These “constitutional coups” are a way to cement presidential power — and do so with the appearance of legality. While regional bodies such as the Economic Community of West African States (ECOWAS) and the African Union (AU) are facing growing pressures to prevent third terms, member states remain strongly opposed to formal bans.
Citizens want term limits — even if governments don’t.
Governments backed up these constitutional changes with force on several occasions, along with human rights abuses. In Congo, the January 2014 demonstrations followed President Joseph Kabila’s attempt to modify the electoral laws and to stay in power beyond the two terms outlined in the country’s constitution. Police forces cracked down on demonstrators, leaving 27 dead.
After the protests, the Congolese parliament eventually removed the controversial article that would have allowed President Kabila to remain in power beyond December this year, the end of his second term. Kabila assumed the presidency in 2001 at the age of 29 after his father was assassinated. After the constitution was amended to allow presidential candidates under age 35, he was reelected in 2006, and again in 2011. The presidential elections scheduled for 2016 are likely to be postponed indefinitely, posing risks for further instability in the country.
In 2015, President Pierre Nkurunziza of Burundi won reelection to a third term, despite a constitutional two-term limit. Protesters clashed with government forces, while opposition candidates boycotted the vote. Nkurunziza claimed the country’s legislature had elected him to his first term as president, making him eligible to run for two additional terms.
Legal countermeasures are underway in several countries.
But some countries are fighting this trend, using the very same weapons — constitutional referendums. In 2015, citizens of the Central African Republic overwhelmingly backed a constitutional referendum aimed at ending nearly three years of political instability. The amended constitution limits the power of the president and increases that of the parliament — and establishes a Special Criminal Court to try war crimes and crimes against humanity committed in the country since 2003.
Other African countries such as Mali and Benin are negotiating new constitutions. Mali will soon revise its constitution to incorporate provisions of the 2015 Algiers Peace Agreement signed between the government and former rebel groups. Since July this year, a group of experts has been reviewing the peace agreement to figure out which clauses to integrate into the Malian constitution.
In Benin, newly elected President Patrice Talon is suggesting that the country’s constitution be revised to limit presidential terms to only one. However, in October 2011, the constitutional court of Benin ruled that presidential term limits were unchangeable. Therefore, Talon’s constitutional reform project might be moot.
These referendums are good for democratic consolidation, the process by which new democracies establish strong foundations to prevent a slide back to autocratic rule. They are also crucial for good governance, long-term stability and rule of law.
Ivory Coast’s mixed constitutional results
In July, Ivory Coast’s parliament voted overwhelmingly in favor of holding a referendum on a new constitution. A draft constitution, with a nationwide vote, is expected by the end of this year. Last November, after winning a second term in office, President Alassane Ouattara declared during his acceptance speech that “the [constitutional] modifications will take into account [Ivory Coast’s] history, culture and the values that [Ivorians] want to promote for a new Ivory Coast.”
Voters approved the last Ivorian constitution in 2000, after a 1999 military coup by General Robert Guéi. The 2000 constitution introduced Article 35, which requires presidential candidates to prove that both parents are natural-born Ivorians. Article 35 also states that presidential candidates must have never claimed citizenship in another country.
Since the 1930s, the Ivory Coast has been the first destination for West African migrants — under Article 35, an estimated 30 percent of the country’s 14 million inhabitants would be considered non-Ivorians.
This nationality clause contributed to the country’s bloodiest civil war, from 2010 to 2011, and to a decade of political and security crises. The concept of “Ivoirité” effectively excluded key politicians who did not meet the stiff nationality requirements, including current President Ouattara, who served as prime minister and was an aspiring presidential candidate. Former president Henri Konan Bédié accused Outtara of being of Burkinabé descent, as his parents came from neighboring Burkina Faso. Ouattara was able to run for president after a 2005 peace deal allowed him to obtain an Ivorian citizenship certificate.
The impending constitutional referendum would remove the nationality clause, which would reflect Ivory Coast’s multiethnic population and promote the inclusion of all Ivorians, regardless of their origins, in political affairs. But the referendum also includes a number of controversial reforms, such as the creation of a new senate body, with one-third of the senators appointed by the president. In addition, the referendum would create a vice-president position — a move some in the country perceive as a convenient and quiet move by President Ouattara to pick a successor.
Is it too easy to change constitutions?
According to constitutional law scholar Charles Manga Fombad, “a major cause of political and constitutional instability in post-independence Africa was the ease with which political leaders subverted constitutionalism by arbitrarily changing constitutions to suit their political agendas.” Paradoxically, voting on constitutional changes can be one of the most transparent and democratic ways to further a culture of consultation — and strengthen democratic political systems.
Recent patterns in African constitutional referendums suggest that as much as military coups are becoming passe, constitutional coups soon might also become outdated. In sub-Saharan Africa, constitutions in many countries are slowly becoming binding documents that limit presidential powers — and boost democracy and the rule of law.