Africa is again witnessing an increased number of constitutional amendments that allow incumbents to extend their terms and centralise political power.
The latest of these is in the Comoros, where President Azali Assoumani was elected for another term last month after controversial changes to the constitution in July last year. Assoumani could now potentially stay in power until 2029.
In Egypt, Parliament has also recently approved amendments that could see President Abdel Fattah el-Sisi remain in office until 2030.
These cases follow an earlier wave of changes to presidential mandates in Rwanda, Burundi, the Republic of Congo and Chad. The changes were made through controversial referendums in which ruling parties and incumbents were accused of manipulating outcomes.
Since 2015 Algeria, Burundi, the Comoros, Chad, Gabon, the Republic of Congo, Rwanda, Togo, and Uganda have amended their constitutions in favour of incumbents, either to centralise power or to extend term limits.
This has happened despite the existence of the African Charter on Democracy, Elections and Governance, which states that ‘illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union’. The illegal means include ‘the use of any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’.
The charter has been signed by the majority of African states, including Burundi, the Comoros, Chad, the Republic of Congo, Gabon, Togo and Uganda. The unconstitutionality of such changes was re-emphasised by the 2009 PSC Retreat decisions.
The issue has been debated at many levels, but there is still no consensus in the African Union (AU) on when amendments constitute ‘unconstitutional changes of government’ as defined by the charter, and whether such actions should be sanctioned.
Currently, only military coups are sanctioned in accordance with the provisions of the charter and the Lomé Declaration.
The Peace and Security Council (PSC) has also discussed this at length over the years and has tasked the AU Commission with developing a comprehensive framework of the various legal provisions established to deter unconstitutional changes of government.
Yet, in many AU member states, such amendments continue and ultimately infringe on democratic principles, leading to instability and authoritarianism. In order to prevent this, the PSC should ensure member states adopt and domesticate its legal frameworks, and adhere to democratic standards when amending their constitutions.
Most constitutional amendments take place before elections and usually seek to effectively weaken established, albeit imperfect, democratic principles, political participation, separation of powers and power alternation. This is particularly true of amendments that serve to disqualify political opponents and extend the tenure of incumbents while undermining the separation of powers or expanding executive control of power.
In the context of the charter, the lack of robust response to such practices is tantamount to condoning authoritarianism.
Peace and security challenge
Incumbents’ attempts to amend constitutions contribute to insecurity, instability and violent clashes in parts of Africa. This has been the case in countries such as Burkina Faso (2014), the Democratic Republic of Congo (2015–2018), Burundi (2015), Togo (2017–2019), and Sudan (2018–2019). So far, the AU has been reactive rather than proactive in these matters.
A slippery slope
In some cases, the inability to anticipate the end of a particular regime (owing to its continued stay in power through a constitutional amendment) sees citizens resorting to violent protest, armed dissent or assisted military coups d’état as a means of unseating that leader.
This was the case during the 2011 Arab Spring, the 2019 protests in Algeria and the recent popular protests that led to the overthrow of President Omar al-Bashir in Sudan – all countries where there has been no limit to incumbents’ stay in power. In the end, al-Bashir and Abdelaziz Bouteflika of Algeria were toppled through popular protests in what has been termed as ‘assisted military coups d’état’ in April 2019.
Currently, the military has taken over power in Sudan while the former president of the senate is acting head of state until new elections in Algeria. Protestors, however, question the ability of those currently in power to organise fair elections.
The AU Commission has labelled the situation in Sudan an unconstitutional change of government and on 15 April the PSC gave the country’s military rulers a two-week deadline to hand over power to civilian rule.
The gap in the articulation of AU legal frameworks means that any attempt by citizens to remove incumbent leaders without using means articulated in their national constitutions, can be categorised as ‘unconstitutional’. At the same time, the actions of many governments evade the AU’s attention.
A semblance of legality
In February Egypt’s Parliament approved a motion to amend the constitution. If passed, and validated through a referendum, el-Sisi could remain in power until 2030. Critics believe that these measures will expand the powers of the president and the military, and undermine the independence of the judiciary.
Most constitutional amendments in favour of incumbents have followed similar seemingly democratic processes that appear to garner national consensus, mostly through referendums, but that work in favour of particular leaders and their parties.
The AU Commission was tasked by the PSC in August 2018 to collect the constitutions of member states for reference purposes, but this has not been used effectively as a monitoring mechanism for constitutional amendments.
While the commission was also tasked with developing benchmarks to help monitor compliance with the standards set out in the AU’s legal frameworks, it currently does not have a mechanism to determine whether member states adhere to existing frameworks.
Thus, while the AU has the legal frameworks in place to respond to undemocratic constitutional amendments, delays in the articulation of a clear implementation plan and a lack of clarity in delegating responsibility to monitor compliance have hindered its response.
Defining unconstitutional changes
Given the growing danger posed by constitutional amendments, the PSC should prioritise the issue and enforce related legal frameworks.
The most important first step is for the PSC to articulate which circumstances leading up to constitutional amendments qualify as unconstitutional changes of government. Related to that is the need for it to follow up on its decision for the AU Commission to develop guidelines for amending national constitutions.
The measures to be taken when constitutional amendment processes are deemed unconstitutional should also be articulated, to ensure the consistency and predictability of the continental response. So far, AU legal frameworks only provide reactive punitive measures for unconstitutional changes of government.
Here the PSC should also follow up on its decision for the AU Commission to develop guidelines for amending constitutions. Rather than taking only punitive responses, the PSC should aim to mandate a specific sub-committee with the task of monitoring constitutional amendments. The committee can support member states, and undertake observation and advisory missions to ensure amendment processes are constitutional, transparent and abide by the will of the people.
The PSC can further monitor compliance by requesting member states to officially inform the AU of any constitutional amendments so as to enable the PSC to deploy observation or advisory missions to assist the process.
As has been the PSC’s intention since 2014, the various legal provisions established to deter unconstitutional changes of government should also be consolidated into a single comprehensive legal framework. This will help established technical organs to monitor ongoing constitutional amendments to inform the PSC’s early response actions.
Lastly, the PSC should enjoin member states that have not signed or ratified relevant AU legal frameworks to do so in support of continental efforts to promote good governance and democracy.