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In many states weakened by corruption, institutional failure and the exhaustion of the social pact, coups d'état appear as brutal breaks but often applauded. Acclaimed for expelling discredited regimes, the putschists then claim legitimacy based on popular membership and elections that they organize themselves.
But what is this legitimacy worth when power finds its source in the very violation of the constitutional norm?
What happens to law when it is no longer the regulatory framework for the conquest of power, but its derivative product?
Through a thorough legal analysis, let us explore the fundamental tension between legality, legitimacy and justice in regimes born of force, highlighting the normative fragility that structures many African political transitions.
Power conquered by weapons: the original injury of the legal order
When a political power is torn away by the force of arms, the state suffers what might be called a « original injury ». The breakup is not only political, it is legal. The coup d'état is not just to overthrow individuals; he overturns the the very source of validity of the lawthe Constitution. In any rule of law, however, the Constitution is the supreme norm that organizes the conquest, exercise and limitation of power. Its deliberate violation by force means that, technically, power derived from weapons is born in absolute illegality.
It is a central point: whatever the corruption of the overthrown regime, regardless of social fatigue or popular anger, the coup d'état remains, in legal theory, an unconstitutional act. It violates the normal devolution procedure. This finding is valid even when putschists present themselves as « liberators » or « restorers of democracy ». The end, though noble, does not retroact on the means to purify it: the de facto power is from the outset in contradiction with the law before it.
This initial hiatus between power and Constitutional order All subsequent reflection on the legitimacy, legality and value of law in regimes born of a coup d'état, especially in African contexts where these phenomena are repeated.
Social legitimacy versus constitutional legality
The first gesture of the putschists, after the takeover, is often to invoke the will of the people. The images of crowds in jubilation, the scenes of jubilation in the streets, the messages of support on social networks serve to build a story: that of an army responding to a silent call, of a people finally liberated from a predatory regime.
This scene is common: a civil power, worn out by decades of corruption, clientelism and confiscation of public resources, ends up losing credibility in the eyes of citizens. The military then appears to be « Supreme arbitrators », emerging to sever an insoluble political node. The coup d'état is then adorned with immediate popular legitimacy, that of collective emotion, of exasperation transformed into acclamation.
But that legitimacy is of nature. sociological and political, not legal. The science of law, rigorous in essence, clearly distinguishes legality (compliance with standards) of the social legitimacy (more or less massive population membership). A regime born of a coup can be applauded, supported, celebrated; he remains nevertheless born of a violation of the constitutional norm.
This tension is at the heart of the putsch regimes: they carry a additional subjective legitimacythe satisfaction of having driven out an order considered unjust, but of a objective legal deficit, since they did not follow the formal procedures of devolution of power.
The recomposition of the normative order: from de facto power to the power of law
However, history does not stop at the moment of the coup. Once the power is consolidated, the putschists seek to transform their de facto domination into rule of law. There is a well-known phenomenon of public lawyers: Recomposition of the normative order around the new power center.
In concrete terms, this involves several steps:
– suspension, repeal or revision of the existing Constitution;
– adoption of « transition charters »provisional basic laws;
– reorganization of institutions (government, transitional parliament, constitutional council remodelled or put in brackets, etc.).
In the Kelsenian theory, once a new power manages to impose itself on a lasting basis, i.e. to exercise effective and uncontested control of territory and institutions, its normative order ends, in practice, in being recognised as « Legal system » in force. The decrees, orders and decisions emanating from this new power acquire a formal validity within the system it establishes.
In other words, the law never completely disappears; it realigns. The hierarchy of norms is reconfigured around victorious power. But this silent shift, from de facto power to legal power, does not forget the original illegality. It creates a legal order that works, but whose source is flawed: a right born of a rupture, not constitutional continuity.
Election test: Transmutation of force into a vote?
In order to further legitimise their position, the leaders of a coup d'état frequently resort to a decisive instrument: elections. After a period of transition, more or less long, they organize a presidential and/or legislative election, in which they participate directly or by persons interposed.
Formally, the argument is powerful: an election, even in a post-putschist context, remains a legal mechanism for designating power. If the military leader is elected, he will then obtain a mandate in accordance with the positive law in force. He appears to be a legal president and legitimized by universal suffrage.
But the question is more subtle:
– Who set the rules of the electoral game?
– What is the real independence of the body responsible for organising elections?
– What political pluralism is really tolerated?
– What room for manoeuvre do opponents have in a system already locked by the military?
If the elections are held in a context of close control of the media, neutralisation of major opponents, rewriting of texts in favour of the existing power, the electoral legitimacy becomes a simple dressing. Power, born by force, gives itself the appearance of the general will, but without offering all guarantees of free and fair suffrage.
From a legal point of view, it can be admitted that the election, even if imperfect, confers on power a certain degree of renewed legality. From a substantial point of view, however, the question of democratic legitimacy remains open. It is not because a regime is adorned with elections that it automatically becomes a democratic regime in a strong sense. Universal suffrage in these configurations can be instrumentalized to sanctify the victory of weapons.
What happens to the right in a regime born of the coup d'état?
At the heart of our question lies a formidable question: what becomes of the right when power comes into being in its denial? The answer is to distinguish several levels.
On the Internal plan, the right changes function. In a State governed by the rule of law, the right is intended to a limit in power It organises the separation of powers, protects fundamental rights and supervises supervisory institutions.
In a regime resulting from a military breakdown, the right is often reconfigured to become an instrument of Power It is used to justify, protect and prolong the domination of the group that seized the State.
Transitional constitutions, ordinances, emergency laws, laws on state security are rarely designed to limit the power of putschists; They are essentially built to make it legally inexpugable. The hierarchy of norms remains, but it is inclined: the law ceases to be a bulwark to become a shield in the service of power in place.
On the symbolic level, the right loses in credibility. When the citizen finds that the most fundamental norm, the Constitution, has been violated without any justification other than force, his confidence in legal normativity is undermined. He understands that legality can be suspended when it suits the powerful, and reactivated to suppress the weak.
From there a dangerous culture arises: that of relativity of law, perceived not as an absolute, but as a malleable instrument according to the balance of forces.
Criminalization of opponents: internal legality against moral and international disability
This is the crucial question of political opponents, often prosecuted for « against State security », « plot », « attempt to destabilize » or « insurgency ». Are these incriminations, common in the de facto regimes, legally valid?
Within the system set up by the putschists, the answer is, formally, yes. The new power adopts criminal laws, security laws, exceptional provisions, and assigns them to courts, often military or exceptional, to try opponents. As long as this order holds, the sentences are Legal in the light of the positive law of this scheme. They are enforceable, impose real penalties and structure political life.
But if we look at another level of analysis, that of constitutional law betrayed by the coup d'état, that of international norms, or even that of the philosophy of law, these convictions seem very fragile. They are the product of a legal order installed by force, used to neutralize those who contest the very legitimacy of this order.
Under international human rights law, a sentence was handed down:
– by a court without independence;
– in non-adversarial proceedings;
– on the basis of very broad political offences aimed at punishing dissent;
has every chance of being considered as Arbitrary and contrary to fair trial standards. Internal legality is not enough to give him a universal normative validity. It can be said that these convictions have a technical validity within the regime, but one substantial disability where reference is made to a higher legal order; whether it is constitutional (the norm violated) or international (the commitments on fundamental rights).
In this sense, the value of these convictions is highly questionable: they are acts of power more than acts of justice.
The illusion of normalisation and the African paradox
Diets born of coups d'état in Africa often try, with varying degrees of success, to normalize : adoption of a new Constitution, organization of elections, recomposition of institutions, discourse on the rule of law. In fact, however, the memory of the original illegality remains, and it comes back whenever power uses force or law to crush its opponents.
The paradox is as follows: the more an arms regime seeks to claim to be Rule of lawThe more the contradiction between its illegal origin and its legalist discourse becomes visible.
The population can, at first, accept the coup d'état as a necessary evil to drive out a corrupt regime; But in the medium term, the repetition of these cycles, (civil power discredited, coup d'état hailed, prolonged transition, controlled elections, reconstitution of an authoritarian regime), ends up establishing a political culture where force prevails over law.
In this context, the question arises: « What happens to the law? », leads to a strict observation: the right survives, it works, it produces effects, but it has largely ceased to be the measurement of legitimacy. It is reduced to the role of authority's supporting language.
Legality, legitimacy, justice: lasting dissociation
In the end, a power seized by arms, even acclaimed by the population and subsequently re-elected by elections, never manages to completely erase its original fault. It can accumulate forms of legitimacy: popular, electoral, sometimes even international, but it remains marked by a birth in contradiction with the constitutional order.
The law, in these circumstances, does not disappear: it is reconfigured, instrumentalised and relativized.
Sentences for breach of State security, although legally pronounced within the normative order established by the putschists, have only legal value circumstantial. In essence, they lack the moral and universal dimension that is expected of justice in the name of the law and not in the service of power.
The great African dilemma, in this respect, is therefore not only political, it is deeply legal: as long as access to power remains open to force, the right will remain trapped in a permanent ambiguity between what it should be, the impartial rule that enshrines and limits, and what it is too often: the normative mask of a balance of forces.
