Category Archives: Uncategorized

Kyrgyzstan Weakens Legal and Social Guarantees for Ex-Presidents amid Continuing Confrontation Between the Current and Former President

My previous post for this blog illustrated that approximately half of the post-Soviet states modeled their laws on immunity for ex-presidents on Russian legislation, which was put in place at the very end of 1999 when Boris Yeltsin transferred power to Vladimir Putin.[1]  In some cases, post-communist states copied provisions from the Russian Federation law word-for-word, a phenomenon known as diffusion by imitation.  In an important related study, whose results were just announced, Edward Lemon has discovered that “[a] whopping 79% of Kyrgyzstan’s and 56% of Tajikistan’s laws [on extremism] are identical to the Russian law (compared with 4% for Kazakhstan, 5% for Uzbekistan).”[2]  As Lemon’s work suggests, given the availability of software that makes it easy to do textual comparison, we are in a position to rigorously test the extent to which the Russian Federation has managed to shape the “legal space” in the Soviet successor states, especially in those countries that lie within what President Medvedev referred to in 2008 as Russia’s sphere of privileged interests.  

Comparing legislative practice allows us to assess not only the extent of policy diffusion but also the robustness of Soviet-era legacies.  My last post noted that Moscow’s role as law-giver was reminiscent of traditions from the Soviet-era, when a model law developed in the center served as a template for legislation in the 15 union republics.  When asked this month to justify Kyrgyzstan’s “plagiarizing” of Russia’s laws on extremism, Karima Amankulova, a spokeswoman for Kyrgyzstan’s Ministry of Internal Affairs, offered the following explanation.

“What some call plagiarism, others would label the unification of legislation.  The member states of the Commonwealth of Independent States develop model legislation and then countries may decide which norms they wish to implement [adopt as legislation].”[3]

Given Russia’s political prominence in the region and the depth of its technical expertise in legislative drafting, there is little doubt that Moscow still takes the lead in shaping model legislation.  The power of legacies and diffusion has its limits, however.  In the case of Kyrgyzstan, last year’s dramatic falling out between former President Almazbek Atambaev and his designated successor, Sooronbai Jeenbekov, led those in power in Kyrgyzstan to embrace some Russian-inspired norms on protections for ex-presidents while advancing others that diverge from the model established in Moscow. 

Following the arrest last year of Atambaev loyalists and calls for the prosecution of Atambaev himself—in part for his alleged involvement in fraudulent activities associated with the renovation of Bishkek’s heat and power generating plant—opponents of the former president launched efforts to strip all Kyrgyzstani ex-presidents of immunity from prosecution.[4]  These efforts took the form of parallel assaults in judicial and legislative institutions on the protections enjoyed by ex-presidents.  A lawsuit filed in the Supreme Court’s Constitutional Chamber resulted in an October 2018 decision that invalidated what the court concluded was a blanket immunity granted to former presidents.[5]  The court accepted the need for limited immunity as a means of protecting ex-presidents from baseless investigations, and at the same time it insisted that any procedures put in place to overcome immunity guarantees for ex-presidents “should be no less complex than those employed in impeachment proceedings for a sitting president…”[6]  The Constitutional Chamber also took the highly unusual step of instructing the country’s Minister of Justice and parliament to enact a corresponding statute.[7]   

Prior to the issuance of the Constitutional Chamber’s decision, a group of parliamentary deputies had submitted a bill removing all protections from criminal prosecution for former presidents.[8]   In the view of these deputies, as well as the complainant in the case before the Constitutional Chamber, ex-presidents should be on the same legal footing as ordinary citizens.  This bill passed its first reading in December 2018, but amendments adopted during the second reading introduced two critical changes to the legislation.  The first, which accords with the language of the Constitutional Chamber ruling, permits the removal of immunity from criminal prosecution for ex-presidents only if (1) the Procurator-General issues an accusation of wrongdoing [obvinenie] in connection with the commission of a grave crime [tiazhkoe prestuplenie] and (2) the parliament votes to strip the former president of immunity by a two-thirds majority.[9] These provisions brought the Kyrgyzstani law into close conformity with Russian legislation on the subject.[10]     

The second revision, however, departed decisively from Russian practice.  It denied ex-presidents the traditional package of publicly-funded social and financial benefits, including medical care, housing, a salary, and free transportation, if he or she chose to remain active in politics or return to government service.  In other words, the revised legislation sought to encourage future ex-presidents to pursue the kind of quiet, apolitical retirement that President Atambaev claimed he would enjoy upon leaving the presidency.

On April 4, 2019, Kyrgyzstan’s 120-member parliament passed the law with the above revisions by a vote of 111 to 4.  Among the four no votes were sponsors of the legislation, for whom the amendments introduced in the second reading afforded legal protections for ex-presidents that they believed were excessively generous.   Notwithstanding the misgivings of these deputies, President Jeenbekov signed the bill into law on May 16, and in so doing limited the protections that he himself would enjoy on leaving office in 2023, at the end of his single, six-year term.[11] 

Numerous commentators have argued that because the Kyrgyzstani Constitution prohibits the application of laws retroactively if they impose new obligations or additional responsibility [otiagchaiushchaia otvetstvennost’] on citizens, the first ex-president to whom the new legislation would apply is the incumbent, President Jeenbekov.  In this reading, former presidents Otunbaeva and Atambaev would continue to enjoy the full range of protections from criminal investigation and prosecution contained in the laws in force when they left the presidency.[12]  However, in an effort to extend the reach of the law to Otunbaeva and Atambaev, deputies included a provision in the legislation which insisted that the new rules would apply to any actions committed by a president since 2007—a provision that will surely provoke a challenge in the Constitutional Chamber.[13] 

By weakening immunity from prosecution for ex-presidents, Kyrgyzstan has not only aligned itself more tightly with the Russian model on criminal responsibility for former leaders, it has also moved the country closer to the norms championed by Western-oriented organizations such as the Venice Convention of the Council of Europe and the OECD.  Both of these organizations have advised post-communist countries against introducing broadly-worded immunity for politicians because it encourages corruption.[14]  Paradoxically, one of the most robust defenses of the values espoused by the Venice Convention and the OECD was made by Almazbek Atambaev in 2011.  In his words:

“It’s going to be hard to establish order in Kyrgyzstan unless we can show that there aren’t untouchables, and there will no longer be untouchables in Kyrgyzstan.  And that includes the president himself.  If I’m somehow involved in something I am prepared to be held to account.  I don’t need any immunity.”[15]

Former President Atambaev may be rueing these words today.     

In closing, it’s worth repeating that the leverage and linkages enjoyed by centers of geopolitical power have their limits as explanations of policy diffusion.  The recent legislative changes regarding immunity for ex-presidents in Kyrgyzstan appear to draw their primary inspiration not from Moscow or Paris or Washington but from mundane maneuvers in a domestic political game, a game in which a sitting president and his allies have been under assault for more than a year by a former president who is also their erstwhile patron.  If there is one broader lesson to be taken from the specifics of the Kyrgyzstani case, it is that protections for ex-presidents are only viable when former leaders observe reasonable political restraint in their presidential afterlife. 


[1] “Post-Communist Countries: Policy Diffusion relating to Immunity from Prosecution for Ex-Presidents.”  http://presidential-power.com/?p=9483

[2] https://twitter.com/EdwardLemon3/status/1125427216739966983

[3] AzattyqTV, May 9, 2019, at 9:20 mark.  https://rus.azattyq.org/a/nastoyaschee-vremya-azia-8-maya/29930014.html

[4] The investigation into wrongdoing in the repair of the power plant appeared to trigger the initiatives for stripping Atambaev and all ex-presidents of immunity, though Atambaev has been subject to calls for his prosecution for numerous scandals dating to his time in office, including the release of a powerful ethnic Chechen criminal kingpin, Aziz Batukaev. 

[5] Whereas sitting presidents are subject to impeachment in Kyrgyzstan, ex-presidents are not, and therefore because they were immune from both judicial and legislative responsibility, former presidents have arguably been in a more impregnable legal position than presidents.  In this regard, Kyrgyzstan has for some time differed from Russia, where, as noted below, ex-presidents have been subject to prosecution if certain procedural hurdles are overcome.

[6] Reshenie Konstitutsionnoi palaty Verkhovnogo Suda Kyrgyzskoi Respubliki, 3 oktiabria 2018 goda 06-r.  http://cbd.minjust.gov.kg/act/preview/ru-ru/9748/10?mode=tekst

[7] Some deputies insisted that the Constitutional Chamber exceeded its authority in giving these instructions to executive and legislative institutions.  See, for example, Bakyt Asanov, “Neprikosnovennost’ eks-prezidenta.  Chem reshenie suda vozmutilo ZhK,” Radio Azattyk, April 10, 2019.  https://rus.azattyk.org/a/kyrgyzstan-ex-president-parliament/29664302.html

[8] The bill was in fact a set of revisions to The Law on the Activity of the President, O garantiiakh deiatel’nosti Prezidenta Kyrgyzskoi respubliki, ot 18 iiulia 2003 no. 152.  http://cbd.minjust.gov.kg/act/view/ru-ru/1278

[9] Zhazgul’ Egemberdieva, “’Instrument protiv Atambaeva.’ Kak budet rabotat’ zakon o lishenii eks-prezidenta Kyrgyzstana neprikosnovennosti,” Nastoiashchee vremia, April 5, 2019. https://www.currenttime.tv/a/ex-president-kyrgyzstan/29863858.html

[10] In the Russian case, criminal cases against ex-presidents are initiated by the Head of the Criminal Investigative Commission rather than the Procurator-General, and only a majority of votes in each of the country’s two legislative chambers is needed rather than two-thirds approval.

[11] The Kyrgyzstani Constitution gives presidents 30 days to sign a law once it has been transmitted from the legislature.  For reasons that are unclear, in recent months President Jeenbekov has taken from 20 to 27 days to give his assent to legislation; in this case, he signed the bill into law on the 29th day. 

[12] Ekaterina Ulitina, “Podpishet li Zheenbekov zakon o lishenii eks-prezidentov neprikosnovennosti?” Vechernyi Bishkek, April 5, 2019.  https://www.vb.kg/doc/377646_podpishet_li_jeenbekov_zakon_o_lishenii_eks_prezidentov_neprikosnovennosti.html; Aidai Erkebaeva, “Pochemu lishenie neprikosnovennosti eks-prezidentov ne pomozhet privlech’ Atambaeva k otvetstvennosti,” Kloop, May 23, 2018.  https://kloop.kg/blog/2018/05/23/pochemu-lishenie-neprikosnovennosti-eks-prezidentov-ne-pomozhet-privlech-atambaeva-k-otvetstvennosti/  Among those disagreeing with this interpretation is the current head of Kyrgyzstan’s Security Council, Damir Sagynbaev, who insists that if Atambaev lost immunity he could be brought to justice.  According to Sagynbaev, “If there’s evidence, we’ll open a case.”  “Na Atambaeva mogut vozbudit’ delo, esli ego lishat immuniteta,–Sovbez,” Sputnik, 7 February 2019.  https://ru.sputnik.kg/politics/20190207/1043226413/atambaev-delo-immunitet-sovbez.html  

[13] Emil’ Sultanaliev, “Parlament okonchatel’no odobril zakonoproekt o sniatii neprikosnovennosti s eks-prezidenta,” Kloop, April 4, 2019.  https://kloop.kg/blog/2019/04/04/parlament-okonchatelno-odobril-zakonoproekt-o-snyatii-neprikosnovennosti-s-eks-prezidenta/ Curiously, although the Constitution in place before 2007 granted immunity to presidents, since that time immunity provisions have only appeared in the Law on the Activity of the President and not in the Constitution itself. Adding an additional wrinkle to the uncertainty about the impact of the new law are revisions to the country’s Criminal Procedure Code (CPC) that came into effect in January of this year.  Article 478, paragraph 4 of the amended CPC, which was adopted well before the Constitutional Chamber decision or the new law on immunity, places the decision on bringing an ex-president to justice in the hands of the country’s Procurator-General.

[14] Kyrgyzstan (Promezhutochnyi doklad) [March 2019], Chetvertyj raund monitoring Stambul’skogo plana deistvii po bor’be s korruptsiei.  OECD,  Set’ po bor’be s korruptsiei dlia Vostochnoi Evropy I Tsentral’noi Azii.  www.oecd.org/corruption/acn ; Zakliuchenie po proektu Konstitutsii Kyrgyzskoji Respubliki, Zakliuchenie No 582/2010, 8 iiuniia 2010 g.  Evropeiskaia komissiia za demokratiiu cherez pravo (Venetsianskaia komissiia).  https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)015-rus

[15] Kubanychbek Zholdoshev, “Nuzhna li eks-prezidentam neprikosnovennost’?” Radio Azattyk, March 1, 2019.  https://rus.azattyk.org/a/kyrgyzstan-pravo-neprikosnovennost-ex-prezidentov/29184972.html  Iskhak Masaliev, a sponsor of the 2018 bill amending the immunity provisions, noted that there were efforts from 2011 to 2014 to strip ex-presidents of immunity from prosecution, but none was successful.  Kybanychbek Zholdoshev, “100 golosov ‘za’. Kogo iz eks-prezidentov mogut lishit’ neprikosnovennost’,” Radio Azattyk, December 14, 2018. https://rus.azattyk.org/a/kyrgyzstan_ex-president_neprikosnovennost/29655573.html  Curiously, although the Constitution in place before 2007 granted immunity to presidents, since that time immunity provisions have only appeared in the Law on the Activity of the President and not in the Constitution itself.

Negotiations continue on what will replace the al-Bashir regime in Sudan

In the end, the fall of Sudan’s president Omar al-Bashir seemed to come quickly, with rumours circulating on the morning of 11th April that a debate was underway within the state security services and the military about how it would be handled – and who would replace him. He was gone by that evening, after almost 30 years in power. But the dramatic events came after months of protests, which began in December over food price increases and quickly turned into a demand for his regime to go. They continued despite a harsh crackdown in which scores of demonstrators were shot dead by state forces, including medics. It is hard to overstate the importance of these events, even though it’s not yet certain that fundamental and lasting change will happen, or whether some factions in the security forces will manage to hold on to the real power.

The background to the demonstrations is explained in a previous blog post on this site, and the regime itself is also analysed here. The organisers remained relatively united and channelled the anger felt by many ordinary people. At a certain point, it seems that many lost their fear of the regime, felt that there was a realistic chance of change, or were simply prepared to risk sacrificing their lives. Eventually a demonstration outside the national military headquarters in Khartoum on 6th April became a round-the-clock affair, and then a remarkable thing happened: soldiers were seen on the streets supporting the protesters. The various elements and ranks of state security apparatus, which Omar al-Bashir had managed so skilfully over the years, were clearly at odds with each other. On a number of occasions, soldiers returned fire on units of the state security which turned up and shot at the protesters. Several soldiers lost their lives. The future of the country was no longer being decided on the streets, but now also through a struggle within the security services.

On 11th April, it was clear that a coup had taken place. Later in the day the country’s First Vice President, Lt Gen Ahmed Awad Ibn Auf, announced that he was in control. The constitution was suspended and there would be a two-year transition period. However the protesters outside the headquarter in Khartoum remained determined, knowing that Auf was not only the defence minister but also a key figure in the old regime. He was replaced the following evening by another military officer, Lt Gen Abdel Fattah Abdelrahman Burhan, who is seen as more open to the protesters’ demands, and had in fact met with them in the previous days. There were scenes of joy, as soldiers and demonstrators mingled outside the headquarters.

Transition process underway

Power is currently held by the Transitional Military Council, under al-Burhan, while negotiations on a transition continue with an alliance of opposition groups. These talks were continuing as this piece went online. The opposition is grouped under an umbrella body, the alliance of the “Declaration of Freedom and Change”. Agreement apparently reached so far included a three-year transition period, with a parliament whose 300 members would be appointed rather than directly elected. Two thirds of the members would come from the Freedom and Change group. A cabinet of technocrats would be nominated by the opposition groups, however a “Sovereignty Council” would also have real powers, and be made up of both military and civilian representatives.

As a sign of ongoing tensions within elements of former regime as the talks continued, protesters continuing the sit-in outside the military headquarters were attacked on 13th May by unidentified elements wearing uniforms of one of the state security services. Five civilians and one army officer were killed. The Council later announced the arrest of those responsible, who it described as infiltrators. Meanwhile, the Popular Congress Party, which held power under al-Bashir, is unhappy with the power-sharing arrangements, in which they would apparently have little say.

There is some international pressure on the Transitional Military Council to finalise a handover of power, from the African Union (AU), the Intergovernmental Authority on Development (IGAD), and the EU. The AU’s Peace and Security Council called at the end of April for the transition to civilian rule to be completed within 60 days. However both Saudi Arabia and the United Arab Emirates have supported the Council, with an offer of $3 billion in budget support and aid.

The fate of the detained former President al-Bashir is a key question for whatever political order replaces his authoritarian regime. An indictment for genocide and other crimes in Darfur still hangs over him, despite which he managed to travel internationally as president without any attempt to arrest him. His fate is more likely to be decided within Sudan, however, although it is far from certain what will happen. Having been held initially in what the military called a “safe place”, he was later moved to the notorious Kobar prison in Khartoum, where so political opponents suffered at the hands of his regime. He has now been charged in relation to the deaths of protesters during the four months of demonstrations since December which ended his 30-year rule.

The resilience of different elements of the former regime is not to be underestimated – but neither is the determination, capacity, and resourcefulness of the civil groups staging these protests, along with a well-educated and mobilised diaspora. Whoever is control, the severe economic problems facing Sudan which prompted the protests last December, along with the civil war in neighbouring South Sudan, will be a significant challenge. But it is clear that things will never be quite the same.

Presidential power, consistency in constitutional design and its effect on democracy

This blog post summarizes some of the key findings from my article “Consistency in Constitutional Design and its Effect on Democracy” recently published in Democratization. In this article, I first ask whether the art of crafting and amending a constitution leads to a consistency among constitutional provisions. And second, if that is so, what effect has this consistency on a country’s democratic performance? Drawing from theoretical claims on the separation of power and electoral legitimacy, I develop a concept that identifies the institutional characteristics of consistency and inconsistency in the constitutional design with the example of the presidency and test its effect on the quality and level of democracy.[1]

The Idea

Research has provided us with substantive evidence that more presidential powers are associated with poorer democratic performance. But we also know of the problems of a causal argument because of the endogeneity of power (Cheibub 2007). Considering this, scholars have in recent years pushed the discussion in different directions, most importantly towards the advantages and disadvantages of individual constitutional provisions and their interaction when it comes to the power of the president (for example ,Elgie and Schleiter 2011; Sedelius and Linde 2018). Combined with the observation that the internal coherence of the classic categorizations of presidentialism, parliamentarism, and semi-presidentialism is not as strong as has been long assumed (Cheibub, Elkins, and Ginsburg 2014), I argue in this article that a new approach to understanding the mechanisms behind institutional effects on the quality of democracy is necessary.

Hence, I utilize a concept of consistency and inconsistency in the constitutional design of the presidency to assess institutional balances and effects. Constitutional designs usually combine ideas from different constitutional logics and sometimes also legal traditions. They rarely develop carefully mixed and matched institutions. Rather, constitutional designers go to a constitutional grab bag and often create a Frankenstein constitution with – presumably – very little attention to how different parts of the constitution might interact. The reasons to do so range from power considerations to historical legacies but can also be “caused by a polity’s commitment to apparently conflicting values” (Hirschl 2009, 1349). This grab bag is not necessarily a bad thing: Jacobsohn (2010, 16) for example stresses that “disharmony” in constitutional design can be a valued asset in the necessary process of renegotiation and recalibration. His idea is that inconsistency and disharmony in these designs may be more helpful in the democratic development of countries than harmonious or consistent constitutional solutions. This also informs the main hypothesis in which I assume that inconsistency benefits the level and quality of democracy.

Consistency and Inconsistency

But what is consistency in constitutional design? To develop a concept of consistency/inconsistency and assess its importance and impact on democracy, I focus on a core element of constitution making: the interaction of the way a president is elected and his/her constitutional power. This core element is often contested but is also central in nearly every modern republican constitution. This idea of consistency and inconsistency between election and power of the president touches upon two core principles of democratic government: the balance of power and the legitimacy of the presidency. Within the logic of checks and balances, a direct presidential election should be counterbalanced by a limited amount of power. But arguing in the logic of presidential legitimacy, a consistent constitutional design emphasizes the alignment of legitimacy and de jure power, and an inconsistent design reveals the counterbalance of legitimacy and de jure power. I follow the latter, relying on the rationale that a consistent constitutional design will align the way the president is elected with a coherent amount of de jure power. Hence, a constitutional design is defined as consistent when the introduction or abolition of the president’s direct election comes in tandem with matching constitutional powers or allows for an adaptation to the pre-existing order in a coherent way. Conversely, I define an inconsistent constitutional design (and amendment) when it counterbalances the mode of election with diametrically opposite powers.

Empirics

In order to empirically test my theoretical expectations, I focus on parliamentary and semi-presidential systems because the varying degree of the dual authority of a prime minister and a president. I rely on a new data set of the 79 republican countries that have experienced parliamentarism or semi-presidentialism at some point in their history since 1918 (Cheibub, Martin, and Rasch 2015; Elgie 2018). The constitutions and constitutional amendments analyzed in this study can be found in the repository of the Comparative Constitutions Project (Elkins, Ginsburg, and Melton 2009).

Based on these data, we see that consistency in the constitutional design of the presidency is more frequent in parliamentary and semi-presidential republics. Also, to no one’s surprise, direct presidential elections mostly result in an accompanying higher level of constitutional power: Constitution-makers obviously consider the legitimacy of the direct presidential election and honor it by bestowing more de jure power.[2]

Depending on the measure I use to quantify the quality and level of democracy, the effect of a consistent constitutional design varies. But the results show that a consistent design of the presidency is not supportive to democracy but suggest that inconsistency is beneficial. The inconsistency of constitutional design, a directly-elected president with only little power or an indirectly-elected president with a constitutionally powerful position, explains a higher quality of democracy, freedom, the rule of law, and horizontal accountability. As one could expect, we see the strongest positive influence of inconsistent constitutional design on horizontal accountability as measured by V-Dem (Coppedge et al. 2017).

Table 1. Effect of consistent constitutional design on horizontal accountability (GLS regression with random effects).

Source: Fruhstorfer, Anna. “Consistency in constitutional design and its effect on democracy.” Democratization (2019), Online First. DOI: 10.1080/13510347.2019.1590815.

This supports the assumption that a consistent design of the presidency creates either a president that is too strong or too weak and thus threatens the equilibrium between the core political institutions. Consistency and inconsistency are, an equally strong (in the case of the V-Dem measure an even stronger) explanation for the quality of democracy as the governmental type (parliamentary/premier-presidential/president-parliamentary system). Yet, as mentioned earlier, constitutional design is never picked in an absolute vacuum and the obvious endogeneity of this argument has to be taken seriously. But, the finding that constitutions that counterbalance the power and the election of the presidency are beneficial to the quality of democracy has major implications for the role of institutional design and the question of best institutional solution in democratization and democratic consolidation.

References

Cheibub, José A., Zachary Elkins, and Tom Ginsburg. 2014. “Beyond Presidentialism and Parliamentarism.British Journal of Political Science 44 (03): 515–44.

Cheibub, José A. 2007. Presidentialism, Parliamentarism, and Democracy: Cambridge University Press.

Cheibub, José A., Shane Martin, and Bjørn E. Rasch. 2015. “Government Selection and Executive Powers: Constitutional Design in Parliamentary Democracies.” West European Politics 38 (5): 969–96.

Coppedge, Michael, John Gerring, Staffan I. Lindberg, Svend-Erik Skaaning, Jan Teorell, David Altman, Michael Bernhard, M. Steven Fish, Adam Glynn, Allen Hicken, Carl Henrik Knutsen, Joshua Krusell, Anna Lührmann, Kyle L. Marquardt, Kelly McMann, Valeriya Mechkova, Moa Olin, Pamela Paxton, Daniel Pemstein, Josefine Pernes, Constanza Sanhueza Petrarca, Johannes von Römer, Laura Saxer, Brigitte Seim, Rachel Sigman, Jeffrey Staton, Natalia Stepanova, and Steven Wilson. 2017. “V-Dem Dataset V7.1.”.

Elgie, Robert. 2018. “The Semi-Presidential One Blog.” Accessed May 01, 2010.

Elgie, Robert, and Petra Schleiter. 2011. “Variation in the Durability of Semi-Presidential Democracies.” In Semi-Presidentialism and Democracy, edited by Robert Elgie, Sophia Moestrup, and Yu-Shan Wu, 42–61. Houndsmills: Palgrave Macmillan.

Elkins, Zachary, Tom Ginsburg, and James Melton. “The Comparative Constitutions Project: a Cross-National Historical Dataset of Written Constitutions.” Accessed February 22, 2013. http://www.comparativeconstitutionsproject.org/.

———. 2009. The Endurance of National Constitutions. Cambridge. Cambridge Univ. Press.

Hirschl, Ran. 2009. “The’Design Sciences’ and Constitutional Success.” Texas Law Review 87: 1339–74.

Jacobsohn, Gary J. 2010. Constitutional identity: Harvard University Press.

Sedelius, Thomas, and Jonas Linde. 2018. “Unravelling semi-presidentialism: Democracy and government performance in four distinct regime types.” Democratisation 25 (1): 136–57.

Shugart, Matthew S., and John Carey. 1992. Presidents and Assemblies. Constitutional Design and Electoral Dynamics. Cambridge [u.a.]: Cambridge Univ. Press.


[1] The article also includes two important case studies on the inconsistent constitutional amendment in Czech Republic and the consistency of the constitutional design in Moldova that will not be discussed in detail here.

[2] In order to study the consistency of the constitutional design of the presidency, I rely on an original dataset of constitutional presidential power, which is measured with a revised and updated version of the measurement index (Shugart and Carey 1992). Based on this, I use the mean of de jure power, i.e., 23 points, as threshold for the distribution of power. An inconsistent design interlocks an indirectly-elected president with a score that exceeds the mean of de jure power (e.g., in Bangladesh) or a directly-elected president with a score that is below the mean of de jure power (e.g., in Czech Republic post- 2012). Conversely, a consistent constitutional design gives a directly-elected president a more than mean level of de jure power, and an indirectly elected president less than the mean level of de jure power.

Portugal: is Marcelo “popularist”?

Last March 9, Marcelo Rebelo de Sousa completed three years as President of Portugal. His tenure has been widely acclaimed among the population, and stirred some controversies in academic and some political circles. What is Marcelo’s imprint on the political landscape of the country?

Recent opinion polls suggest Marcelo has reached very high levels of popularity. Although with a slight tendency to decrease over the last year, Marcelo still commands some 70% of positive opinions among the population at large – restoring the popularity of presidents to the levels obtained by Mario Soares (who left office in 1996 with 70%) or Jorge Sampaio (who also terminated his term with more than 55%), in sharp contrast with Cavaco Silva who, in spite of having had high marks, ended his tenure with negative (-13%) ratings. Cavaco Silva’s poor showing dramatically reduced his capacity to interfere in the political arena, and this fact has been widely acknowledged. So, restoring popularity is normally seen in Portugal as a necessary means to enhance the capacity of presidents to have a significant word on a multitude of aspects of political life, regardless of the constitutional provisions that remain unchanged. To dispose of high rates of popularity is thus a goal of every president.

Marcelo originates from the centre-right wing of politics, but his rise to power was mostly achieved by means of personal qualities and less by virtue of his line-up with the leadership of the parties of his political family, as his predecessor had done. His atitude towards the government issued from the 2015 elections was radically different from that of Cavaco Silva or the leaders of PSD and CDS: he recognised it as legitimate due to the existence of a parliamentary majority that supported the prime minister, even though the Socialist Party had only scored the second place in the popular vote. Throughout these three years, Marcelo has maintained the same position, not challenging the legitimacy of the government. He could then benefit from the positive atmosphere generated around a government that also benefits from the esteem of the electorate, as seen by the local elections of 2017 and consistent opinion polls that grant the left-wing parties a comfortable majority.

On the other hand, Marcelo has made a point of surgically distancing himself from the government in some critical instances, always intent on asserting the lineage of a centre-right politician. To start with, he broke with the tradition that assigns presidents a visit to Spain as the first foreign trip of their terms in office, and preferred to fly to the Vatican to meet the Pope (the country is nominally Catholic but the state is laic). Several other symbolic initiatives were taken along similar lines. But the confrontation that many expected he would pursue was not systematic. More than this, it did not derive from the use of his constitutional powers. For instance: veto power. In this area, Marcelo only used his veto power on eight occasions, and in all of them he forfeited the possibility of having the bills appreciated by the Constitutional Court, which might have produced a constitutional veto which would then require a special majority to be overturned, and preferred to use a political veto that could be overturned by simple majority. They were, so to speak, “friendly vetoes” that could be accommodated by the prime minister. In fact, as a former professor of constitutional law, Marcelo has never called upon the Constitutional Court to help in the analysis of controversial bills.

The source of Marcelo’s influence, paradoxically, resides in his extra-constitutional powers – namely the power of the word. As a former pundit who entered every house on Sunday nights for long years, commenting on every aspect of public life, Marcelo envisages his presidency much in the same vein: he offers his view on whatever issue is on the news. This technique of mass communication tends to generate an effect of proximity with citizens (illustrated by the fact that he excels in taking selfies with whoever asks for), and thus his presidency has been termed “the presidency of affections”. The photo that illustrates this post bears testimony to the proximity of the president with the people at large.

The power of the word, exercised in full view of the public, is critical to understand Marcelo’s presidency. Contrary to convention that suggests presidents and prime ministers exchange views in private (as Cavaco Silva has recently reminded us in bitter terms), or that their views are expressed after some bill has been presented for promulgation, Marcelo has inaugurated a new figure: to offer his opinion (and suggest the sense of his action) before the bill is presented to him, as to preempt the possibility of a veto. Two important pieces of legislation illustrate the presidential influence. Back in 2016, the prime minister announced he wished to propose a bill referring to the direct election of metropolitan areas governance bodies – and the president said it was not a good idea. Although the measure was in PS electoral manifesto and the government’s programme accepted by parliament, the prime minister did not pursue this initiative. More recently, Marcelo made it public he wished the proposed new law on the Basis of the Health System (framing the existence of the National Health Service) to be approved by more than the left wing majority in the House, and went further as he suggested that he would veto the bill if it were to exclude the private sector from participating in the management of units of the National Health Service. He even expressed his support to a draft bill proposed by a former Health minister which did not garner support in the parliamentary majority. Although the presidential position evolved (as he must have realised this is a bill which needs only a simple majority and therefore it would be possible for the left majority to impose its view whatever it would be), PS was split by this initiative and the original project was withdrawn in order to accommodate the presidential views. These examples make it clear that the weight of the president’s word is enhanced (or diminished) by their popularity and their capacity to stay tuned to the main stream of public opinion, even though one may not posit that in every instance the president expresses majoritarian views.

We have so far established that Marcelo is a popular character in Portuguese politics. For some people, however, the price of popularity is a concession to populism. Does the president enjoy high levels of popularity because he opens the doors to populism, i.e., to a form of political criticism that downplays the role of constitutional institutions? Or, conversely, is the president’s popularity an antidote to the rise of populism in the country (as many suggest), being able to contain criticism within the boundaries of established institutions?

Marcelo has been a moderate critic of the government, not less because the prime minister enjoys the sympathy of the electorate. But he has been tough on various occasions. Perhaps the most dramatic intervention of the president is the one linked to the great fires of 2017, which represented a very clear failure of the government to act swiftly. Public opinion turned then against the government, and the president expressed their voice. As mentioned in a post in this blog published at the time, Marcelo both expressed the view that the minister of Home Affairs was no longer able to keep her position (the prime minister proposed to replace her the following day) and the government needed to have its legitimacy refresh in the House (CDS presented a rejection motion that did not pass). Again, a tough intervention through the use of the power of the word – not the decision to dismiss a minister or the prime minister. On another count, Marcelo has made it clear time and again that he regards as a democratic imperative that the opposition to the government be strong and offers real alternatives. The fragility of the right of centre parties at a time when polls indicate they are at a loss and strategically divided offers the president an important arena to have his voice heard. However, he never hinted he would intervene directly over the party system (as he remains a member of PSD, albeit with his militancy suspended)

However, the frontier between the intervention of a popular president and that of a populist leader tend to be fluid. For this reason, it has been suggested that Marcelo should be considered as a “popularist” – i.e. both popular and at times populist. If so, it would be adequate to acknowledge that Portugal has so far been spared the plague of extreme right wing populism. The thesis that the Iberian Peninsula would avoid those dangers to democracy due to the long and painful experience of 20th century authoritarian regimes (Salazar and Franco) seems to be at odds with the reality of the emerging Vox party in Spain, and so new ideas are required to explain why Portugal has so far avoided the contagion of what seems to be a powerful force in modern Europe. So far, we may consider that Marcelo’s popularity has been a factor in mitigating its impact. The next elections will be a test. Will Portugal pass the test?

Nicaragua-An Ortega-Murillo Presidency?

Nicaragua: An Ortega-Murillo Presidency?

David Close

1May 2019

July 19, 2019 will mark the fortieth anniversary of the Sandinista Revolution. In those forty years the Sandinista National Liberation Front (FSLN) has governed for twenty-four; and during all those years in power Daniel Ortega has been the key player in the executive branch. From 1979 to 1984, he was the co-ordinator of the Governing Council for National Reconstruction (JGRN). He was elected president of the republic in 1984, 2006, 2011 and 2016. The first two were free elections. In the latter pair, although there was no doubt that Ortega won, there were clear signs that the Sandinista-controlled electoral commission massaged the results.

            In the forty years since the revolution, Nicaragua has operated under four distinct political systems. From 1979 to 1984 it had a revolutionary vanguard regime, albeit one featuring an uncommonly high degree of pluralism. Then, from 1984 through 2006, Nicaragua was an electoral democracy: winning free elections was the only way to win the right to rule.  By 2008, when tainted municipal elections brought protests and a heavy-handed response from the government, to 2018, the country’s political system is best described as hybrid – having both democratic and authoritarian traits – leaning somewhat authoritarian. It is currently best described as authoritarian, though with some pluralist characteristics.

            In authoritarian systems, we expect to find either a dictator’s personal rule or an official party that cannot lose power via elections. That being the case, Nicaraguans should speak of the Ortega administration; yet they routinely refer to the Ortega-Murillo administration: President Ortega and Vice -President Rosario Murillo, his wife. Though this seems strange, it accurately reflects the structure of power in both the FSLN and the Nicaraguan government since 1998. That is when Zoilamérica Narváez—Murillo’s daughter and Ortega’s stepdaughter—charged Ortega with rape and sexual abuse. Murillo took Ortega’s side and mounted a fierce campaign to discredit her daughter, labelling her a CIA agent. Soon Murillo was remaking Ortega’s image (no more olive drab fatigues) and that of the FSLN (now Christian, Socialist and Solidaristic). Though the changes did not bring the Sandinistas back to power, that needed a serious split in the Liberal vote, Ortega’s comeback win in 2006 brought Murillo into government, albeit in an unpaid, appointed role. She was elected vice-president in 2016.

Since becoming vice-president, Murillo has served as the administration’s public face, the person who appears on TV and radio. President Ortega’s televised appearances are limited to special occasions, such as the anniversary of the victory of the Sandinista Revolution on July 19th. Moreover, it is Murillo who convenes and chairs cabinet meetings. Thus she is effectively the administrative president of Nicaragua. These are not responsibilities normally assumed by a vice-president, so it is reasonable to view Nicargua as a de facto collegial executive. Ortega, however, is still the president, the nation’s political chief as his role in the crisis of 2018 demonstrated.

Entering 2019 it seemed that the administration’s hard line toward protesters had paid off. The presidential couple controlled the streets, had broken the back of civil society groups critical of their governance, harassed independent news sources and held many demonstrators and other foes of the regime as political prisoners. That situation soon changed. Not only did the economy shrink by 7.7 percent in the last quarter of 2018, but foreign investment fell by 53 percent in 2018 and fears were expressed that farmers might be unable to secure loans to let them sow their crops of corn, beans and rice: Nicaragua’s basic foods. Worse, experts foresaw no recovery before 2023. There were even predictions of a further 5 percent contraction in 2019.

Equally disturbing was the political pressure the government faced. The UN, OAS (Organization of American States), the US and most of Latin America condemned the violence the administration used to defeat the demonstrators, killing as many of 455, jailing even more and sending thousands into exile. In the Americas, strong support came only from Cuba and Venezuela. So in February 2019 the president and almost certainly the vice-president too, agreed to renew talks with its opponents, now operating as the Civic Alliance for Justice and Democracy.

The Alliance brought together those who supported the protests of 2018: students, pensioners and Nicaraguan big business. These groups had slightly different aims, but all agreed that everyone imprisoned for participating in the protests must be freed immediately and that full civil liberties must be restored for talks to be held. Further, though not a pre-condition for talks, both the Alliance and the OAS made advancing the date of Nicaragua’s next general election and reforming the country’s electoral commission to make it a non-partisan body non-negotiable demands.

As in the dialogue held in July 2018, Ortega refused to make significant concessions. Civil liberties remained effectively suspended, and regarding freeing arrested protesters, the administration’s initial response was to offer to do so in six months. By early April the talks had broken down. This likely was Ortega’s aim. His administration gained nothing by negotiating with the Civic Alliance, so stonewalling was the best option.

In the 1980s Nicaraguans said the Sandinistas would negotiate anything but their control of government. In the 2010s it seems that the FSLN of Ortega and Murillo will only deal with those they choose, and solely on topics the administration wants to discuss. As there are few instruments the public can use to make the government accountable, Nicaragua’s president is effectively above the law. This applies with equal force whether one speaks of an Ortega administration or an Ortega-Murillo government.

Estonia – Analysing party strategies and their determinants in indirect presidential elections, 1996-2016

I have written about the potential future for indirect presidential elections in Estonia on the pages of this blog several times over the last years. After the minor constitutional crisis in 2016, when both parliament and electoral college failed to elect a president in five rounds of voting, it appeared as though a reform of the system was imminent. Although plans for the introduction of popular election were quickly shelved in favour of a reformed indirect system, no changes were decided until the end of the Riigikogu’s (parliament) legislative period in March. Two weeks ago, a new coalition took office that included the introduction of more direct democracy – including the popular election of the president – in its coalition agreement. Although it is unclear whether there will (ever) be a constitutional majority in favour of popular presidential elections, it is timely to look back at Estonian presidential elections to date and analyse what factors shaped party strategies and electoral outcomes. This blog post summarises some of the key findings from my article “The effects of majority requirements, selectorate composition and uncertainty in indirect presidential elections: The case of Estonia” published in East European Politics.

Since 1996 Estonian presidents have been elected indirectly in either parliament or an electoral college that acts as a (frequently used) failsafe if parliamentary parties cannot muster the required 2/3-majority over three rounds of voting. Nevertheless, the electoral college – consisting of members of parliament and local councilors – does also not stipulate a plurality runoff or other safeguard against cyclical preferences. Furthermore, as the partisan composition and control of the selectorate differs greatly between parliament and electoral college, parties face various uncertainties and cannot always predict if their candidate will be successful. Consequently, the varying majority requirements, selectorate composition, and uncertainty have been the key factors influencing party strategies in Estonian presidential elections.

Only once since 1996 has a president been elected during the first round of voting in parliament (re-election of Toomas Hendrik Ilves in 2011); in 1996, 2001, and 2006 presidents were elected in the respective last round in the electoral college (usually with razor-thin majorities), and in 2016 in a sixth round in parliament after no candidate received the required absolute majority in the college and the election was handed back to the Riigikogu. Throughout this process, it is clear that the requirement of (super)majorities provided a major obstacle for parties. In particular, it minimized incentives to make serious attempts at electing a president in parliament. Rather, parties chose to face the uncertainty of the electoral college. However, in the electoral college local electors who did not belong to any of the parliamentary parties dominated, so that parties had less control over the result. Even those electors belonging to the larger parties often felt torn between voting in line with local or national-level interests (and usually chose the former).

To assess the degree of uncertainty faced by parties in the electoral college through shifts in selectorate composition I gathered data on all 500+ MPs and over 1,000 local council electors that took part in the elections. Interestingly, I found that although overall indicators suggested that shifts in selectorate composition became less dramatic – in part thanks to national parties’ attempts to bring local politics under their control – this proliferated rather than reduced uncertainty over the electoral outcome. The more equal distribution of parties’ strength in parliament and electoral college reduced their capability to present candidates with a credible chance of capturing the presidency – the electoral college merely mirrored the deadlocks and problems of national politics. Paradoxically, the greater permeation of local politics by national parties meant greater power in the hands of electors representing local lists and alliances who subsequently acted in accordance with a different set of preferences and proposed their own candidates.

Although the overall design of the Estonian system may be somewhat unique, it still combines a number of common characteristics that can be found across other parliamentary republics. Unfortunately, there is as of yet very little comparative research on indirect presidential elections (Csaba Nikolenyi’s study is a notable exception here) that would allow us to reliably gauge the wider applicability of the findings from this study or make informed recommendations to policy-makers as they seek to reform the Estonian system. Nevertheless, what appears to be clear it appears likely that if parties fail to instate any type of run-off / simple majority, deadlocks and cyclical preferences are likely to return.

This blog post is based on a recently published article: Köker, Philipp. 2019. The effects of majority requirements, selectorate composition and uncertainty in indirect presidential elections: The case of Estonia. East European Politics [Online First: DOI:10.1080/21599165.2019.1604339]

Senegal – Back to presidentialism?

Newly reelected President Macky Sall has given his prime minister, Mahammed Boun Abdallah Dionne, the unenviable task of eliminating his own position. This will entail changing Senegal’s constitution — once again — and reintroduce a presidential system.

Despite Senegal’s history of relative political stability, the country’s constitutional history has been far from stable. Senegal is at its fourth constitution, since 1959, and has changed government system several times already. In between constitutions, there have been numerous constitutional amendments, most of which have been passed by a legislative vote without resorting to a referendum.

In August 1960, Senegal adopted its second constitution — and its first as an independent, separate republic — after abandoning the short-lived Mali Federation created by the first 1959 constitution. The 1960 constitution was modeled on the 1958 French example with a dual executive: with an indirectly elected president as head of state and a prime minister (“cabinet president”) appointed by the president, but accountable to the National Assembly. Léopold Sédar Senghor was elected Senegal’s first president and his close political ally Mamadou Moustapha Dia became the country’s first prime minister.

This two-headed executive system did not survive a rapidly mounting power struggle between Senghor and Dia that culminated in a constitutional crisis in 1962. Legislators were about to take a no confidence vote in Dia, when the prime minister ordered the army to hinder access to the National Assembly building. Senghor accused Dia of a constitutional coup attempt and had him arrested. The military remained loyal to the president and Dia spent the next 12 years in jail. Senghor promptly took steps to avoid a similar situation in the future and initiated a new, presidential constitution that was approved by referendum in March 1963 (the country’s third constitution in four years). Senghor was reelected in December of that year by popular vote for a four-year presidential term, without term limits. In 1967, in the first of what was to be a be a total of 20 revisions to the 1963 constitution, the presidential term was increased to five years.

Senegal returned to a dual executive system in 1970 with the reintroduction of the prime minister position, in an effort to defuse tensions in a context of social unrest with student demonstration and labor strikes. Senghor initiated a referendum on a constitutional change that this time resulted in a fully fledged semi-presidential government system, providing for a directly elected president and a prime minister accountable to parliament (modeled on the 1962 revised French constitution). This revision also introduced a two-term presidential term limit. This limit was, however, removed again in the fifth constitutional revision of April 1976.

Before finishing his fourth elected term, Senghor resigned on December 31, 1980. Prime Minister Abdou Diouf became president and served out the rest of the term. Shortly after being elected president on his own account in 1983, Diouf initiated a constitutional change to return Senegal to presidentialism. The argumentation presented for the revision included the need for greater efficiency and effectiveness of government action and the expressed desire for a more direct contact between the president and the population. This time, presidentialism survived for eight years, till 1991. With the return to semi-presidentialism in 1991, as the third wave of democratization swept across Africa, Senegal also reintroduced presidential term limits. The term limits were, however, removed again in 1998, in the 19th revision to the 1963 constitution.

When Abdoulaye Wade won the presidency in 2000, marking the first time that executive power transitioned from one party to another in Senegal’s history, the new president initiated the elaboration of a new constitution. The country thus got its fourth and current constitution adopted by referendum in 2001. Senegal retained a semi-presidential system of government, and reintroduced presidential term limits. This new constitution has not fared much better than the old one, however, in terms of amendments. By 2010, the constitutional text had already been revised 15 times, according to Robert Elgie.

Senegal – Changes in government system and presidential term limits

1960Dual executive system, no presidential term limits
1963Presidentialism
1970Semi-presidentialism, term limits introduced [removed again in 1976]
1983Presidentialism
1991Semi-presidentialism, term limits reintroduced [removed again in 1998, reintroduced in 2001]
2019??Presidentialism??

President Macky Sall, shortly after being elected in 2012, initiated a constitutional revision to remove the senate from Senegal’s democratic architecture, but has overall had a less piecemeal approach to constitutional reform. In 2016, the government introduced a series of amendments that touched 20 articles of the constitution and were passed by referendum. Chief among these was the reduction of the length of presidential terms to five years, from the seven years it had been increased to under Wade. Sall’s second term, after his reelection in February of this year, will thus be reduced to five years.  

Sall is now following in the footsteps of Diouf, moving to return Senegal to presidentialism. Perhaps it is his shortened presidential term that provides Sall with a sense of urgency and the desire to streamline decision-making processes. His arguments for returning to presidentialism echo those of Diouf, saying that eliminating the prime minister position will help “reduce administrative bottlenecks” and “bring the administration closer to the people.” His critics allege it is a power grab. It is striking that Sall did not mention his plans to change government system during his campaign for reelection. The first indication of his intentions came in an announcement on April 6, by Mahammed Dionne whom he had just reappointed prime minister. The government thereafter moved quickly and on April 17 adopted a constitutional amendment removing the prime minister position.

The proposed constitutional amendment was on April 24 sent to the National Assembly that will now review and debate the proposed changes. A vote is set for May 4th. It will require a three fifth majority to pass the amendment by legislative vote, a likely outcome in a legislature where the presidential coalition controls a 75 percent majority (125 out of 165 seats). Should the legislative vote pass with less than 60 percent, a referendum is required. The text of the constitutional amendment has not yet been made public, but an alleged copy is circulating online. Reportedly, besides transferring responsibilities as head of government to the president, the revised text also foresees a clearer separation of powers between the legislature and the executive: on the one hand the legislature can no longer topple the cabinet through a no confidence vote, on the other hand, the president cannot dissolve the legislature as is currently the case.

There is no indication that the proposed constitutional amendment will touch on presidential term limits. Hopefully Sall will not follow in the steps of another previous president – Wade – who stood for a third term despite term limit provisions. Wade argued in 2012 that he should be allowed to run again because presidential term limits had been reintroduced in 2001, after he was elected, and could not be considered retroactively. Elsewhere on the continent, Côte  d’Ivoire’s President Alassane Ouattara has argued that the adoption of a new constitution in 2016 reset the term limit counter and that he could therefore run again in 2020, if he wanted to. In Senegal, the difference is that if the amendment passes, the country will have a new government system, but not a new constitution. It remains to be seen whether this is a sure bulwark in a country and region where term limits have proven fickle in the past. In neighboring Guinea, President Alpha Conde and his supporters seem increasingly intent on initiating a constitutional referendum that would lift term limits before Conde’s second and last term comes to an end next year. Despite significant democratic progress in West Africa over the past decade, the notion of presidential term limits does not yet appear to be firmly entrenched.

Tanzania – The politics of being Auditor General

Tanzania’s Comptroller and Auditor General (CAG), Prof. Mussa Assad, is by turns the most celebrated and vilified man in the country right now. His predicament, far from a matter of personality, speaks to broader questions of accountability, institutional oversight and economic strategy under President Magufuli.   

The current tensions began in early January. Speaker of Parliament Job Ndugai accused Prof. Assad of “contempt of Parliament” after the CAG referred to parliament’s oversight performance as “weak” during an interview. The Speaker summoned Assad before a parliamentary disciplinary committee to explain himself, meanwhile briefly suspending the work of parliament’s oversight committees.  

Fast forward to April and the disciplinary committee tabled its report in Parliament, recommending that Parliament suspend work with the CAG, a recommendation that was then voted through by the ruling party majority.

This move elicited a prompt reply from Prof. Assad, warning of a potential constitutional violation. The decision to stop working with Assad came at a sensitive time, just as Parliament was due to debate the CAG’s audit report for the financial year 2017/2018. Assad pointed out, “My office has already submitted the audit report to the President, and it must be submitted to parliament in seven days,” adding, “If this is not done, it will mean breach of the constitution.”

A campaign quickly picked up on social media with many activists praising the CAG and demanding Parliament honour its constitutional duties. Ndugai responded by clarifying that Parliament would review the CAG’s reports, but that it would work with his office and not with the man himself, that is, with Prof. Assad. The Speaker went on to suggest that Assad should in fact resign. This latest move has elicited a response in kind as an online petition calling for Ndugai’s ouster is now fast gaining signatures.

The immediate concern raised by Ndugai’s critics is that he is effectively undermining the independence of the CAG, threatening Prof. Assad to discourage proper oversight of public finances. Relatedly, many see the Speaker’s intervention as part of a cover-up, the main aim being to stop revelations of money “missing and misappropriated under the government of President Magufuli.” While Magufuli has himself remained silent on the CAG issue, Ndugai has developed a reputation as the President’s right-hand-man in Parliament, adding to the impression of executive interference in key oversight institutions, first Parliament and now the CAG. Ndugai’s latest intervention, moreover, is not the first one to come at a sensitive and seemingly strategic moment. When the Speaker challenged the CAG back in January, it was just as a special audit report, critical of government’s financial management, was due to be debated in Parliament.

Whatever the reality of the situation, Ndugai’s heavy-handed interventions certainly reinforce the impression that the government has something to hide. But this raises the question, what does the CAG’s latest audit report actually tell us?

On certain points, it paints a fairly good picture of government’s financial management. For instance, 97 percent of the 241 government bodies audited by the CAG had their accounts in perfect order, a percentage that compares well with the previous administration of President Jakaya Kikwete.

Yet on other points, the CAG’s report does raise significant concerns, not only about government accountability but also about the viability of its current development strategy.

Critics have been quick to note several anomalies, for instance, poor reconciliation of reported funds released by the treasury and received by relevant government bodies. Another worry is the decision to transfer the vastly expanded budget of the state-owned Air Tanzania Company Ltd. (ATCL) to the State House budget, i.e. the President’s office, which the CAG does not audit.  As opposition MP Zitto Kabwe affirmed, “This issue is very important because past experience shows that anything that has a stench of corruption or doubtful expenditure Government moves it to the State House budget because it knows it is not openly audited” (my translation).

Leaving aside accountability, the CAG report highlights several issues regarding government performance. These include delays in development projects due to government’s failure to pay, underperformance of state-owned enterprises (including ATCL), losses at state-owned banks like the Tanzania Agricultural Development Bank (TADB), and unpaid debts owed to various pension funds.

Magufuli has built his no-nonsense, “only work”, “bulldozer” brand, in part, on claims to rapidly implement big infrastructure projects and with a preference for public enterprise in the name of efficiency and cost-cutting. He has also relied on funding from pensions and banks like TADB, which among other things, played a central role financing the government’s ill-fated cashew-buying operation. It is thus not insignificant that these are the precise areas where the CAG has identified shortcomings in government performance.

Arguably, the CAG’s report is most damning not where it points to potential financial mismanagement; rather, the truly concerning take-away is that central pillars of the government’s current development approach are resting on shaky foundations [i]. Ndugai’s criticism of the CAG seemingly only draws more attention to these findings. And in any case, as the IMF revises down Tanzania’s growth forecast from 6-7 percent to a mere 4 percent, the real-world results will be all too plain to see.

[i] As I will elaborate in a follow-up piece, I do not mean to draw a crude contrast between market- v. state-led development strategy, perhaps leaving readers with the impression that I think Magufuli is simply too statist. To the contrary, there is good reason to think public development banks, state-owned enterprise and the like can and should play a more central role in the government’s development strategy. Indeed, a consensus on this issue began to emerge already under Kikwete. But just as there are many “varieties of capitalism”, i.e. many ways of managing a market-led economy, there are also various ways of integrating a more state-led development strategy. The approach Magufuli is currently pursuing, not least privileging public enterprises like the highly costly ATCL, is neither economically nor politically the most desirable.

In Slovakia, voters elect Zuzana Čaputová the first female president in Central Europe

A novice to national politics, environmental and anti-corruption activist Zuzana Čaputová defeated the Vice-President of the European Commission for Energy Union Maroš Šefčovič, in a runoff of the Slovak presidential elections. Her victory reflected growing dissatisfaction with the current government, especially with the Smer-Social democracy (Smer), the senior coalition member. The overall results signal a possible realignment on the political scene ahead of the parliamentary elections scheduled for March 2020.

Three events in 2018 strongly impacted the political atmosphere in Slovakia and directly influenced the presidential election and its outcome: Firstly, the country was shocked by the murder of an investigative journalist Ján Kuciak and his fiancée Martina Kušnírová in February 2018. Kuciak’s work focused on the possible corruption involving elected politicians, high public officials, and the criminal underworld. The country experienced a wave of anti-government mass protests, the largest demonstrations since the fall of the communist regime in 1989. Secondly, amidst the protests, Prime Minister Robert Fico of Smer resigned, paving the way for a reconstruction of the three-party government under the Smer-nominated prime minister Peter Pellegrini. Thirdly, president Kiska officially announced in May 2018 that he would not seek re-election. Though Kiska hinted on his continued involvement in Slovak politics, at the time he refused to provide any details, citing the need to complete his mandate as the president above day-to-day party politics.

With Kiska’s announced departure, the presidential contest had no clear favorite. Early opinion polls suggested a host of potential candidates polled just about 10% support, with Miroslav Lajčák, a Smer-nominated Foreign Minister being a front-runner, should he decide to run. Robert Mistrík, a nominee of the opposition Freedom and Solidarity (SaS), aspiring to become the preferred candidate of the democratic opposition, polled neck to neck with the leader of the extreme-right Peoples’ Party Our Slovakia (ĽSNS) Marian Kotleba, a controversial Supreme Court Justice Štefan Harabin, the leader of the governing Slovak-Hungarian Most-Híd party Béla Bugár and Veronika Remišová,  the leading parliamentarian of the opposition Ordinary People and Independent Personalities (OĽaNO) grouping. Zuzana Čaputová, nominated by extra-parliamentary Progressive Slovakia, seemed to stand no chance.

However, Lajčák repeatedly refused to enter the presidential race, citing his desire to continue his career in diplomatic service. Smer leader Robert Fico ruled out his presidential ambitions and instead announced his bid in January for one of the nine vacancies at the Constitutional Court. Nevertheless, the issue became an important issue of the campaign: the outgoing president Kiska declared he would not appoint Fico to the top court; the prospective presidential candidates also had to take a stance concerning the matter.

To maximize chances of a pro-democratic candidate to reach the runoff, OĽaNO and the Christian Democratic Movement (KDH) did not field any candidate. Also, they attempted to facilitate an agreement among Mistrík, Čaputová and František Mikloško (formerly of the KDH) that whoever of the three had the strongest popular support should get the endorsement of all the others before the first round of the election. Eventually, Mistrík and Čaputová agreed, while Mikloško decided to stay in the race. 

Smer eventually nominated Maroš Šefčovič, the Vice President of the European Commission, who led the Smer party list in the 2014 European Parliament elections. Šefčovič, nominally a non-party independent, received substantial financial support from, and public endorsement of, Smer party and its leaders. Even though he has had a relatively liberal and pro-European social democratic record, his campaign had to rely on the more socially conservative support base of Smer. During the party rallies, Fico likened him to an 18-century Slovak folk hero; Šefčovič himself declined to take a clear stance on issues critical of Smer and its leader, and eventually even profiled himself as a champion of traditional Christian values.

The critical phase of the campaign – and Čaputová’s rapid increase of popularity – came with the first televised debates among presidential contenders. She presented herself as a thoughtful, calm and firm voice of social justice, criticizing defects in the rule of law, yet refraining from negative campaign and ad hominem attacks. Her performance seemed to resonate well with the public expectations and the general mood in the country. Robert Mistrík eventually honored their agreement, withdrew from the race, and unequivocally supported her before the first round. As a consequence, Čaputová’s approval ratings quickly reached 40-50%.

Her main opponents concentrated on getting to the second round: Maroš Šefčovič presented himself as an experienced politician, respected at the European scene, ready to lead the country and defend its national interests. Štefan Harabin appealed to disillusioned voters with his outright dismissal of the established political elites: He promised to exercise the presidential powers to the fullest extent, taking an active role in foreign policy to protect the country against what he called the dangers of Islamization and the loss of national sovereignty in the EU. Marian Kotleba of the extreme-right ĽSNS echoed his rhetoric, pointing out that Harabin himself contributed to the erosion of Slovak sovereignty by being a Justice Minister of the government that agreed with the EU Lisbon Treaty.

Čaputova won the first round held on March 16, gaining 40.6%, followed by Šefčovič, who received 18.7%. Harabin and Kotleba gained 14.4% and 10.4%, respectively, followed by Mikloško (5.7%) and the other minor candidates. With two weeks to the runoff, Šefčovič attempted to close the gap by aggressively addressing the supporters of Harabin and Kotleba: The day after the first round he portrayed himself as the champion of traditional Christian conservative values, criticizing Čaputová for her openness to LBGT agenda. He even claimed that he, as the member of the European Commission, actively opposed the Commission-sponsored proposal that would enable the relocation of asylum seekers across the EU countries. Later on, he returned to his previous agenda, stressing his experience and credentials in international politics. Čaputová, on the other hand, stood on her original message. As the favorite, she concentrated on mobilizing her support base from the first round, underlining the result of the contest were open. Her support reached 58.4%; her opponent gained 41.6%. Compared to 48.7% in the first round, turnout dropped to 41.8%, reflecting the fact that many supporters of Harabin and Kotleba did not take part in the runoff. Those who did mostly voted for Šefčovič. Čaputová managed to win over younger, and better-educated voters. Šefčovič’s support base contained mostly older, less educated voters who tend to support Smer.

Čaputová’s victory has significant consequences for the overall political development. Following the 2016 parliamentary elections, the presidential elections was a second nationwide contest that signaled a transformation of Slovak politics towards a tripolar configuration with a significant role played by the anti-establishment, anti-EU and extreme right parties. Even though two pro-European and democratic candidates succeeded, the proportional electoral system to the national parliament will probably ensure an increased parliamentary presence of antisystem, populist and radical parliamentarians. Presidential executive powers are limited. Nevertheless, President Čaputová will be appointing the next prime minister. Given an increasing fragmentation of the parliament and the likelihood that the next coalition government will consist of several parties, the influence of the president in the process will grow.  

A transformation of the Slovak party scene is likely to be further deepened by the announcement of outgoing president Kiska that he will set up a new political party after his departure from the presidential palace. A recent poll indicated some 9% of voters would “definitely” vote for his party and an additional 31% was “likely” to vote for it. Furthermore, a post-election poll also indicated the rise of Čaputová’s party, approaching double-digit numbers. It is still too early to come to definitive conclusions. Nevertheless, the 2019 presidential elections seem to be a prelude to a far-reaching transformation of the Slovak political scene.

Nigeria: President Buhari hits the ground walking

There were good reasons for President Muhammadu Buhari to seek to make a big impact in the days following his re-election. Having been accused of not having the energy needed to run one of the world’s most complex countries, he has a strong incentive to cultivate a new dynamic reputation. The controversial nature of the elections, which were rejected by the opposition despite his comfortable victory – with Buhari’s main rival calling the polls a return to “military dictatorship” – provide another reason to grasp the political mantle.

The country’s poor economic condition, complete with continuing local resistance to central state authority in parts of the north and also the east of the country, also suggests that urgency is required. One might also expect Buhari, for whom this represents an important opportunity to supplement his existing reputation as a stoical military leader with a degree of democratic legitimacy, to be determined to make the most of his final term in office – Nigeria employs a two-term limit on the presidency, and this has so far been respected by all multi-party leaders in the current political dispensation.

Despite this, the first few weeks of the President’s second term have been anything but dynamic. There have been no fresh initiatives to rebuild bridges with disgruntled members of the Igbo community, some of whom speak of the need to return to the days of Biafra – bringing back memories of the hundreds of thousands of deaths and the widespread suffering that occurred following the attempted secession of the Eastern region in 1967.

The pace of economic reform is also closer to a crawl than a sprint. While the government will increase the national minimum wage from Naira 18,000 to N30,000, after this was approved by the Senate in mid March, it is not yet clear how this will be funded. One option – supported by the International Monetary Fund and the World Bank – is to bolster revenues by increasing and effectively collecting Value Added Tax (VAT). However, while the Chairman of the Federal Inland Revenue Service, Babatunde Fowler, has stated that the government intends to raise greater revenue VAT – potentially from 5 to 7.5% – this plan has been in the background for some time and there seems to be no urgency about implementing it now.

The slow start of the new government appears to be rooted in three main factors.

The first is that the electoral cycle continued after the presidential election, with a further round of sub-national elections, including for local representatives and the influential position of Governors, held in 29 of the country’s 36 states. These contests have been particularly hotly contested, with considerable evidence of electoral manipulation and no little political unrest. As a result, Buhari’s government has invested more effort in consolidating its hold on power than in governing the country.

The second is that Nigeria is stuck in a rut because the most effective policy options available to the government are unpalatable and have been for some time. Many of the policies that might actually generate revenue and so create new possibilities for government investment are unattractive precisely because they would be politically unpopular. Increasing and implementing VAT, for example, would mean asking citizens who feel that their government is failing to provide for them to pay more for the privilege. The response could be similar to that which greeted an increase in the removal of fuel subsidies in 2012 – popular protests and the emergence of a growing sense that the government is part of the problem rather than part of the solution.

The third factor is that President Buhari himself seems to have run out of ideas. Despite the vast amount of money invested in his re-election, there is no evidence that he has the vision or energy required to effectively lead the country. Back during the chaotic reign of President Goodluck Jonathan, Buhari’s focus on order and discipline appealed to ordinary Nigerians fearful of the spread of Boko Haram and unrestricted corruption. Now that the memory of Jonathan is starting to fade, and the country desperately requires a more creative and inclusive development strategy, the former military ruler’s limitations risk being painfully exposed.

Time will tell whether the more reformist elements around the president will be able to impress on him the need to respond more effectively to the popular thirst for change. If not, it could be a long and painful second term for one of Africa’s most powerful leaders.