On 14 November 2018 Marie-Madeleine Mborantsuo, the president of Gabon’s Constitutional Court, announced that the court had introduced a constitutional amendment addressing instances where the president was ‘temporarily unavailable’.
President Ali Bongo, who reportedly suffered a stroke on 24 October in Riyadh, Saudi Arabia, has undergone surgery and has since been hospitalised. Reports diverge on the true state of his health, although many suggest that he is incapacitated.
This move, over which the African Union (AU) has expressed its concern, is viewed as unconstitutional by civil society and the opposition.
With the country at a standstill, the prime minister approached the Constitutional Court in early October, asking it to invoke articles 13 and 16 of the constitution. He asked the court to authorise the vice-president to hold a cabinet meeting – a role reserved in the constitution for the president.
Neither article 13 nor article 16 gives the Constitutional Court this prerogative. Article 13 provides for situations where there is a power vacuum for any reason whatsoever or when the president is permanently incapacitated. In such a situation the president of the Senate should assume the position until new elections can be organised.
President Ali Bongo, who reportedly suffered a stroke on 24 October in Riyadh, Saudi Arabia, has since been hospitalised Tweet this
Article 16 states that only the president can call and preside over cabinet meetings, unless he expressly delegates those responsibilities to the vice-president.
The opposition has denounced the blatant violation of article 16 by Mborantsuo, who is also Bongo’s mother-in-law and is seen as an instrument of the regime. Mborantsuo, who has presided over the court since 1991, denies allegations of acting unlawfully. She claims it is a ‘temporary’ amendment to find an ‘interim solution to a question which is not addressed by our constitution’.
Civil society leaders insist the constitution only allows the court to interpret the constitution, not change it. They believe the court should have limited itself to interpreting article 13.
The constitution can only be modified or amended by referendum or a vote by both chambers of Parliament (National Assembly and Senate), said Jean-Gaspard Ntoutoume Ayi of the opposition party Union Nationale.
By seeking the court ruling, the government effectively recognised the president’s incapacity to continue holding office, while also refusing to follow the constitution’s guidance and apply article 13, argued Ntoutoume Ayi. This would have seen the president of the Senate assume the position and organise presidential polls within 30 to 60 days.
The opposition has denounced the blatant violation of article 16 by Mborantsuo, who is also Bongo’s mother-in-law Tweet this
Critics believe these delaying tactics are intended to allow the ruling party to retain power. The regime wants to avoid an interim presidency’s leading to elections that it fears it will lose, especially after the disastrous 2016 presidential polls. The low voter turnout at last month’s legislative elections is an indication of the unpopularity of the regime.
The court’s unilateral decision has plunged the oil-rich nation into institutional uncertainty, threatening the viability of democratic institutions and the country’s stability.
Gabon’s institutional decay
This new constitutional amendment is the latest in a litany of decisions by the Constitutional Court in favour of the ruling Gabonese Democratic Party (PDG), in power since 1967.
Critics believe these delaying tactics are intended to allow the ruling party to retain power Tweet this
Following the death of former president Omar Bongo, who had ruled for 42 years, his son Ali Bongo took over as president in highly contested 2009 polls marred by irregularities. Post-electoral violence ensued and the court ruled in favour of Bongo.
In the August 2016 presidential election, the court again declared Bongo the winner, in spite of widespread fraud documented by, among others, a European Union observer mission.
It can be argued that Gabon’s current institutional instability stems from the disputed outcome of the August 2016 presidential polls, which resulted in the postponement, on several occasions, of legislative elections initially scheduled to take place in October 2016.
The Constitutional Court finally dissolved the National Assembly in May 2018, handing (some) power over to the Senate until legislative elections finally took place in October.
The new National Assembly has yet to be sworn in, as Bongo fell ill right before the second round of legislative elections. According to the constitution, when the National Assembly is inaugurated the government resigns and a new government is appointed by the president.
In the August 2016 presidential election, the court again declared Bongo the winner, in spite of widespread fraud Tweet this
This is not possible when the president is absent, nor can other important decisions and texts be approved, such as the 2019 budget (which the president has to validate by December this year). This leaves Gabon in an unprecedented institutional dilemma.
Successive Constitutional Court decisions – validating the controversial 2016 presidential election, the prorogation and then dissolution of the National Assembly, the dubious interpretation of and amendment to the Gabonese constitution – have essentially undermined the very fabric of the society by grossly violating the constitution.
Can the AU salvage the situation?
On 17 November, during his welcoming speech at the AU extraordinary summit, Rwandan President Paul Kagame – the current chairperson of the continental body – wished Bongo well. ‘We wish our brother, President Ali Bongo, a quick recovery and continued stability for his country, Gabon.’
This was followed by a communiqué from AU Commission Chairperson Moussa Faki Mahamat expressing concern over the situation in Gabon and reaffirming the ‘African Union’s strong commitment to the full respect of constitutional order in the country’.
Faki’s communiqué amounts to a subtle condemnation, in diplomatic terms, of the constitutional amendment in Gabon. This is in line with the African Charter on Democracy, Elections and Governance, signed by Gabon. Faki further announced the imminent deployment of a fact-finding mission to Gabon.
Faki’s communiqué amounts to a subtle condemnation, in diplomatic terms, of the constitutional amendment in Gabon Tweet this
The Gabonese government, through its Minister of Foreign Affairs Regis Immongault, insisted that Gabon’s institutions were robust and functioning as they should. Immongault thanked both Faki and Kagame and stated that his government would only welcome the AU mission on agreed terms and at a later stage.
Clearly, had the AU taken strong measures on the partiality of the Constitutional Court in Gabon in 2016 (or even in 2009), this would have averted the erosion of democratic institutions in the country and could have prevented today’s crisis. Inaction will only lead to more instability.
The AU is now faced with the dilemma of a member state being in flagrant violation of the institution’s shared values while invoking its sovereignty.
The continental body must, nonetheless, use the tools at its disposal to curtail unconstitutional changes of government and prevent the erosion of democratic rules and principles in its member states, including Gabon.
This will require other member states to take strong action, including possible sanctions, to re-establish constitutional order in Gabon. The AU can and has suspended other member states in cases of unconstitutional changes of government.
Gabon’s other partners must look beyond their short-term interests and ensure that the country’s institutions are strengthened and that there is a return to respect for the constitution. Flouting the constitution undermines constitutional order and contributes to Gabon’s institutional corrosion, which has caused a lot of harm to the Gabonese people and is contributing to the upheaval in an already unstable central African region.