During the 3 November meeting of the African Union’s (AU’s) Peace and Security Council (PSC) on Burkina Faso, the main focus was whether recent events there amounted to unconstitutional seizure of power, and which measures should be taken.
The dramatic political developments in Burkina Faso were triggered by former president Blaise Compaoré’s political manoeuvring to run for a third term in office in the presidential elections slated for 2015.
Although Article 37 of the Constitution – which limits presidents to two terms in office – was introduced in 2000, it was only applied to Compaoré from the 2005 presidential election.
Compaoré’s government – assured of the majority backing needed in the National Assembly to remove the constitutional term limit – announced on 21 October that a constitutional amendment bill would be introduced. The announcement set off a wave of protests in various parts of the country, which presented an opportunity for early action. However, the AU failed to express concern or initiate proactive diplomatic intervention to prevent the situation from erupting into a crisis. It was only when the developments reached such a crisis level that the Economic Community of West African States (ECOWAS) and the AU reacted.
Unlike similar instances, the AU did not condemn the unconstitutional seizure of power
On 29 and 30 October, widespread and violent protests took place in the capital, Ouagadougou, and other major towns as Parliament was scheduled to vote on the controversial bill. Protestors overwhelmed the police and stormed the National Assembly building before setting it ablaze.
In the AU’s first reaction, on 30 October, the organisation expressed ‘deep concern about the unfolding situation in Burkina Faso’ and announced its plan to send a high level-team to Burkina Faso as part of a joint United Nations-AU-ECOWAS mission. The AU did not say much on the subject of contention beyond generally expressing its support for the people of Burkina Faso.
Although Compaoré tried to control the situation – first by declaring marshal law and later by declaring the withdrawal of the controversial bill – his efforts were clearly too little and too late to change the tide of opposition against him. As street protests continued and French President François Hollande announced that he believed Compaoré would do the right thing, the president issued a statement on 31 October announcing his resignation.
Compaoré subsequently fled the country, reportedly with the support of France. Meanwhile in Ouagadougou, uncertainty regarding leadership of the country intensified. At first the chief of the armed forces was declared the country’s new leader. The army then suspended the Constitution and appointed Lieutenant Colonel Isaac Yacouba Zida, Deputy Head of the Presidential Guard, as the transitional leader – thereby flouting the constitutional processes that govern changes in power in the event of resignation.
On 1 November, the AU again issued another statement. Apart from noting Compaoré resignation, one of the major points was the AU’s call for a ‘civilian-led and consensual transition’.
There were two major issues that the AU’s statement failed to address at this critical point in time. First, unlike other similar instances of military takeovers, the AU did not condemn the unconstitutional seizure of power by the army. While the AU called for ‘civilian and consensual’ transition, it failed to define the terms of reference, or the politico-legal framework, under which the proposed civilian transition ought to take place.
Under Article 43 of the Burkina Faso Constitution, in the event of the absence or resignation of the president, the president of the National Assembly assumes power until a new president is appointed following elections, which should be organised within 60 to 90 days from the time of resignation. Perhaps in recognition of the speaker of Parliament’s involvement in Compaoré’s attempt at changing the Constitution, the AU statement made no reference to the need to comply with the processes stipulated in the Constitution.
The AU failed to address the issue of tampering with presidential term limits
It was during the PSC session on 3 November that the AU adopted a comprehensive response to the crisis. In a communiqué issued after the meeting, the PSC reiterated the AU’s earlier call for a ‘civilian-led and consensual transition.’ It furthermore ‘deplored the declaration of the military through which it suspended the Constitution and assumed power … as constituting a coup d’état’. Importantly – given the AU’s responsibility in ensuring respect for constitutionality and addressing the omission in its 1 November statement – the PSC affirmed ‘the continued validity of the Constitution of Burkina Faso’.
Even though it rejected the actions of the military, the PSC decided not to apply the measures stipulated by the AU’s policy on unconstitutional changes of government in the event of a coup. Instead, the Burkinabe military has been given two weeks to transfer power to a ‘consensual and civilian’ administration until elections are held.
Affirming the validity of the Constitution is significant not only in terms of the AU’s norm on unconstitutional changes of government, but it also resonates with the demands of the people to secure the integrity of the constitutional process. What remained unclear was whether it would lead to the process envisaged under Article 43 of the Constitution, and eventually lead to a transition similar to the one that unfolded in Mali after the March 2012 military coup – in which the speaker of Parliament took the role of interim president. Ongoing discussions and mediation processes seem to focus on clarifying the composition of the transitional civilian authority, rather than the strict application of the Constitution.
Even though the PSC’s decision constitutes the most comprehensive response to the situation in Burkina Faso, it still failed to address the issue of tampering with presidential term limits, which has become a trigger of violence elsewhere in Africa, as in Burkina Faso. Left unattended, this issue is sure to arise in a number of African countries where signs of tampering with presidential term limits have emerged as incubent presidents approach the end of their term.
In terms of implementing its decisions, the PSC has provided two frameworks. The first was the AU’s appointment of Edem Kodjo – former secretary general of the Organisation of African Unity, and one of the new members of the Panel of the Wise – as a special representative of the chairperson of the Commission to Burkina Faso. Second, the PSC requested that the AU Commission report back to it at the end of the two-week period on 18 November regarding efforts made towards a civilian-led and consensual transition.
If progress has not been made, the PSC said it would ‘take all appropriate measures, including the suspension of Burkina Faso from participating in AU’s activities and the imposition of targeted sanctions against all those who would be obstructing the efforts referred to above, in accordance with the relevant AU instruments.’
If the military hands over power to a civilian administration, the AU would – for the very first time – have dealt with a military coup without applying the measures it had carried out in similar cases such as Niger, Guinea-Bissau and Mali. This is not the first case in which the AU failed to apply or show consistency in the application of its rules. Most recently, the AU made an exception to Egypt with respect to the rule prohibiting perpetrators of unconstitutional change from participating in elections. If this trend continues, it will not be long before the AU itself is accused of committing unconstitutionality, while seeking to promote constitutional rule in its member states.