4 June 2014

West Africa: What Constitutional Review Processes in West Africa Tell Us

analysis

A significant moment has arrived in West Africa that cannot be overlooked. At least six countries in the sub-region are currently undergoing constitutional review processes, including Benin, Ghana, Liberia, Nigeria, Senegal and Sierra Leone.

While some have reached advanced stages in the process, others have only recently started or are at an intermediate stage. Each country has also adopted a different structure, with some consisting of a small committee of Presidential appointees and others consisting of 80-plus member committees that are supposed to be representative of various stakeholders. Even with the varying structures, progress and challenges in each country, these review processes present opportunities to derive lessons about democratic governance in West Africa.

Does the wave of constitutional reform signal that we have reached a new era of recognition and acceptance of democratic processes in West Africa? Or does it merely reflect a trend of governments initiating these processes to surreptitiously attempt to subvert the democratic process through a “legitimate”, widely-accepted means? The answer seems to lie somewhere in between.

Manipulation of Constitutional Review Processes for Political Gains

There is a very real potential for the ongoing review processes to be instrumentalized in ways that erode democratic principles. In particular, these reviews could be used to weaken other constitutionally constituted branches of government that form the architecture for separation of powers or legally constituted institutions that provide critical checks on state power.

Completely diluting the powers of the legislature and judiciary are no less subversive than a coup d'etat. As such, attempts like these to manipulate constitutional review processes directly invoke sanctions by the African Union. Under Article 23(5) of the African Charter on Democracy, Elections and Governance (ACDEG), amendment or revision of the constitution or legal instruments in a way that infringes on the principles of democratic change of government constitutes an “illegal means of accessing or maintaining power” and is subject to sanctions on the offending state.

West African states are guided by these legal maxims not only at the continental level, but also at the sub-regional level. Often neglected in the discourse of states' obligations are the legal instruments that bind members of the Economic Community of West African States (ECOWAS), and which further reinforce the democratic values they have pledged to uphold through continental and national laws.

One such instrument is the Protocol on Democracy and Good Governance, Supplementary to the ECOWAS Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security. Among the constitutional maxims declared in Article 1 of the Protocol, as being shared by all ECOWAS Member States,is separation of powers within a government and “zero tolerance for power obtained or maintained by unconstitutional means”.

One means of maintaining power is by extending presidential term limits.

This has become a pervasive issue in the West African constitutional reviews. The recent “After u, na u” campaign in Sierra Leone, for example, is encouraging President Ernest Bai Koroma to run for a third term in spite of the fact that Sierra Leone's 1991 Constitution limits the presidential tenure of office to two five-year terms.Given that this campaign is being waged concurrently with the constitutional review, questions now hang in the air as to whether the review process could be used to push forward a presidential agenda that includes seeking a third term.

Senegal's case shows the potential for the Executive to void or disregard a constitutional review committee's recommendations, particularly when those recommendations are progressive, such as allowing independent candidates to run for office in all elections from presidential to local level. Considering that a number of the progressive recommendations proposed by the 19-member committee comprised of high-profile individuals reflect the campaign promises of Senegalese President Macky Sall, it seems disingenuous, at best, if Sall were to disregard the Committee's recommendations.

The Role of the Legislature

In this regard, the constitutional reviews in Nigeria and Benin illustrate the important role of the legislature in the process. When the Parliament of Benin refused to pass a bill that included only 27 of the 90 constitutional amendments proposed by two review commissions, we witnessed application of the necessary checks that a legislature can insert into the process. The 27 provisions selected by the government for inclusion in the draft bill would have further consolidated the Executive's power. This further underscores why separation of powers is a fundamental democratic principle that should be maintained in the constitutions that are under review.

However, there is a risk that party politics will derail the constitutional review processes in the legislature. In Nigeria, for instance, a Senate review committee threatens to omit certain provisions proposed by the concurrent House of Representatives' committee, such as the independence of local government and inclusion of education and housing as constitutional rights. Parliamentarians must understand that the constitutional review process is not meant to be an avenue for further entrenching certain policies or firmly establishing a political divide.

A constitution is meant to set forth the fundamental tenets of governance in a state and the rights belonging to its citizens. This purpose may have become lost in the countless superfluous provisions that have been proposed and the politicking characterizing many of the constitutional reviews in the sub-region.

For instance, a number of the issues that are seeking to be legislated through the constitutional review process, such as a national dress code in Liberia or whether political parties in Senegal can receive public funding, would be better left for complementary legislation. Rather, the nature and purpose of the process is to agree on common basic principles of government and fundamental rights that will benefit all citizens regardless of party affiliation. Insistence on inclusion of extraneous provisions or those that reflect a narrow political ideology will not achieve the goals of the review process and likely only result in stalemates.

Constitutions are Meant to Reflect the Will of the People

An underlying issue that threatens the legitimacy of constitutional reviews in the sub-region is whether these processes have buy-in from the populace. For instance, the two-year mandate of Liberia's constitutional review committee has almost expired, yet there has been only cursory consultation with citizens. Providing suggestion boxes for the public to give its input without providing any substantive civic education on the constitutional review process merely pays lip service to the idea of inclusivity.

In Sierra Leone, the speedy passage of legislation to amend the constitutional provision on the qualifications for Speaker of Parliament outside of the constitutional review process and without popular consultation has raised additional questions about the genuineness of the review process and possible manipulation of the composition of the Parliament to both further a certain political agenda and weaken a branch of government.

In contrast, seeking the consent of the governed through referendum for constitutional amendments could be an affirmation by the people that what is contained in this cardinal document represents the ideals of the society, but only if there is adequate civic education to ensure widespread and informed citizen participation in the referendum.

In Ghana, for example, constitutional provisions concerning high offices, such as the President and Vice-President, are subject to referendum. Ghana also presents a positive example of inclusion and transparency through a broad public consultation process, involving even the Ghanaian diaspora, and the government's issuing of a white paper based on the recommendations of the constitutional review commission.

While governments and the review committees have the bulk of the responsibility for making the processes transparent and participatory, the onus of ensuring the credibility of the reviews is not only on the government. Civil society organizations also have a key role to play by monitoring the review processes and bringing attention to any efforts to manipulate them for political gain, scrutinizing the reports and draft constitutions that result from these reviews, and adding their voices to public debates and advocacy on key issues being considered for amendment or addition.

Since these constitutional reviews are still ongoing, perhaps it is too early to draw firm conclusions about what they teach us about the state of political governance in the sub-region.

However, one thing is clear. If our leaders truly espouse the democratic ideals that they pledged to uphold when sworn into office or when ratifying the ACDEG or ECOWAS Protocol, then the constitutional review processes in West Africa will reflect their understanding that power comes not from an individual's stranglehold on it, but instead from the will of the people who elected them to uphold those democratic values.

Eleanor Thompson is OSIWA's Advocacy Officer. Follow Eleanor on Twitter @EleanorThomps

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