Is the African Charter on Democracy, Elections and Governance a check to the third term syndrome?

 

A former Nigerian statesman and Head of State, Dr Nnamdi Azikiwe once wrote that the cankerworm of leadership in Africa is tenacity in office, that is, the desire to  tightly hold on to office despite the odds. Several decades after, this observation is amazingly still very much topical in politics on the continent of Africa.  

 When U.S President Barrack Obama made his flash in the pan visit to Ghana in 2010, he said Africa does not need strong men, but rather strong institutions. Even though some opposed his view, insinuating it was a case of Uncle Sam dishing out democratic lessons to Africa, I agreed with him then, and I agree with him today. But the behaviour of many African leaders seems sadly to be averse to this pertinent democratic observation. Their attitude seems rather akin to the state of mind of the 18th century French Monarch, Louis XIV who is quoted to have  said “l’Etat, c’est moi,” (I am the state, a kind of embodiment of the state) and the posture of Louis XV who is also quoted to have said, “ après moi le deluge”( after me the flood). This is evidenced by the increasing desire of many African leaders to perpetuate their stay in power beyond the initial constitutional requirements.

There are two issues that have been bedevilling politics in some African countries in the last half of a decade.  The two are inextricably linked. The upsurge of constitutional revisions and the lifting of term limitations to invariably allow incumbent Heads of State to seek a third or multiples term in office. And, this has sparked much debate again about the future of democracy on the continent.  Yet Africa has come a long way.

After the so-called wind of change that blew across Africa in the 90s, more than half of African countries introduced the two term limit in their constitutions between 1990 and 1996.  The term limitation in many cases came as an historic political compromise, finding a kind of a common ground between the exigencies of the radicals or progressives who moved for the jettisoning of the ancient regimes right here and now and the reactionaries or conservatives, who, though having lost in the overall balance of power, had still conserved some power of resilience that could help them weather the political storm, at least for the time being. This was  part of what some authors have called a “democracy package” deal that included freedom of expression, the press and multi party elections. The term limitation was meant to scuttle the practice of life presidency that was en vogue in the quasi-totality of African states.  In the new constitutions that ensued, the President of the Republic was not allowed to go beyond the two terms that were constitutionally allowed.

 Contemporary practice in many African countries has shown that that the embattled sitting regimes, having gained in confidence and having succeeded in reversing the balance of power in their favour through a tactic of wear and tear of  the opposition, have become very uncomfortable with the idea of a term limitation and have or are taking steps to revise their constitutions so as to erase the mention of a term limitation. The arguments for or against this dynamic are not part of the province of this article. However, In the face of these developments, many legal scholars have argued that the constitutional revisions (I) and the lifting of term limitations (II) are illegal as per the African Charter on Democracy, Elections and Governance. With a constitutional referendum in Congo (Brazzaville) and the earlier parliamentary change of the constitution in Cameroon, with the clear and stated objective  of proscribing the term limitation, some of these analysts have posited that the Charter is a legal obstacle against such constitutional changes.  The brief of this article, therefore, is to examine the legal veracity of these claims vis-à-vis the Charter’s provisions. Before I proceed to handle both arms of the contention seriatim; it appears germane to briefly retrace the provenance of the African Charter.

This Charter was part of the stated emphasis of the African Union to promote democracy and good governance on the continent. It was adopted by the 8th ordinary session of the African Union Assembly on January 30, 2007. Article 48 of the Charter stipulates that “the Charter shall enter into force thirty (30) days after the deposit of fifteen (15) instruments of ratification”. On January 16, 2012, Cameroon deposited its instruments of ratification with the chairperson of the A.U commission, becoming the 15th state to ratify the Democracy Charter, per its terms. The Charter thus entered into force on February 15, 2012, 30 days after its ratification by the 15th state.  This is now the instrument that guides African countries in terms of minimum democratic standards including the setting up of independent electoral commissions and the transparent conduct of elections. Now, what does the Charter say about the two arms of the contention evoked earlier? We shall examine each in turn.

The charter and constitutional revisions:

Does the Charter proscribe the revision of constitutions? With regard to this query, the relevant provision of the Charter is article 10. It stipulates in paragraph 1 that “state parties shall entrench the principle of the supremacy of the constitution…”. This in fact, is nothing new. It is simply a restatement of a constitutional law principle well received in the practice of most democratic states. The constitution is usually described as the grundnorm , the basic law of the land, from where all other legal norms derive their legitimacy. The supremacy of the constitution is a vital organ to the enthronement and sustenance of democracy, because among other things, it establishes a clear separation of powers, which is necessary for a viable democracy where there ought to be checks and balances. The constitution is at the apex in the hierarchy of legal norms in the country. In this context, the constitution is supreme and its provisions shall have binding force on all authorities, and if any other law is inconsistent with the provisions of the constitution, the constitution, shall, ceteris paribus, prevail and that other law shall to the extent of the inconsistency be void. That is the principle known as the unconstitutionality of laws.

However, as supreme as the constitution is, it sometimes lends itself to a process of revision, the manner of which depends on the particular provisions of a country’s constitution. In this regard, the Charter, which is a treaty provision and hence directly applicable, upon ratification, within the municipal (domestic) law space, stipulates in paragraph 2 of its article 10 that: “state parties shall ensure that the process of amendment of or revision of their constitutions reposes on national consensus, obtained if need be, through referendum”.  The condition that this instrument gives for a constitutional revision or amendment is that any such action should “repose on national consensus”. Even though the Charter does not specifically define what it means by consensus, it would in this context mean a widespread agreement within the political class in the country. However, the instrument identifies one of the ways of reaching such a consensus. In the wordings of the provision, this is through a referendum. Therefore, any constitutional revision or amendment that is obtained by referendum would have been by consensus. But this proviso is by no means exhaustive. This simply means that the same consensus could be obtained by other means of revision or amendment. This could also include using parliament to bring about the desired constitutional change. It suffices for the political class to agree broadly on the mudus operandi,and this would have passed the test or yardstick of the Democracy Charter. That was the procedure adopted in Cameroon in 2008. But could that procedure be said to have been consensual? It is difficult to answer in the affirmative.

It is true that on the continent, many will disfavour the use of parliaments to effect such changes. The argument is generally that parliaments have no real authority and are always willing to rubber stamp whatever legislative proposal that emanates from the executive arm of government. In as much as this claim could be proven to be true in certain cases, the totality of evidence does not point to a systematic trend across the continent. It all boils down to the level of political independence exercised by members of parliament and their willingness to legislate taking into consideration the general mood of the citizenry at the time.  In Cameroon, for example, President Paul Biya successfully used the National Assembly to lift the term limitation in the constitution in 2008. His peers in other countries did not have it that easy, in trying to use the same medium, to effect the change. Former President Sam Nujoma of Namibia and President Obasanjo of Nigeria proposed amendments to extend their tenure in office to a third term, but their efforts were frustrated by their respective parliaments. Similarly, in 2003 President Muluzi of Malawi had his proposal to amend the constitution to allow him to run for another term rejected by parliament.

Even the use of referendums is not a guarantee that there will be vox populi, vox dei, even though in this system there is a greater presumption of national consensus and popular will.  Referendums are just like any other election that is conducted in the country and if the conditions for a free and transparent election are not met, the incumbent leader who wins all other elections will still be able to have his way. My opinion in this issue is that the political class in the country should adopt a common approach and take responsibility for it and not for one powerful group, usually those in power, to impose their point of view on the others.

The Charter and the removal of term limits

This is arguably the most contentious part of the two-pronged debate. This is partly because constitutional changes that remove the term limits do not only run the risk of securing time without stint  in power for some leaders, but it also negates the spirit of consensus that was at the origin of that development. That is why many political and legal analysts have turned towards the African Charter for a legal umbrella to boost their contention that such removal is illegal in view of the relevant international law, the Charter, to wit. Such commentators hold up the Charter as specifically targeting those leaders who hold on to power through the elimination of term limitations, which is the primary goal of these constitutional changes. On the basis of this, some have even argued that the 2012 Charter is a source of law for the contention that international law is against term limitation removal in Africa. Tempting as this interpretation might be, is there enough legal ground to sustain such a claim? Is this a sound legal reasoning that naturally flows from the substance of the instrument? My submission is that such claims are specious and at best inconclusive.

Let us examine the law. The relevant provisions on this subject are contained in article 23 of the Charter. The entire article that has five paragraphs, actually enumerates instances of accessing or maintaining power that the Charter will consider as constituting “unconstitutional change of government” and thus necessitating “appropriate sanctions”from   the African Union.

Of the five paragraphs, it is only the fifth that is actually relevant to the purposes of this paper. It stipulates that: “any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government”, shall constitute an unconstitutional change of government. This is the provision that some analysts have portrayed as a source of law for the contention that, constitutional revision to remove term limits is illegal. But is that really what that treaty provision says? Can the removal of term limits constitute an infringement on the principles of democratic change of government? Some analysts think so. It is possible in the sense that such a situation can perpetuate the stay of an incumbent in power. But it is not in every case. Before looking at the other cases, let me point out that if the treaty wanted to punish cases of constitutional  revisions to amputate the term limits it would have had enoug culprits to do so. though cameroon changed its constitution in 2008 before it ratified the said treaty, therefore technically being out of the claws of the treaty, Congo(Brazzaville) would have been punished if that was the intention of the drafters of the treaty.   In some countries such as the United Kingdom, there are no term limits, yet there is a regular democratic change of government, even within the same political party. The internal mechanisms for the functioning of such democracies make these changes possible.

 It could be readily conceded that in the context of Africa, where large populations usually tend to align with those in power, the absence of term limits might make it difficult to have a frequent leadership turnover, which is what is sought by proponents of the African Charter on Democracy. But if the Charter wanted to avoid the removal of term limitations it would have said so specifically and unequivocally.   The fact that this debate is taking place is proof that the provisions of the treaty are not very clear on that point and cannot be relied upon as a source of law.

 In order to understand this very well, it is necessary to go back to the initial draft of the treaty. The wordings of the final Treaty provision are broader than the language used in the draft treaty, which referred specifically to changes designed to “prolong the tenure of office of the incumbent”. It is clear that by broadening this provision, the drafters deliberately wanted to dilute or water down its potency because “the draft provisions had clearly   targeted attempts to lift term limitations”. By taking a broader perspective, and based on the forgone analysis, it would be safe, in my opinion, to conclude that  the drafters did not want that specific limitation to emerge, at least in a clear manner. Left as it is, that provision becomes a polysemy.

Given the political mentality in much of Africa where the interpretation of such highly political instruments inclines more towards a self-serving posture than capturing the overall interest of the citizenry, the existence of that article can be abused in that manipulative governments can easily circumvent it, without appearing as if they are breaking the law. This has already happened in some African countries like Congo (Brazzaville) and Chad. To avoid this situation, the Charter should have in unequivocal and unambiguous terms specifically referred to the types of constitutional amendments that would be regarded as violations of democratic principles such as amendments to extend the presidential term of office. In view of the difficulty that many African Heads of State have leaving office when their term is due, the Charter should have made specific reference to this issue if it intended to achieve that purpose. By failing to do so, the Charter has been weakened to that extent.

All in all, it is clear from the forgone analysis that though presidential limits are essential in helping to ensure democracy and ease peaceful political transition, the African Charter on Democracy, Elections and governance, does not, both in its letter and  spirit, proscribe constitutional revisions. Furthermore, it does not unequivocally outlaw revisions that tend to remove term limits. On this note, the Charter cannot be considered as an established source of international law that makes tenacity in office illegal, and as such cannot be a check on the third term syndrome.  If that were one of the aims of the African Charter on Democracy, then it has failed in that regard. The Charter needs to be revised to that extent.

 

By ASHU NYENTY,  INTERNATIONAL JURIST /SENIOR  Political Affairs Editor-CRTV.

Widgetized Section

Go to Admin » appearance » Widgets » and move a widget into Advertise Widget Zone