The army’s constitutional ordinances: An attempt at theoretical reflection on a complex legal category

Long ignored in the analysis of African constitutionalism, military ordinances have recently come to the fore following the wave of coups d’état across the continent. Between 2021 and 2023, there have been at least seven coups d’état in Africa: Chad on April 21, 2021; Mali, which faced two coups in nine months, one in August 2020 and another in May 2021; Guinea on September 5, 2021; Sudan on October 25, 2021; Burkina Faso on January 24, 2022; Niger on July 26, 2023; and Gabon on August 30, 2023. This situation marks the return of the military to power and the restoration of military regimes in Africa. By forcing its way into power, the military causes a breakdown in constitutional legality. This leads to use of military ordinances as the new constitutional legality of African States facing crises or in transition. As a matter of fact, there is a dual constitutional order within African States: a normal constitutional order in peacetime and a constitutional order of crisis or exception in the context of coups d’état, typically based on constitutional ordinances issued by the army. This article seeks to provide a rigorous legal analysis of this complex legal category. In terms of the theoretical framework, it draws on Carl Schmitt’s decisionism, legal neorealism, history, and constitutional practices in African States.