This is a guest post by Ulrike Rodgers, Senior Program Manager at the National Democratic Institute (NDI), Washington, DC.
Since early 2015, eleven countries in West Africa have held national elections to choose a new president, often coupled with parliamentary elections. The electoral simultaneity is no coincidence. The end of the Cold War in the early 1990s ushered in political change also in West Africa and many countries began organizing multi-party elections. Their newly minted democratic constitutions often opted for five-year presidential and/or parliamentary mandates and gave preference to a strong presidential role. However, many also limit presidential terms to two mandates, a provision that continues to be a source of national discussion and even popular uprisings, such as in Burkina Faso in 2014, when then-president Blaise Compaoré attempted to change it to be able to remain in office.
Twenty-five years after engaging in their democratic transitions, several countries are now taking another look at their constitutional frameworks. As Sophia Moestrup writes, some, like Bénin, Burkina, Côte d’Ivoire, Mali, and Sénégal are seeking to strengthen their democratic institutions, limit presidential powers and reaffirm term limits. Others, like Congo Brazzaville, Rwanda and the Democratic Republic of Congo, appear to be moving in the opposite direction.
Bénin recently reaffirmed its position as a regional beacon of democracy when outgoing president Boni Yayi respected the constitutional two-term limit and did not attempt to win a third mandate. Since then, President Patrice Talon – who won the March 2016 election with a promise of “change” against Boni Yayi’s prime minister and heir apparent Lionel Zinsou – followed through on a campaign promise and appointed a 35-member commission to propose political and institutional reforms, including the option of limiting presidential terms to a single seven-year mandate. The commission, chaired by justice minister Joseph Djognénou, submitted its report at the end of June and promptly triggered criticism. Notably, it was accused of wasting public funds after rumors surfaced that each member had received between 10 and 15 million Francs CFA (about $18,000 to $27,000) for one month of work while the government has curtailed spending in other sectors.
The report unanimously recommends that the president should no longer appoint Bénin’s chief justice, the chair of the superior council of judges (Conseil supérieur de la magistrature), and the chair of the national audio-visual authority (Haute autorité de l’audiovisuel). It also proposes to augment the number of justices serving on Bénin’s constitutional court from seven to nine, extend their mandate from five to nine years, and to limit the number of justices appointed by the president to one, as opposed to currently three. However, the commission was unable to reach consensus on proposed changes to the presidential term limit, even after it postponed the publication of the report by several days. Members had been asked to examine two options: maintain the current two five-year term limit, or replace it with a single six or seven-year term, the latter openly favored by President Talon. Divided over the issue, the commission returned the ball into the president’s court to decide. President Talon has announced he intends to put the question in front of the Béninese people via referendum before the end of the year.
But his proposition may have encountered a sizeable obstacle: Bénin’s constitutional court ruled in October 2011 that presidential term limits could not be changed by way of referendum. The court considered it a violation of the decision of Bénin’s National Conference of February 1990 to declare certain constitutional articles unchangeable, including Article 42, which stipulates a limit of two five-year terms. Nonetheless, while the question surrounding presidential terms may be moot, other proposed reforms, such as setting limits to the president’s influence over the country’s constitutional court, may contribute to strengthening the separation of powers in Bénin and help anchor democratic practices durably in the country’s political DNA.