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Despite the attempts at a news blackout in Libya, there are increasingly disturbing reports coming out of that country on the use of African mercenaries by the Libyan government. According to these reports, mercenaries are allegedly used to crack down on demonstrators calling for democratic change in Libya. If such reports are indeed true, the use of these mercenaries is not only a strategic mistake for Colonel Muammar Gaddafi, but is also a serious indictment against the African Union (AU) which has been dragging its feet in ensuring the effective implementation of the 1977 OAU/AU Convention on the Elimination of Mercenarism in Africa (Anti-Mercenary Convention). The AU has once again dismally failed to address the over three-decades long problem of mercenaries on the continent.
Apart from Libya, it is also being said that Liberian mercenaries are streaming into Ivory Coast to aid Laurent Gbagbo`s regime in the current stand-off with his rival Alassane Ouattara. In 2009, there was also a report of South African mercenariesbeing recruited to reinstate deposed Malagasy President Marc Ravalomanana. Perhaps the most notorious yet unsuccessful use of mercenaries in Africa was the failed Equatorial Guinea coup d`état attempt in 2004, also known as the Wonga coup, which involved British mercenary Simon Mann and South African Nick du Toit. The involvement of the now defunct Executive Outcomes in the mercenary business in Angola can also not be easily forgotten. Founded by Eeben Barlow in 1989, Executive Outcomes fought on behalf of the Angolan government against UNITA after the latter refused to accept the election results in 1992.
The involvement of mercenaries in Africa’s deadly conflicts begs the question: what is the use of the 34 year-old Anti-Mercenary Convention in the elimination of mercenarism in Africa? Also, what concrete steps (if any) has the AU taken since its establishment in ensuring the implementation of the Anti-Mercenary Convention? And finally, should African citizens have faith in the AU to ensure that the continent will be free from the scourge of mercenaries?
It must be recalled that the idea behind the adoption of the Anti-Mercenary Convention in 1977 was to address the serious threat mercenaries posed to the independence, sovereignty, territorial integrity and harmonious development of African States. In contemporary times, it is apparent that some African leaders are making use of mercenaries in order to cling to power in violation of democratic principles, which the AU professes to work towards promoting, at least on paper.
Angola ratified the Anti-Mercenary Convention on 6 June 2007 and Libya ratified the Anti-Mercenary Convention on 25 January 2005. Interestingly, Côte d`Ivoire as well as South Africa never bothered to ratify the Anti-Mercenary Convention. Despite the fact that this instrument does not bind South Africa, there is a legal framework that has been put in place for the prohibition of mercenary activities. This is in the form of the yet-to-be enforced Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Act 27 of 2006. Libya, as a State Party to the Anti-Mercenary Convention, has an obligation to prevent foreigners on its territory from engaging in mercenary activities either on behalf of the State or any other person. If the allegations in Libya are indeed true, then it may be concluded that Libya has failed in its international obligations as regards to the Anti-Mercenary Convention.
Since African leaders have in the past been identified as the alleged consumers of the “mercenary industry” in their quest for unconstitutionally staying in power, it could be argued that they are in fact committing the crime of mercenarism by extension. Given the manner in which the African leaders have protected each other in the past, the question is whether there would be any African State willing to prosecute an African leader for the crime of mercenarism. Based on the fact that African leaders continue to use mercenaries without any legal consequences in Africa points to the conclusion that the Anti-Mercenary Convention is currently of no use. The time for the revision of the now archaic 1977 instrument is long overdue. Not only is the Anti-Mercenary Convention toothless in respect of those who engage in mercenary activities, including those who hire them, but it also fails to address the challenges of the “new forms of mercenarism”, that is, the so-called private military and security companies (PMSCs). Some of these PMSCs harbour mercenary bandits and as such there is no guarantee that the problem of mercenarism in Africa will be eliminated particularly if the Anti-Mercenary Convention is not extensively revised.
Since its establishment, the AU has arguably been paying lip service to the question of mercenarism. While the AU is quick to condemn mercenarism in the strongest possible terms, this cannot be as effective as revising the outdated legal instrument that was aimed at eliminating mercenarism in Africa. From the look of things African citizens will only arguably have faith in the AU once the issue of mercenarism is comprehensively addressed through an effective legal instrument that will be put in place within the current legal framework.
The AU has a long way to go in the promotion of democratic principles and institutions, popular participation and good governance. This journey will be even more difficult if African leaders are allowed to use mercenaries as a means of clinging to power. In 2011 alone, there will be close to twenty presidential elections and the AU needs to guard against unconstitutional changes of governments, which sometimes result from the use of mercenaries. The AU must be wary of those African leaders who, through the use of mercenaries, will in 2011 and beyond unconstitutionally cling to power in total disregard of the most revered democratisation process that Africa desperately longs for.
Written by Sabelo Gumedze, Senior Researcher, Security Sector Governance Programme