8 February 2017

Africa Faces a New Threat to Democracy - the 'Constitutional Coup'

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(File photo).
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Conventional wisdom tells us that good political societies are built on the principles of constitutionalism. This entails upholding the rule of law and separation of powers. This is to ensure an even distribution of power where a society is "built on principles of law, not men".

In the 1990s many African states reinvented their constitutions to build good political societies. They moved away from one-party authoritarian states to embrace a constitutional political order and representative democracy. They also enacted two-term presidential limits. This was, as Charles Fombad tells us

a clear recognition of the need for radical changes ... In some cases, it meant a total break with a dreadful past ... but in most cases it meant recognising that a constitutional framework built around the one party system that had bred authoritarian and dictatorial rule was a recipe for political instability and economic decline.

But the limitations on presidential terms have not entirely quashed a culture of entitlement to rule. Glimpses of this culture persist.

This is evident in what is now referred to as the "third term tragedy" or the "constitutional coup". This is when African presidents extend their tenure in office, effectively becoming "president for life", changing constitutions to do so. Increasingly, this is met with civic resistance.

Burundi, Rwanda, the Congo and Burkina Faso are examples of where this has happened.

Roots of constitutionalism

Constitutionalism found its roots in social contract theory, which was penned by John Locke among others.

The basic argument is that humans have inalienable and natural rights to life, freedom and estate. And for us to exercise these rights, we create a political society of consent where constitutional principles reign supreme. Thus, as Manzoor Elahi reminds us:

According to Locke, the purpose of the government and law is to uphold and protect the natural rights of men. So long as the government fulfils this purpose, the laws given by it are valid and binding, but when it ceases to fulfil it, then the laws would not have validity and the government can be thrown out of power.

This interpretation of the purpose of government also informs the principles of good governance. These are transparency, responsibility, accountability, participation, responsiveness, and respecting the rule of law. The social contract between those who govern and those who are governed is founded on this rights-based approach to governance. This means that leaders govern at the pleasure of the people, and do not rule with sovereign license at the cost of constitutional rules. The well-being and rights of the people must be the central concern of those who govern.

Good governance entails playing by the rules. It requires accepting electoral defeat if the people willed it so.

Cases of constitutional coups

There have been some classic examples of "constitutional coups" in recent years. These include:

  • Burundi, where President Pierre Nkurunziza's machinations for a third term in 2015 led to political instability and a failed military coup. He subsequently emerged victorious in an election marred by violence and intimidation in 2015.
  • Congo: In 2015, President Denis Sassou Nguesso claimed that the people wanted him to extend his 32-year stay in power and announced a referendum to change the constitution to allow him to contest the election. This was met with mass protest, with people proclaiming that the "Congo does not belong to Nguesso". In 2016 he won at the polls amid tight security measures and a communications black out.
  • Burkina Faso's Blaise Compaoré was forced to flee following widespread protests against his bid to extend his 27-year rule in 2014.
  • Rwanda's President Paul Kagame will run for a third term this year. This after the constitutional was amended to allow him another term, following a referendum to that effect. He may be in power until 2034.

In 2015 West African states took a progressive step with a proposal to ban "constitutional coups" by limiting presidents to only two terms. But the idea was abandoned as some states in the region did not support it. This happened despite the fact that research shows Africa's citizens largely support limiting presidential terms.

The African Union (AU) committed to a democratic social contract with Agenda 2063. There is a formal promise to abide by the will of the people and to respect the rule of law. The problem rather, as Charles Fombad concludes, is that

In many countries, the problems were not caused by the absence of constitutions. Rather it was the ease with which African leaders had rendered constitutions dysfunctional by regularly ignoring their provisions or amending them when it suited their convenience.

Some highlight the lack of effective opposition in Africa. But the problem also relates to views about governance and the rules. It seems the rules are made to the broken.

The AU has to be commended for taking a firm stance against regime change through military coup. It has suspended countries for "unconstitutional regime change". But it has not been as effective in its opposition to dealing with the problem of extended presidential terms. This could be due to the sovereignty principle, which makes African states reluctant to interfere in others' affairs.

But the problem of leaders clinging to power is only one manifestation of a lack of respect for constitutional rules in Africa. Others include the fact that opposition political parties are often harassed and their leaders locked up. They are also painted as illegitimate proxies for harmful foreign "third forces" seeking regime change.

Gambia shows democracy advancing, but...

Many have applauded the Economic Community of West Africa (Ecowas) for the role it played ensuring a peaceful transition after the Gambian election.

After President Yahya Jammeh rejected his loss, citing "foreign interference", it looked like a replay of a now all-too-familiar script, wherein a leader clings on to power against the popular will.

But regional leaders had other ideas. With a not-so gentle push from them, Jammeh eventually accepted the electoral outcome and vacated the plush presidential chair.

Yes, we may see the Gambian story as an advancement for democracy in Africa. And yes, there are many lessons the Southern African Development Community (SADC) can learn from Ecowas in dealing decisively with despots.

But the temporary Gambian crisis also points to a deeper governance problem in Africa: leadership attitudes towards "governance". Many African leaders have yet to appreciate that constitutional rules matter. And while military coups are increasingly "out of fashion", people on the continent need to pay attention to the "softer" methods used to entrench the "president-for-life syndrome" which threaten the continent's democratic gains.

More importantly, given a commitment to good governance through Agenda 2063, African leaders must do more than show respect for the rules. They must also realise that they need to govern - not rule - at the pleasure of the people.

This would speak to building a culture of accountability and good governance through a change in mindset - instead of seeing their job as ruling the people leaders would see their role as governing the people. It would also entail vacating political office when your time is up.

Disclosure statement: Joleen Steyn Kotze receives funding from NRF and Konrad Adenauer Stiftung

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