A coup d'état is an illegal act. Because it is always access to the supreme function outside constitutional forms. However, legal scholars agree that illegal acts can be considered legitimate in certain cases, and under certain conditions, that state criminal laws qualify as “self-defense” or a “state of necessity.” This therefore also applies to a coup d'état, which can be justified largely by putting an end to the oppression exercised by those in power over the people, or by preventing or annihilating a fraud against the Constitution carried out by those who are not in power. of the power to maintain it.
The coup d'état poses, however, a double and formidable intellectual and political difficulty. Mutatis mutandis, When the thief of an apple takes advantage of the state of need to be starving, this state of need is evaluated by third parties, the judges who judge the thief is taken. Likewise, when a police officer fatally shoots an armed individual who approaches him, it is up to the judges to say whether or not the officer was in a situation of lawful defense. However, there is no impartial third party who can affirm that this or that coup d'état was legitimate in light of the arguments and documents produced by those who instigated it. In the language of political philosophy and constitutional law, we say that the perpetrators of a coup d'état have the “competence of competence” to decide on the legitimacy of their own action.
Constitutional fair play
International organizations, the African Union among others, are not and cannot be the impartial third party that says whether a coup is legitimate or not. And he provides evidence of this reluctantly, as he systematically condemns coups, and with arguments that have their limits. These organizations condemn forceful coups d'état in the name of “preserving international or regional peace and stability”. As for the reason for the systematic notification of coups d'état related to the “necessary respect for the constitutional order”, it does not take into account the fact that this constitutional order may have been scandalously disregarded and for all kinds of vileness on the part of those in power.
The coup d'état poses a second difficulty. Even assuming that it is a priori legitimate, there is no guarantee that those who did it do not want to remain in power and commit themselves to a kind of constitutional-style game. The latter define the forms of action of those in power, not foreseen in the texts, but to which they must conform for the democratic system to function or, in the case of the perpetrators of a coup, to demonstrate their democratic ethos. .
However, there is no guarantee that it will immediately want to build a constitutional order and a fully democratic electoral system. This guarantee is lacking for at least two reasons. Firstly, perpetrators of coups d'état may fear for their own lives and peace of mind if they leave power too soon. The power that succeeds them may decide to prosecute them criminally. Secondly, the drafting of a Constitution and the adoption of electoral laws considered relevant are not sufficient to build a constitutional order and a truly democratic electoral system, especially in Africa.
Informational justice
A constitutional and democratic system presupposes, firstly, a normative device that is relevant from an anthropological point of view, because that he would take into account the fact that “it is in the order of things that all individuals who hold power are inclined to abuse it”. Limiting the number of mandates, limiting the accumulation of mandates and functions, removing or prohibiting political transhumance, prohibiting any change to electoral laws one or two years before the elections, are all limiting standards. There are many others. This system also involves bureaucratic engineering – it is the most complex and the most difficult to obtain – it involves both administrations and courts, in addition to the requirements of the ideal tool in Africa, which is an electoral code in good and proper form.
This bureaucratic engineering is complex because it must organize a whole set of security measures, which are particularly unsuccessful in Africa. This concerns, for example, the security of people's identity, which presupposes civil insurance registration services, secure and authentic issuance of identity documents, etc. from the preparation of electoral lists to the minutes of polling stations, everything must be traceable and objective. In addition to security, the bureaucratic engineering that makes a true democratic system possible must produce informational justice for citizens in electoral matters. This implies many constraints, in addition to the rules that organize the distribution of audiovisual speaking time in the pre-electoral and electoral periods.
If, hypothetically, the authors of a coup d'état have caused an assessment of the immense difficulties they face, they must still take seriously the question of the men who will work for the birth of a new, democratic and sustainable constitutional order. And this issue is no simpler since the fallen system was only able to function with the support of several public officials or judges who benefited from it in terms of personal and professional advantages, admitting that corruption imposes in an atavistic way the professional competence of public workers. The vexing question here is whether or not African countries aspiring to solidly enter democracy should undergo lustration procedures like those practiced in the former Eastern European countries, which are several members of the European Union, or by South Africa. , endless. end in apartheid.
