Articles 4(h) and 4(p) were crafted to ensure that the African Union would not become a passive observer to grave crises within its own borders. They were intended to prevent silence in the face of mass suffering.
By Timothy Enongene
Guest Editor-in-Chief, The Independentistnews
I. Introduction
The ongoing conflict in Cameroon’s North-West and South-West regions presents a significant institutional test for the African Union (AU). At issue is whether the AU’s response aligns with two pivotal provisions of its founding instrument — the Constitutive Act of the African Union (2000):
Article 4(h) – The right of the Union to intervene in a Member State in respect of grave circumstances, namely war crimes, genocide, and crimes against humanity.
Article 4(p) – The condemnation and rejection of unconstitutional changes of governments.
These clauses marked a decisive evolution from the former Organization of African Unity’s strict non-interference doctrine toward a model often described as “non-indifference.” The legal and moral question is whether that shift is being meaningfully operationalized.
II. Article 4(h): The Right of Intervention in Grave Circumstances
- A Transformative Legal Standard
Article 4(h) provides: “The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.”
This provision was groundbreaking in African institutional law. It recognized that sovereignty cannot serve as a shield where mass atrocity crimes are credibly alleged. In doing so, it anticipated principles later reflected globally in the doctrine of the Responsibility to Protect (R2P).
- Legal Threshold
The activation of Article 4(h) depends on credible evidence of: War crimes, Genocide, Crimes against humanity. These categories are defined under international law, particularly through the Rome Statute of the International Criminal Court (1998) and customary international humanitarian law.
Allegations such as systematic attacks on civilian populations, widespread destruction of villages, extrajudicial killings, or forced displacement — if substantiated — would require assessment against these legal standards.
The AU is not required to prejudge guilt. However, it is institutionally obligated to ensure credible investigation when grave allegations persist.
- Right or Responsibility?
Although Article 4(h) speaks of a “right” to intervene, its moral architecture suggests a duty to act where grave crimes are credibly alleged. A persistent gap between legal authority and institutional action risks hollowing out the principle of non-indifference.
III. Article 4(p): Unconstitutional Changes of Government
Article 4(p) affirms the AU’s: “Condemnation and rejection of unconstitutional changes of governments.”
Historically, the AU has applied this provision primarily to military coups. However, legal scholars increasingly question whether a narrow interpretation fully reflects the spirit of the clause.
If constitutional arrangements are fundamentally altered without inclusive consent, or if constitutional guarantees are systematically undermined, the distinction between overt coups and structural constitutional erosion becomes blurred.
The challenge for the AU is interpretive: Should Article 4(p) remain limited to sudden seizures of power? Or should it evolve to address prolonged structural breakdowns that undermine constitutional governance?
IV. Sovereignty and the Doctrine of Non-Indifference
The AU Constitutive Act deliberately balances: Article 4(g): Non-interference in internal affairs. Article 4(h): Intervention in grave circumstances. This balance reflects a conscious attempt to avoid both external domination and internal impunity. Sovereignty remains foundational — but not absolute.
If non-interference consistently prevails over credible allegations of atrocity crimes, the equilibrium envisioned in the Constitutive Act is weakened.
V. Institutional Credibility and the Peace and Security Council
The AU Peace and Security Council (PSC) is mandated to prevent, manage, and resolve conflicts. When Member States engaged in active internal conflicts serve on the PSC, the issue is not legality — the rules permit it — but perceived impartiality.
Institutional legitimacy depends not merely on procedural compliance but on demonstrable neutrality and consistent application of norms.
VI. Lawful Avenues Available to the AU
Without immediately invoking Article 4(h) intervention powers, the AU retains several lawful options: – Independent fact-finding missions. – Activation of the Continental Early Warning System. ‐ Appointment of a High-Level Envoy. – Formal mediation under AU auspices. – Referral to the African Commission on Human and Peoples’ Rights. These mechanisms demonstrate constitutional seriousness without compromising sovereignty.
VII. Conclusion
Articles 4(h) and 4(p) were crafted to ensure that the African Union would not become a passive observer to grave crises within its own borders. They were intended to prevent silence in the face of mass suffering.
The central legal question is not whether the AU has authority. It does. The question is whether it will apply its constitutional principles consistently.
An AU that operationalizes Article 4(h) strengthens African sovereignty by protecting African lives. An AU that hesitates risks eroding the moral authority that underpins its continental mandate.
In institutional law, credibility is cumulative. Each moment of clarity strengthens the rule. Each moment of silence weakens it.
Timothy Enongene
Guest Editor-in-Chief, The Independentistnews
