisions among PSC member states. Some called for Chad's immediate suspension based on the AU's legal framework, while others thought Chad was responding to an exceptional security situation that required special treatment.
To balance these contradictory demands, the PSC endorsed Chad's Transitional Military Council but issued conditions. These included the immediate review of the hastily designed transition charter and the rejection of any potential extension of the 18-month transition. The PSC also called for the establishment of a national transition council as the interim legislative body, inclusive national dialogue and respect for human rights and fundamental freedoms.
The PSC asked AU Commission Chairperson Moussa Faki Mahamat to appoint a special envoy to 'work closely with the transition government leading to the organisation of free, fair and credible elections.' It asked Faki to urgently fill the vacant position of head of the AU Liaison Office in N'Djamena to ensure the special envoy had logistical support.
However, the PSC decision raises questions in terms of its rationale, implementation and implications. To justify its decision not to enforce AU norms, the PSC said Chad was justified in suspending its constitutional rules because it was under attack from foreign mercenaries (allegedly from Libya) with terrorist ambitions.
The PSC adopted Chad's security assessment - that the country was a victim of developments in Libya
The PSC referenced several legal instruments in its decision: the OAU Convention for the Elimination of Mercenarism in Africa; the AU Non-Aggression and Common Defence Pact; and the Convention on the Prevention and Combating Terrorism.
To label the Front for Change and Concord in Chad (FACT) as mercenaries is questionable though, as there isn't much evidence that it comprises other nationalities. The convention on mercenarism cited by the PSC doesn't apply if FACT members are from Chad. While FACT rebels have allegedly played a mercenary role in Libya, as reported by the UN Panel of Experts, it's unclear why this group and not others received this specific qualification.
The PSC adopted the security assessment by Chad's new administration - that the country was a victim of developments in Libya. It did so even though over the past decade, Chad has limited destabilisation within its borders from Muammar Gaddafi's death that affected many countries in the Sahel.
Implementing the PSC decision will be difficult. Attempts to mitigate its endorsement of the Transitional Military Council produced a resolution that lacks clarity. The PSC didn't set clear deadlines and remains vague on how it intends to push Chadian authorities closer to the AU's governance principles.
The PSC didn't set clear deadlines and is vague on how to move Chad closer to AU governance principles
For example, while it calls for a 'civilian-led transition', the PSC doesn't propose a timetable or outline incentives to steer Chad's new authorities in this direction. Divisions among PSC members explain the lack of coercive measures to ensure the current unconstitutional transition is adjusted according to AU governance norms.
The effects of the PSC's decision could be dire for the AU and Africa. It illustrates a gradual erosion of the AU consensus on unconstitutional changes of government. Beyond Chad, the decision raises questions about whether the AU or sub-regions should have the leading role in peace and security matters. Situations in Mali, Sudan and Zimbabwe suggest that the PSC has tended to follow the preferences of the region concerned when dealing with a national crisis.
The PSC's Chad decision reflects the views of Central Africa - a region where constitutionalism is closely aligned with presidential power. As a result, compliance with the AU's legal and political frameworks is gradually giving way to the preferences of neighbouring states - despite the risk of legal and political inconsistency.
The PSC's response could also indicate the gradual transformation of the AU's Peace and Security Architecture to a system that protects governments and regimes in the face of real or perceived enemies. The emphasis on the threat posed by armed groups in Chad to justify an unconstitutional political transition suggests that state security is deemed more important than constitutional values.
This is a major setback for the AU and Africa. The continental body must ensure that Chad moves as quickly as possible towards a democratic transition. The credibility of the PSC and AU is at stake.
Paul-Simon Handy, ISS Senior Regional Adviser and Félicité Djilo, Independent Analyst focusing on peace and security