Signing of peace agreement is just the start for South Sudan’s broken politics

The signing of a power-sharing agreement between sworn enemies in South Sudan should be a cause for celebration. President Salva Kiir’s tentative deal with his former Vice-President Riek Machar in Khartoum in August is one of the most hopeful things to have happened in the last two years, given the worsening political and humanitarian crises. But it is far from being a solution in itself. The continued mistrust, and the shallowness of the peace process, are in fact real causes for concern.

The situation is remarkable in many ways. Not least is the impact which these leaders’ hostility has had on their fragile country: a third of the population (more than four million people) have been displaced by fighting since 2013, and an estimated seven million people have been affected by food insecurity – some of them severely. The wounds are deep, since these leaders effectively represent the two largest ethnic groups in South Sudan, the Dinka and the Nuer. Politics has become even more polarised along ethnic lines, as have its military forces. There are widespread and well-documented reports of ethnic cleansing, rape, and worse, on the basis of ethnicity. The state forces, the Sudan People’s Liberation Army (SPLA) is increasingly regarded as pursuing the interests of the Dinka group, while Machar’s SPLM-IO (Sudan People’s Liberation Movement in Opposition) is largely a Nuer force.

The two forces fought each other openly in the capital, Juba, in July 2016 as Machar was forced to flee not just government but the country. He ended up in South Africa where he spent more than a year under effective house arrest, while regional powers sought to restore some kind of calm. So his return to government – as agreed on paper at least – seems like even more of an achievement.

The real concern is that the peace agreement has only been initialled under duress from regional powers – President Kiir was strongly opposed to Machar’s release and any role for him in a future government – rather than having some kind of basis in changing relationships. The negotiations have focussed on issues which look more like a carve up of state resources for the elites involved. The number of vice-presidents is being increased to five (with Machar due to return as First Vice-President). Parliament has been increased to 550 members, with the additional seats divided out under the agreement rather than through any kind of election. Even the government itself has ballooned to 45 ministers (again divided out by faction, with most going to the two largest groups). While the country suffers from one of the worst humanitarian crises on the planet, patronage and state capture have taken priority.

From new state to failed state

South Sudan is still celebrated as one of the newest states, having become independent in July 2011. (Independence day celebrations were cancelled this year for the third year running due to lack of state funds.) It achieved its sovereignty after decades of war with northern Sudan, which cost millions of lives. The peace process went remarkably smoothly, with a referendum overwhelmingly endorsing the creation of a new state. Analysts who expected Sudan to somehow overturn the process were proven wrong, even though it meant the breakaway nation leaving with nearly all the oil fields which had started to boost the Sudanese economy. There was considerable international support for the SPLA’s difficult transition from guerrilla movement to proto-state. But the ethnic tensions (exploited by Khartoum during the war) and weak, corrupt, or non-existent institutions were always going to be a huge challenge.

Just over two years after independence, the power-sharing government which ushered in the new state fell apart amid mistrust and rivalry between the two leaders in December 2013. Civilians quickly fled as the ethnic nature of the violence became clear almost immediately. Regional powers brokered an unstable deal – not a good precedent for the current agreement – which allowed Machar to return to the capital. But within months the violence broke out again, in the July 2016 clashes during which he was forced to flee.

Consequences of war

The consequences for South Sudan have been dire – and this was a country already deeply impoverished by neglect and war even before it achieved its independence. Food production has been affected by millions of people fleeing their homes, and insecurity preventing the movement of goods. Famine was declared in parts Unity State in February 2017, exactly as predicted, and only a massive international aid effort prevented deaths on an enormous scale. This year has been worse in ways: the World Food Program (WFP) warned of “alarming” levels of food insecurity  with some communities again just “a step away from famine”. Nearly two-thirds of the population (7.1 million people) were facing severe food insecurity by the end of July. The WFP assisted 2.6 million people in May this year alone.

The link between conflict and hunger in South Sudan has been well documented. It is worsened by continued fighting preventing access by humanitarian organisations. South Sudan has been listed as the most dangerous place for aid workers to operate: 28 were killed last year, bringing the total to more than 100 since 2013.

In terms of displacement, 2.47 million are now refugees in neighbouring countries, with more than a million in Uganda. A total of 1.76 million are internally displaced, with about 200,000 seeking shelter at Protection of Civilians sites in or beside UN bases across the country. The UN Mission in South Sudan (UNMISS) has faced a difficult task in trying implement its complex and multi-dimensional mandate to protect civilians (amongst other things), given the hostile attitude of the government. At the UN Security Council, an arms embargo was finally imposed in July through Resolution 2428, which had failed to get enough votes to pass at its last outing in the final days of the Obama administration. The government meanwhile extended President Kiir’s term of office to 2021 with little fuss in July.

Human rights abuses, sexual violence, and the killing of civilians has continued to deepen enmities and erode trust, even as elites talked “peace” in neighbouring capitals. A report by UNMISS and the UN’s Office of the High Commissioner for Human Rights (OHCHR) documented atrocities in detail in April, in which the SPLA was implicated among others.

First steps in a peace process?

So, an actual peace process was never more needed. The main sponsor has been the regional body of states (including South Sudan itself) known as IGAD (Inter-Governmental Authority on Development). It brokered a cessation of hostilities in December (which is frequently ignored) and effectively gave permission for the release of Riek Machar from house arrest in South Africa in late March (something strongly opposed by President Kiir). Talks principally involving the two groups, along with other less powerful factions, took place in the neighbouring capitals of Ethiopia, Uganda, and Sudan. The agreement was initialled in August by most parties in Khartoum, followed by further renegotiations there with a further deal being initialled at on 30th August. Talks on the implementation matrix continued in Khartoum.

But even if the agreement can be implemented – including the tricky questions of power-sharing and reintegration of Riek Machar’s forces into a national army – the problems are far from over. The deal represents a share-out of jobs and resources for those with leverage, rather than a peace process. There are of course many voices of courage in South Sudan, with the vision, humanity, and solidarity to build a future based on co-existence, despite the very hostile environment for civil society organisations. A deal which involves elites and armed elements seeking to advance their interests is not a peace process which can heal the alarming ethnic polarisation of national politics and everyday life in South Sudan. The importance of a process like this is well understood, but the country is a long way from seeing the leadership which would allow this kind of dialogue to emerge.

 

Suggested Reading:

Arensen, Michael J, 2016, If We Leave We Are Killed: Lessons Learned from South Sudan Protection of Civilian Sites 2013–2016, International Organization for Migration, South Sudan.

Christian Aid, 2018, In It for the Long Haul? Lessons on Peacebuilding in South Sudan, London and Juba: Christian Aid

Concern Worldwide, 2018, Conflict and Hunger: The Lived Experience of Conflict and Food Insecurity in South Sudan

Jok Madut Jok, 2017, Breaking Sudan: The Search for Peace, Oneworld Publications.

Center for Civilians in Conflict, 2016, Under Fire: The July 2016 Violence in Juba and UN Response, Washington DC: Center for Civilians in Conflict.

United Nations, 2018, Letter dated 12 April 2018 from the Panel of Experts on South Sudan addressed to the President of the Security Council, S/2018/292

 

Executive oversight in Russia

 

The Russian State Duma does not have a reputation for grilling executive officials. Especially since United Russia – the Putin-supporting “party of power” – has controlled a majority of seats in the 450-seat lower chamber of the Federal Assembly, the Duma has done little to act as a check on executive behaviour. In that way, it acts as we expect other parliaments do in non-democracies – a source of strength, rather than irritation, for executive actors.

Nevertheless, the State Duma has the formal capacity for some form of executive oversight. During “government hour” sessions, executive officials are invited to respond to questions from deputies. Figure 1 shows the frequency of these sessions, 2005-2017.

Figure 1: Frequency of “government hour” sessions by year, 2005-2017. Source: author’s calculations based on “government hour” planning documents, available from https://pravo.gov.ru (last accessed 14 August 2018).

The mere fact that these nominal oversight sessions take place does not, of course, tell us if this is more than mere performance. A key question is whether deputies ask needling, critical questions.

Another important question is who is invited to be questioned by deputies. One way to classify Russian executive actors is by whether their respective bodies are controlled directly (formally, at least) by the president or the government. According to article 32 of Federal Constitutional Law number 2 from 1997 (with amendments), the president directly controls the Ministries of Internal Affairs, Defence, Justice, Foreign Affairs, and Emergency Situations, as well as a number of federal agencies and services, including the Federal Security Service (FSB). All other executive bodies are formally controlled by the government.

This divide in direct control is found in other states, including Vietnam, the Islamic Republic of Iran, and Myanmar. In the latter, for example, the Constitution states that the military controls a number of core bodies, such as the Ministry of Mines, the Ministry of Border Affairs, and the Ministry of Home Affairs.

We can think of this executive divide in terms of delegation and principal-agent relationships. In most (if not all) regimes, there will be a leader – whether that be, for example, a monarch, president, general secretary, or a collective body, such as a junta. For shorthand, we can refer to them as “autocrats”. At the same time, the executive can contain other actors, to whom responsibility for certain portfolios are delegated. Thus, whereas the “autocrat” likely retains control over sensitive portfolios relating to security and state sovereignty, non-“autocrat” elements of the executive can be delegated portfolios relating to, say, economic policy.

This division is attractive to elites, not least because it allows for blame deflection during periods of economic hardship. The “autocrat” can use other executive actors as a buffer from societal criticism – something that has been on display recently in Iran, where the president, Hassan Rouhani, was recently grilled by legislators over the deteriorating economic situation. The Guardian Council is, therefore, partially shielded from popular opprobrium.

Executive oversight in the legislature also allows “autocrats” to keep tabs on delegated executive portfolios. By subjecting non-“autocrat” elements of the executive to legislative scrutiny, the hope is to reduce possible agency loss – that is, that agents end up pursuing their own interests, rather than those of their principals.

Going back to Russia, we can ask a basic question: Does executive oversight performed by parliamentarians differ when aimed at officials from president-controlled bodies (PCBs) compared to government-controlled bodies (GCBs)?

In a recent article on executive oversight in the Vietnamese National Assembly, Paul Schuler – a political scientist from the University of Arizona – demonstrates that legislators are able to discuss “hot topics” relating to portfolios delegated from the Communist Party of Vietnam to the government. By contrast, “hot topics” relating to the policy areas of those executive portfolios directly controlled by the Party are off limits. The Party, therefore, allows the legislature to engage in executive oversight, but only in areas that will not make the Party vulnerable to direct critique.

Does the same happen in Russia? To get at this, we can ask a simpler question: Are PCB officials subjected to fewer “government hour” sessions in the State Duma than their GCB colleagues? To answer this, Maxim Ananyev – a Lecturer in UCLA’s Political Science Department – Paul Schuler, and I collected data on “government hour” sessions, 2005-2017. Basic information relates to the date of query sessions, as well as the identity of executive officials, and whether they have posts in president- or government-controlled bodies.

The Russian case is particularly interesting, given Vladimir Putin’s stint as prime minister, 2008-2012. Constitutionally barred from holding a third consecutive term in the presidency, Putin made use of the formally semi-presidential nature of the Russian Constitution, moving to the premiership until resuming the presidency in 2012, with Medvedev moving to the prime ministership.

This switch in formal roles is interesting insofar as it means that Putin’s direct control over executive bodies varied over time. Now, some readers will, no doubt, say that formal control means nothing – especially in Russia and especially with regard to Putin. That hunch may well be well-grounded. At the same time, it is an empirical question amenable to study whether Putin’s move to the premiership affected executive oversight behaviour in the State Duma. Indeed, we can generate some expectations. If Putin remained the “autocrat”, 2005-2017, but was not president, 2008-2012, then it is plausible that he would want to use mechanisms to keep tabs on the performance of those bodies he was used to controlling directly – that is, president-controlled bodies – but which were now controlled (formally, at least) by President Medvedev. Executive oversight in the Duma could be one such mechanism. If that were the case, then we would expect to see increased PCB oversight, 2008-2012.

Figure 2 presents data on the percentage of “government hour” sessions involving officials from PCBs by year. The horizontal dashed line marks the percentage of all executive bodies that are controlled directly by the president. If PCBs were overseen at the same “rate” as GCBs (proportional to their makeup of the executive as a whole), then “government hour” appearance figures should fall around this line.

Figure 2: Percentage of all “government hour” appearances involving officials from president-controlled bodies by year, 2005-2017. Bars around data points represent 95% confidence intervals. The dashed vertical lines mark the approximate break points between the Putin and Medvedev presidencies. The dotted horizontal line marks the average percentage of all executive bodies that are PCBs for the period as a whole. Source: author’s calculations based on “government hour” planning documents, available from https://pravo.gov.ru (last accessed 14 August 2018).

The pattern is striking. During Medvedev’s presidency, there was a dramatic increase in PCB oversight. On Putin’s return to the presidency, there was a dramatic decrease in PCB oversight. This pattern is consistent with the idea that Putin used “government hour” sessions to keep tabs on president-controlled bodies during his time as prime minister. It is plausible that he was able to do this, given the stronger ties he had (compared to Medvedev) with legislative agenda-setting actors, such as the State Duma speakers during his premiership, Boris Gryzlov and Sergei Naryshkin. When Putin was president himself, however, PCB oversight was largely lower than would be expected if PCB officials were scrutinised at the same rate as GCB officials (proportional to their makeup of the executive as a whole).

Presidential inaugurations in Russia take place on 7 May. That means that 2008 and 2012 need to be split into Putin and Medvedev periods. Figures 3 and 4 present data on the percentage of “government hour” sessions involving officials from PCBs by presidential periods within these two years.

Figures 3 and 4: Left figure – percentage of “government hour” appearances in 2008 involving officials from president-controlled bodies by president. Right figure – percentage of “government hour” appearances in 2012 involving officials from president-controlled bodies by president. Bars around data points represent 95% confidence intervals. Source: author’s calculations based on “government hour” planning documents, available from https://pravo.gov.ru (last accessed 14 August 2018).

The patterns are consistent with the picture provided by figure 2: PCB oversight was higher during Medvedev’s presidency than during Putin’s presidencies.

One clear alternative reason for why president-controlled bodies might be overseen by legislators with less vigour than government-controlled bodies is that PCBs handle sensitive subjects. The regime leadership might make clear that such topics are off bounds for parliamentary scrutiny. However, if this were the case, we should not observe changes in PCB oversight across the Putin and Medvedev presidential periods, as the sensitivity of executive bodies should remain relatively stable over time. But we, clearly, do not observe this.

There are a few anomalies with respect to the “autocrat” delegation explanation, however. Firstly, 2008 – why did PCB oversight remain low during Medvedev’s first year in the presidency? Secondly, 2013 – why did PCB oversight not fall even more dramatically on Putin’s return to the presidency? And, finally, 2017 – what explains the upshot in PCB oversight?

Along with answering these questions, much more analysis remains to be done. Most importantly, we need to explore whether meaningful oversight of the executive does, in fact, take place during “government hour” sessions. And we need to entertain alternative explanations. For example, might increased PCB oversight during Medvedev’s presidency reflect his preference for more transparency or checks on executive power?

Regardless of the real answer, this preliminary analysis joins the growing body of work challenging the idea that legislatures in authoritarian regimes are merely ‘rubber stamps’. Evidence from Russia suggests this can involve oversight of the executive in parliament, but needling questions are directed at bodies not directly controlled by Putin.

Indonesia – How Political Chips are Aligning for Presidential and General Elections, 2019

With local elections, 2018, mostly done and dusted, eyes are now turned to presidential and general elections, 2019. The 2019 elections in Indonesia will be the first to be see concurrent legislative and presidential elections since direct elections for the presidency was instituted in 2004. The Constitutional Court ruled in 2014 that sequential timing of these legislative and presidential elections was unconstitutional; notwithstanding, on July 20, 2017, the House passed the bill to maintain party thresholds for nomination of presidential candidates; the new law, which mostly follows the previous law, stipulates that only parties or coalitions with at least 20 percent of the seats in the legislature or 25 percent of the popular vote are able to nominate presidential candidate. To account for the concurrent elections, the new law bases the threshold on the outcome of the 2014 legislative elections, which effectively sets the stage for a rematch between the 2014 presidential contestants, Prabowo Subianto, former general and current chair of the Gerindra Party, and President Joko “Jokowi” Widodo. In the following, I trace political alliances since the 2014 presidential elections to show how the political chips are aligning ahead of the 2019 elections.

The 2014 legislative elections saw 10 parties elected into the lower house of the bicameral legislature. The results for that election were surprising in at least one aspect: no parties achieved the level of popular support needed to run independently for the presidential election in July.[1] Given the nomination threshold, intense jockeying proceeded; these became more heated with contentious challenges against the initial quickcount results following the presidential elections in July 2014.[2] By the time of the presidential inauguration in October, the lines were drawn: as Table 1 below shows, three parties fell into the President’s coalition, the Awesome coalition, while six parties that formed a majority comprised the opposition coalition, the Red-and-White coalition. In the course of year after the presidential election, the Red-and-White coalition posed some real impediments to the president’s agenda; at the same time, however, political parties started to peel away from the opposition coalition. By January 2016, only two parties remained in the Red-and-White opposition coalition: the Gerindra Party and the Prosperous Justice Party (PKS); meanwhile, the President’s coalition had grown from a minority of 207 seats to a majority of 386 seats.

Table 1: Indonesian Parties in the Legislature and allegiances between 2014 and 2018

Party 2014 election results (percent votes won) 2014 allegiance (in October 2014) 2016 allegiances
(in January 2016)
2018 allegiance (as of September)
PDI-P (Indonesian Democratic Party of Struggle, presidential nominee President Joko “Jokowi” Widodo) 19 Awesome coalition (President’s coalition) Awesome coalition (President’s coalition)
Nasdem Party (National Democrat Party)  

 

6.6 Awesome coalition (President’s coalition) Awesome coalition (President’s coalition)
Hanura (People’s Conscience party formed in 2006)

 

3.2 Awesome coalition (President’s coalition) Awesome coalition (President’s coalition)
Gerindra (Party Movement Indonesia Raya, presidential nominee is founder Prabowo Subianto)

 

12 Red-and-white coalition (opposition coalition Red-and-white coalition (opposition coalition
Golkar (leading party of the Suharto era)

 

14.9 Red-and-white coalition (opposition coalition Awesome coalition (President’s coalition) Awesome coalition (President’s coalition)
PAN (National Mandate Party) *

 

7.7 Red-and-white coalition (opposition coalition Awesome coalition (President’s coalition) Red-and-white coalition (opposition coalition
PKB (National Awakening Party) *

 

9 Red-and-white coalition (opposition coalition Awesome coalition (President’s coalition) Awesome coalition (President’s coalition)
PPP (United Development Party) *

 

6.3 Red-and-white coalition (opposition coalition Awesome coalition (President’s coalition) Awesome coalition (President’s coalition)
PKS (Prosperous Justice Party) *

 

7 Red-and-white coalition (opposition coalition Red-and-white coalition (opposition coalition
Democratic Party (PD, President Dr. Susilo Bambang Yudhoyono)

 

10 Opposition Opposition In talks with Red-and-white coalition

* Islamic parties

Notwithstanding the President’s majority legislative support, and even though public approval for the President remains at a majority and well ahead of his rival, political turns in the country in 2017 and 2018 suggest weaknesses in the political system or President Jokowi that rivals will exploit.

Foremost among this is religion: religion was used successfully as a strategy to divide the popular vote in the Jakarta gubernatorial elections in 2017, and led to the conviction of former and highly popular governor, Basuki “Ahok” Tjahaja Purnama, for blasphemy in that highly religiously-charged race.[3] The social media campaign, #2019GantiPresiden (#2019ChangePresident) campaign, initiated by the PKS party in early 2018, echoes the anti-Ahok campaign where opposition was aimed at undermining the incumbent candidate rather than providing viable alternatives.

President Jokowi has responded by picking Ma’ruf Amin, chairman of the Indonesian Ulema Council (MUI), the country’s top Muslim clerical body that comprises all registered Muslim organizations. While Ma’ruf’s religious standing strengthens considerably the President’s position in the Muslim community, his convictions are also fiercely orthodox. Indeed, as the chairman of the MUI, Ma’ruf signed a document recommending that the statement Ahok made be considered “blasphemous” for insulting Islam, and he advocates for the criminalization of gay sex.

Meanwhile, Prabowo has officially entered the presidential race with Jakarta Deputy Governor Sandiaga Uno, also of the Gerindra Party, as his running mate. Prabowo has been courting the Democratic Party to enhance popular, if not legislative support: polls show the candidate at a distinct disadvantage against President Jokowi this time around. While former President Susilo Bambang Yudhoyono has yet to commit his support for the pair, he has gone so far as to make clear that his relations with PDI-P’s chair, former President Megawati, impedes any coalition with the President.

Clearly, elections in this third largest democracy in the world, then, remains one to keep watch.

_______________

[1] Yap, O. Fiona. 2014. “Indonesia – Preliminary Results of the April 2014 Legislative Elections.” https://presidential-power.com/?p=1054 April 11, 2014 <accessed 3 September 2018>

[2] Yap, O. Fiona. 2014. “Indonesia – Transparency and Accountability in the Presidential Elections 2014.” https://presidential-power.com/?p=1612 July 14, 2014 <accessed 3 September 2018>

[3] Yap, O. Fiona. 2017. “Indonesia – The Jakarta Gubernatorial Election, Politics, and the 2019 Presidential Elections.” https://presidential-power.com/?p=6369 April 27, 2017 <accessed 3 September 2018>

Analysis of the Mali presidential election process and outcome

This is a guest post by Grant Godfrey, Senior Program Manager, National Democratic Institute (NDI)

Unsuccessful Malian presidential contender Soumaïla Cissé’s claims of fraud have gained little traction, and President Ibrahim Boubacar Keïta’s re-election in the August 12 runoff has been confirmed by the Constitutional Court. Yet hopes that the presidential election would reinvigorate the Algiers peace process may remain unfulfilled; a declining level of citizen engagement leaves the country’s institutions and leaders arguably weaker than in 2013.

Participation[1] fell 6.28 points this year from the record voter turnout of 48.98% in the first round poll of 2013. Runoff participation plummeted over 11 points to 34.42%, the lowest rate in a presidential race since 2002. Despite rapid growth in the voting population—17 percent more registered voters, over 1.1 million more individuals—372,283 fewer Malians bothered to cast a runoff vote in 2018. Explanations for this could include an overall weakening of support for the candidates, dissatisfaction with facing the same choice as in the 2013 runoff, and/or a skepticism as to whether the election would bring any real change to voters’ lives.

The election returns tell a similar story.  With 67.12 %, Keïta won more than two votes for every one for Cissé in the runoff. This is a large and convincing margin, but it may mask citizens’ deeper concerns for their country.  The 34-point victory is still the second-narrowest in a presidential runoff in Mali—only Cissé’s loss to Amadou Toumani Touré in 2002 was closer. Cissé improved upon his 2013 performance by over 10 percentage points, winning nearly 200,000 more votes. He has clearly gained ground with the public.  Keïta, on the other hand, won a second term despite inspiring fewer actual votes than he did five years ago. Runoff votes for Keïta dropped by 562,767. Put another way, for every vote he won in August 2013, almost one-quarter did not support him again this year. This does not place the president in an ideal position to push through controversial measures such as the reforms called for by the Algiers Accord.  Keïta accepted the importance of working with his opponents, soliciting their support in his victory speech. Cissé, however, has continued to contest the final results.

A declining level of voter participation could also reflect a lack of confidence in the electoral process and institutions. For a number of election cycles, both domestic and international observers have recommended reforms that would inspire greater voter confidence in the process, and which have not been pursued.  Some recurring examples include better defining roles and procedures for registering voters and delivering voter cards; considering the creation of a permanent and independent election management body; more transparency in results management, both at the polling station and at the Constitutional Court; and publicizing the CENI’s[2] findings.  Many of the challenges that gave rise to these past recommendations recurred this year.

One positive development in civic engagement in these past elections was the role played by Malian election monitoring groups. These deployed thousands of observers, who monitored all phases of the process. While noting many reassuring points, these groups also illuminated some problems that could undermine public confidence in elections. The Malian observer group Coalition for Citizen Observation of Elections in Mali (COCEM) noted that residents of the central region (where Cissé enjoys significant support) had a more difficult time obtaining their voter cards, generally for reasons attributed to insecurity. COCEM also observed unlawful distribution of “batches” of voter cards in five out of 15 regions (the law allows a maximum of two proxy card withdrawals per person).  On election day, COCEM and others documented areas where voting was cancelled, despite an improved security presence.

COCEM also conducted an analysis of the polling-station-by-polling-station results for each round.  COCEM found that in 393 polling stations (out of 22,675) all the votes went to a single candidate. Among these polling stations, 297 had more than 50 voters, and 112 also had 100 percent turnout.[3]  It may not be surprising that in some Malian communities, everyone votes for one candidate. The 100 percent turnout is arguably more surprising, particularly in an election with low turnout.  In the 297 polling stations with unanimous voting and more than 50 voters, the average turnout was 86 percent; 254 of these polling stations were in areas prone to insecurity—Timbuktu, Gao and Mopti; and 127 alone were in the Timbuktu region, from which a number of Cissé’s complaints to the Constitutional Court emanated. It is important to state that these facts do not prove Soumaïla Cissé’s claim of massive ballot-box stuffing—in 44 polling stations with more than 50 voters, Cissé received all the votes.  Had such fraud taken place, however, these are the types of results (high turnout, mostly for one candidate) it would produce.

The number of votes at issue would not have affected the outcome,[4] but the complaint filed by the opposition provided the Constitutional Court an opportunity to build confidence in the post-election process.  Cissé requested the court produce and examine, for example, the voter sign-in sheet (which could be probative if box-stuffing indeed occurred) for a number of locations alleged to suffer security or other problems, some of which COCEM’s analysis shows voted unanimously. Instead of considering the question of when a combination of insecurity and skewed results warrants closer scrutiny, the court required Cissé to produce a copy of the tally sheet showing that a complaint was made at the polling station by a party representative; however, in 2013 the EU observation mission noted that party agents only received copies of the final count, not of their complaints. If that is still the practice, it would make proof of misdeeds nearly impossible, according to the court’s current jurisprudence. Where Cissé also offered witness testimony, it was not considered sufficient. The court appears to consider the CENI’s reports dispositive; indeed, it is not clear that the court would consider any evidence favorably absent corroboration by the CENI observer. However, without divulging the CENI’s and court delegates’ observations, it is difficult for the public to assess the sincerity of the court’s judgment.

The court’s approach to its decision will thus likely fuel more opposition criticism of the post-election process. Critics could also question the court’s position on transparency measures that were taken in 2018. The court begins its opinion with an aside in which it asserts that requests by national and international observers for access to the center where results are compiled, and for on-line publication of results by polling station, lack a legal basis.  The court reasons that since the law does not affirmatively require these measures, they should not have been taken, and compromise Malian sovereignty. The court ignored Article 11 of the constitution, which states that “Anything not prohibited by law shall not be prevented….” The court’s language was unnecessary to the resolution of the case, the purpose of including it is unclear, and the statements should give Malian democracy advocates cause for concern. The net effect of this resistance to open election data practices could well be to reinforce citizen skepticism and further alienating voters.

[1] Figures for 2013 and 2018 are taken from Constitutional Court decisions. For previous elections, see http://africanelections.tripod.com/ml.html.

[2] The Independent National Electoral Commission (CENI) “supervises” election operations organized by the Ministry of Territorial Administration. CENI is run by a board representing the majority, opposition and civil society. It sends observers to every polling station and provides a report to the President. Its report is supposed to be published in the Official Journal (Electoral Law, Arts 3, 4, 17).

[3] Twenty-one voting stations had 100 percent turnout and voted unanimously in both rounds.

[4] The number of votes cast in unanimous polling stations nationwide totaled 57,449, while Keïta’s victory margin was over 900,000.

 

Ukraine – High Anti-Corruption Court and Prospects for Curbing Corruption

On June 26th, President Poroshenko signed a law establishing the High Anti-Corruption Court. The creation of the body was highly anticipated by both domestic and international observers. The Court is expected to be the last link in the chain of recently established bodies designed to fight top-level corruption in Ukraine and is one of the key conditions to unlock 1.9 billions in IMF aid.

As we previously mentioned on the pages of this blog, it has been a long and rocky road for the fight against corruption in Ukraine. Ukraine’s corruption levels reached an all-time high under the rule of Viktor Yanukovych, who was ousted in 2014 and is currently under investigation. Since being elected in 2014, among other economic, political, and military problems facing the country, President Poroshenko also had to reform the justice system. In the past 4 years, Ukraine established three institutions tasked with fighting corruption in the country – National Anti-Corruption Bureau of Ukraine (NABU), the Specialised Anti-Corruption Prosecutor’s Office, and the National Agency for Corruption Prevention. The role of the newly created High Anti-Corruption Court is to ensure that officials indicted by NABU face trial. Up to now, out of 220 indictments, only 21 officials have been convicted and no senior officials were imprisoned.

Since one of the central demands of the 2014 protests was to eradicate corruption in the country and bring corrupt officials to justice, the lack of convictions has started damaging the credibility of NABU as well as other institutions and governing bodies. According to the nationwide public opinion survey conducted in May 2018,

  • 83% of Ukrainians believe that the fight against corruption in the country has not been successful so far
  • Half of the population (50%) surveyed believe that it is a total failure
  • 48% of the population believe that currently no institution in Ukraine is actively fighting corruption
  • Only 11% believe that the National Anti-corruption Bureau was actively combating graft, but only 15% believe that its efforts are effective
  • Only 4% of those surveyed believe that the President is actively fighting corruption

The new law addressed the criticism previously raised by the IMF and the World Bank and allowed international experts to play a significant role in selection of judges. At the NATO summit in Brussels on July 13, the President confirmed his willingness to allow international experts to be involved asking NATO member countries to provide experts as soon as possible.

However, barely signed, the law was criticised again for allowing a loophole. According to the original law, all politicians and other suspects currently under investigation by NABU would not have to face trial in the newly established anti-corruption court. Instead, they could be considered in ordinary courts. This affected not only 135 cases currently under investigation but also all other cases submitted before the court was established. Given that it may take between 6 months and 2 years before the anti-corruption court is fully established and operational, this would have given significant leeway to a number of corruption cases.

On the urging of the IMF, the original law had to be amended on July 12th to address the criticism. The amendment expanded the jurisdiction of the High Court to include the cases opened before the court was established. Whether the amendments will be enough to unlock the aid from the IMF remains to be seen. More importantly, however, experts agree that the reduction of corruption may require much more than punitive measures alone.

Timor-Leste – “Belligerent cohabitation” at work

One week after the parliamentary elections that returned an absolute majority for the AMP coalition (comprising former president Xanana Gusmão’s CNRT, former president Taur Matan Ruak’s PLP and a youth-oriented KHUNTO) but awarded the current president’s Fretilin the largest bloc of seats in the House (the party being unable to capitalize on its five percentage points increase in the number of votes due to a different composition of running parties), president Lu Olo addressed the nation on the occasion of the 16thanniversary of the restoration of independence (and the first of his assuming the presidency). In his speech, Lu Olo made three very important points

  1. He claimed he would discharge his functions as “president of all Timorese” but would not give up his position as chairman of his own party. This was no more than the confirmation that for the first time Timor-Leste would have a president who is aligned with one specific party, all his predecessors having been “independent” without party ties (although two of them did form their own parties after stepping down, in order to run for the seemingly more powerful premiership);
  2. He stated he would be particularly attentive to “the national interest” of which he argued the president is the highest and more authoritative interpreter;
  3. He reaffirmed is willingness to use all the constitutional powers at his disposal, contradicting those who expected that after a significant political defeat (he called early elections that did not change the nature of the distribution of power among competing parties and his own party failed to secure the bases to form or integrate the new government) he would assume a lower profile

In brief: Lu Olo made it plainly clear his would be a very active presidency not shying away from confrontations when he would feel it necessary to intervene. He was comforted by the fact that a substantial number of cases to overturn a presidential veto require a two-thirds majority  – and his party had more than one third of the parliamentary seats. Cohabitation was emerging under the sign of “belligerent democracy”. A sign of this general attitude was Fretilin´s decision to threaten with expulsion any militant who might be tempted to accept a place in government in a “personal and technical capacity” as had been current in the country for over a decade. A new era is definitively making itself present, eventually making political decisions more transparent and in line with normal expectations on parties’ behaviour.

The first serious confrontation occurred with the formation of the VIII Constitutional Government. Contrary to early expectations (based on declarations in the aftermath of the elections), Xanana declined to assume the premiership, entrusting the job to Taur Matan Ruak (TMR), leader of a much smaller party (8 seats versus 21), and reserved for himself the role of “state minister councillor to the prime minister”. TMR was sworn in as prime minister and proposed to the president a cabinet with 41 full ministers and junior ministers. Lu Olo rejected 12 of those names. One of them was personally close to the new prime-minister, and the refusal was explained on strict bureaucratic terms: as he was serving in the high command of the armed forces, he would need his resignation from the previous post to go through the necessary legal steps. In due course, he was appointed to serve as minister for defence. As for the other 11 – all of whom belonged to Xanana’s CNRT, the only party in the coalition with government experience – the reason given was that two of them had not “the right moral profile” and the others were supposedly under investigation by the judicial authorities on corruption charges.

Although the president denied that he had vetoed names, but only “called the attention of the prime minister” to situations that might harm the public opinion on the government, he also claimed he “was intent on reinforcing the judicial system” by not granting immunity to some politicians that had, in the past, benefitted from their status to avoid immediate prosecution (an allegation directed at Xanana who, as prime minister, had asked parliament to keep some of his ministers under conditions of immunity till the end of their terms). Regarding the use of his powers, he said: “The choice of ministers belongs to the majority in the House. The president may not say that this one is more capable than the other. He has to wait and see, only later can he interfere”. But at some point, he can actually interfere by refusing to appoint ministers.

Lu Olo’s interference in the composition of government generated a first moment of tension within the coalition. The prime minister seems to have accepted the president’s opposition to empowering individuals tainted with corruption charges in a country where this is a critical issue as constitutionally and politically warranted, and showed signs of pressing his coalition partner to propose new names.  TMR was also prisoner of his own public rejection of a minister when the V Government was formed soon after his election for the presidency back in 2012, and thus very limited in his capacity to deny Lu Olo the power to reject some of his ministers. Xanana, on the other hand, received the news as a personal attack, and reacted angrily: he and few other ministers from his party failed to take the oath, leaving the government with sensitive portfolios without their ministers. Besides the strong portfolio entrusted to Xanana, the minister for finances is among those remaining vacant due to presidential opposition. In parallel, he mounted an attack on the president. On the one hand, he claimed he had received undue payments from the state related to his presidential campaign – an accusation that failed to gain traction; on the other, he claimed that not only was the president disregarding the principle of presumption of innocence, but that he had acted in a completely different manner when Mari Alkatiri presented the composition of the VII Government in which four members were also under judicial investigation. He also made public statements from judicial authorities allegedly denying the basis for the president’s attitude.

In the meantime, arguing the inconvenience of the absence of the president from the country at a time when there was only “half a government”, the National Parliament denied the president’s request to undertake a state visit to Portugal which had been scheduled for quite a while. This move was openly criticized by the commander in chief of the armed forces, a move that does not bode well for the neutrality they are supposed to keep, and add a new player to an already confusing situation

The VIII Constitutional government, which is ruling under the provisions of the 2017 state budget in 1/12 monthly instalments, approved a piece of emergency legislation destined to raise funds from the Petroleum Fund in order to meet its financial obligations. However, the sum in question is above the Estimated Sustainable Income of the fund, and expectations are high that the president might use his veto power to put additional pressure on the government, which might be unable to meet its monthly obligations (and therefore suffer in its level of popularity)

At the time of writing, time is ticking for the government to present its program before the House, which must occur within thirty days of the appointment of the prime minister (22 June). Devoid of key ministers, the prime minister has conducted cabinet meetings open to those who have been rejected by the president to help with drafting the program. It is not clear what will happen if the deadline is broken, but grounds might emerge for the president to consider that political institutions are not performing adequately – a case allowing for the dismissal of the prime minister

The tension between the president of the republic and the leader of the winning coalition is unprecedented. It rests to be seen whether Lu Olo and his party are not attempting a political move to break the coalition between Xanana and TMR, who appears to be more sensitive to the president’s arguments on corruption, and suggest a change of horses: Fretilin might be prepared to switch the leadership of the opposition with CNRT. In Dili, voices are heard calling for yet another dissolution of parliament and fresh elections, which in any case could not be decided before mid-November to be held in 2019.

The present situation in Timor-Leste has revealed that presidential powers, even though they may be dormant for a while, do not lapse by virtue of not being exercised. And presidential powers in the country are superior to what much of the literature has argued so far. Critically, the dual responsibility of the government before the parliament and the president of the republic (stated in section 107 of the Constitution), and the ways in which this prescription can legitimately be understood by a proactive president, require new consideration. Ultimately, the scope of effective powers of the president may be regarded as the reason for the current instability, much as the argument has been made for president-parliamentary systems.

The fact that Lu Olo seems to be adopting a proactive role should not be isolated from the fact that he is the first president who discharges his functions at the same time that he holds a high position in a political party – Fretilin – which is not represented in TMR’s government. The effective experience of cohabitation in its formal sense is a novelty, as the first three presidents were “independent”. Their terms were comparably more stable that the early part of Lu Olo’s term (disregarding the case of the 2006 crisis which had deeper roots), adding weight to the suggestion that the political wisdom of choosing non-partisan presidents reduced the prospects and the scope of confrontation that the constitutional model of dual responsibility of the executive might facilitate. With the decision to move away from the legacy of the previous experience, Timor-Leste is now confronted with a much more unstable situation.

Maryia Rohava and Fabian Burkhardt – “Modernizing” the constitution to preempt a succession crisis? Belarus between Kazakhstan, Azerbaijan and Armenia

This is a guest post by Maryia Rohava, University of Oslo, and Fabian Burkhardt, Research Centre for East European Studies, University of Bremen

During the annual state-of-the-nation Address to the Belarusian People and the National Assembly on 24 April 2018, President Aliaksander Lukashenka fiercely rejected the notion that a referendum to amend the country’s 1994 Constitution was imminent. Belarus’ long-time ruler accused the foreign-funded press of peddling constitutional amendments. Opposition politicians calling for a referendum just wanted to provoke a fight and eventually a Ukrainian Maidan. Acting “against the People” by holding a referendum “tomorrow” could lead to the worst-case scenario, “just like in Armenia”, Lukashenka argued. The day before, on 23 April, the Armenian Prime Minister Serzh Sargsyan had resigned in the wake of street protests later called the Velvet Revolution[i].

Lukashenka’s lengthy digression into the intricacies of constitutional politics in the course of his Presidential Address is remarkable. Insofar as it had been precisely Lukashenka – and not the opposition which has been forced into a permanent state of “ghettoization”[ii]– who has been talking about the need to amend the current constitution – or even pass a new one – for the past four years. What does explain Lukashenka’s flirtation with potential constitutional amendments which peaked in the first months of 2018 until mid-April, on the one hand, and the almost complete turnaround on 24 April, on the other?

After all, his current presidential powers are virtually unconstrained, and the term limit was abolished after the 2004 referendum on the constitutional amendments, which turned him in a de facto president for life. Moreover, aged 63, Lukashenka is still relatively young compared to other post-Soviet leaders for life: Kazakhstan’s Nazarbaev, for example (just as Uzbekistan’s Islam Karimov when he died in 2016) aged 78, is 15 years older than the Belarusian leader. In other words, even if we accept that authoritarian leaders outside of monarchies with hereditary succession rules, or without a hegemonic party such as Mexico’s PRI or China’s communist party with institutionalized rules for rotation, need to take care of succession for the sake of their own safety, there is no obvious reason why the succession issue was that urgent as to justify the frequency of references with regard to the Constitution.

Therefore, one might assume that the Belarusian Constitution does have a particular function even though it does not limit executive power and has been violated on numerous occasions. It can be argued that just as in comparable authoritarian regimes,[iii] the Belarusian Constitution has information-related properties which contain a political vision, which defines the nature of the political community, and therefore shapes the identity of the community’s members by signaling and disciplining allies and opponents of the autocrat.[iv] Judging by the discourse on the Constitution in the past four years, there are several tenets at the core of this political vision: the supremacy of the presidency in all spheres touched upon in the Constitution; state sovereignty with regard to the outside world including neutrality in foreign policy, while maintaining constitutional order and stability in domestic politics; Belarus as a social state which guarantees social rights in a paternalistic way, but places the needs of the state and political community over those of the individual; and sovereignty of the people who need to be consulted (at least formally) by referenda if any substantial change was to be probed. However, given the external pressure of a volatile and fast-paced geopolitical environment, and the stalling, or even the end, of the Belarusian model of economic growth[v], Lukashenka and other state actors have recognized that adapting to ever-changing circumstances was necessary.

Calling for a change without changing anything

In the course of the past years, Lukashenka has built up public expectations that sooner or later, constitutional amendments were inevitable. On the 20thanniversary of the Constitution on 15 March 2014, for instance, Lukashenka declared that Belarus had fully “established itself as a sovereign state” by “realizing the aspirations of the Belarusian people of becoming the rightful masters of their home country”. At the same time, “sooner or later, a new constitution needs to be adopted,” – he argued insinuating that the current Constitution is a document of Belarus’ “transitional period”. During his speech addressed to the members of Parliament on 7 October 2016, the head of state went even a step further by calling for the formation of a “group of wise men and lawyers to analyze the Basic Law”. Although in 2017 and early 2018, Lukashenka frequently mentioned how rapidly the world was changing and that the time asked for adaptations[vi] and “something new,” he never really expanded on whenand what kindof changes were expedient.

Moreover, contradictions between the Constitution as theguarantor, core, and foundation of Belarusian statehood, on the one hand, and ever more frequent calls of the regime for amendments to this very pillar became increasingly evident. Discursively, Lukashenka attempted to dissolve this apparent contradiction by distinguishing between the “Constitution” and the “Basic Law” in reference to one and the same legal document. While the Constitution was this very pillar of stability and sovereignty, rhetorically, the Basic Law was not much different from ordinary laws: “We need to understand that law-making is an ongoing lively process. Like all laws and other regulations, it [the Basic Law] is a living organism which is bound to evolve and not to fall behind the pulsating life out there in the world”, he remarked during his annual meeting with the Constitutional Court’s judges on 15 March 2018.

How pliable the official rhetoric was became most obvious in statements of Lukashenka’s mouthpiece Lidziia Iarmoshyna, the chairwoman of the Central Election Commission. In January, she conceded that the Constitution needed to be “modernized”, but this kind of “cosmetics” or “renovation” could only be tackled once the basic question of the overall “construction” was decided upon, of course, by the President. But on 28 April 2018, just after Lukashenka had excluded that amendments were to be launched any time soon, Iarmoshyna admitted that the Constitution contained “a lot of obsolete norms” but that stability was much more important than modernizing these norms as they do not harm and obstruct the Belarusian society.

Also, no working parliamentary group or even a constitutional commission was set up to debate constitutional amendments or reforms in a systematic manner. Lukashenka did mention constitutional issues when addressing the Parliament, the Constitutional Court or the Central Election Commission, but separately. Naturally, this line of action retained the President’s full organizational and informational control over the process by preventing potential collective action or coordination among other state bodies with regard to discussing changes. The Constitution, therefore, served as an ideal issue to debate and signal a desire for evolution while any attempt of revolutionary change could be dismissed and blamed on oppositional and hostile foreign actors.

Cementing the supremacy of the presidency?

After the constitutional overhaul in 1996 and the abolishment of term limits in 2004, presidential power has been de jureand de factounconstrained. The position of the President above all other state organs is bolstered by a “theory of legal laws”[vii] propagated within the presidential administration and accepted in the judicial community. Laws were constitutional if they follow both the will of President Lukashenka and “the People”. They were considered unconstitutional and subsequently ignored by scholars if they did not.

When swearing in Viktar Rabtsaŭ as new constitutional court judge on 2 February 2017, Lukashenko addressed a critique frequently put forward by Belarusian NGOs and international actors that Belarus needed a human rights ombudsperson. In his view, such a position would be entirely redundant, since the President should be the “main inspector” of compliance with human rights principles in the country. Following this logic, the Constitutional Court was ascribed a supportive, but not constraining or limiting function of the presidency.

The law-making process is controlled by the Presidential Administration, and virtually all bills are initiated by the executive. Presidential decrees (dekrety, as opposed to the more mundane ukazy) are frequently used as policy initiatives and policy programs. Among others, this practice has been criticized by the OHCHR Special rapporteur on human rights in the latest report: “The legal framework continues to be amended and governed by presidential decrees, which overrule constitutional law”. Two recent examplesare the 2013-2014 judicial reform and the infamous 2015 Decree No 3 establishing a new tax on unemployment.

First, in an effort to foster the Eurasian integration, Lukashenka used his presidential mandate to introduce the judicial reform of 2013-2014 (Decree No. 6 accompanied by ordinances [ukazy] No.529 and 530) via presidential decrees bypassing the legislature and public debates. The presidential decree No. 6 dated 29 November 2013 made explicit reference to Article 101 of the Constitution. Article 101 stipulates that the President can issue temporal decrees, which have legislative validity, but they require approval of the House of Representatives and the Council of the Republic. Such temporal presidential decrees should not include changes, additions and interpretations of the Constitution and changes and additions of the legislative program. However, Article 97 clearly assigns the constitutional right to propose legislative bills amending the judicial system, judicial procedures and the status of judges to the House of Representatives.

The judicial reform resulted in the incorporation of the Supreme Economic Court into the Supreme Court despite the fact that the autonomy of the Supreme Economic Court is granted by Article 34 of the Constitution, and references to the Supreme Economic Court still remain in the Constitution.[viii] In the review of the judicial reform, the Constitutional Court confirmed the validity of these acts referring to Article 109, Paragraph (3): “The judicial system in the Republic of Belarus shall be determined by the law.” Thus, the interpretation of the law and legislative acts was de facto expanded to temporary presidential decrees. The Constitutional Court has also recognized that the judicial reform would require constitutional amendments. Thus, it appears that it was this somewhat hurried judicial reform that has opened up the Belarusian leadership to the debate on the Constitution back in 2013-2014.

The second example was the Decree No. 3 “On the prevention of social parasitism” from 2 April 2015 which introduced a tax for citizens who did not contribute to funding state expenditure, or did so less than 183 days per year. Therefore, the decree was targeted at unemployed and those employed in the informal economy to prop up state revenue. The reasoning to legitimize the decree was the notion of Belarus as a social state, i.e. contributing financially to social services was portrayed as obligatory. The Belarusian Helsinki Committee argued that the decree violated at least five articles of the Belarusian Constitution, most importantly Article 41, Paragraph (4) (de factointroducing forced or obligatory labor), but also articles 32, 56, and 101.

On the grounds that Decree No 3 violated Article 41 as well as the ILO Convention No. 29 “Convention Concerning Forced or Compulsory Labor, 1930” and 105 “Abolition of Forced Labor”, the oppositional Belarusian Social Democratic Party (Assembly) filed a complaint with the Constitutional Court in July 2015. The Court, however, rejected to review the complaint on the merits as citizens and legal entities are formally not entitled to file a complaint. In the wake of street protests inMinsk and some regions in February and March 2017, the Constitutional Court did react to electronic citizen complaints. While the Court refused to start a constitutional review based on the complaints, it cited legislation and previous decisions of the Court and, therefore, indirectly confirmed the legality of the decree. It made reference to Article 56 of the Constitution and equaled state taxes, duties and other payments to an “unconditional demand by the state” that citizens must comply with following their duty to “contribute to funding public expenditure”. Hanna Kanapatskaia, one of the two independent MPs elected into the House of Representatives in 2016, tried to petition her chamber to file a complaint with the Constitutional Court, but her request got stuck for three months and was formally declined by the House in July 2017.

Decree No 3, therefore, once more highlighted the enormous powers of the presidency to make inroads into key tenets of the Constitution – in this case the notion of the social state. As the state bodies entitled to file complaints with the Constitutional Court are loyal to the president, citizens and other legal entities such as parties are de facto barred from checking the presidency, leaving the street as the only option to vent anger. Lukashenka did not repeal the decree, but complaints and protests did have some results. Among the 470,000 citizens obliged to pay the tax by mid-February 2017, only slightly more than 10% had complied. In March, Lukashenka decided to suspend and reconsider some terms of the decree until 2018. An amended Decree No. 1 was passed on 25 January 2018 which will come into force on 1 January 2019, which, however, also contradicts international and domestic norms on forced and compulsory labor according to an assessment of the Belarusian Congress of Independent Unions.

Overall, there is no reason to doubt that decrees will remain one of the most powerful tools for policy-making by the president. But the apparent lack of feedback mechanisms with the broader population can make its use a costly and, at times, even risky business.

Debating foreign models of constitutional amendments

There is evidence that Lukashenka and his entourage are actively monitoring constitutional amendments in the post-Soviet space aimed at bolstering the regimes of the incumbents, in particular Azerbaijan, Kazakhstan, and Armenia. This might indirectly implicate that there are clandestine considerations about how to gradually adapt the current institutional setting and therefore to preempt a potential succession crisis.

In July 2016, Azerbaijan’s President Ilham Aliev announced constitutional amendments that were later approved by the Constitutional Court and put to a national referendum on 29 September 2016. The amendments prolonged the presidential term from 5 to 7 years, introduced the post of First Vice President and Vice President, and strengthened the presidential mandate with the right to dissolve the Parliament. Azerbaijan’s model of constitutional changes included even less than a three-month turnaround of amending the Constitution (from announcing the proposal to organizing a national referendum), a package of constitutional amendments presented to the public that removed a number of obstacles with just one plebiscite and a maximized national campaign, opening additional polling stations in Azerbaijani embassies, to legitimize the referendum results.

About the same time, after the Belarusian parliamentary elections in September 2016, the Liberal Democratic Party (LDP), a pro-government party, and its leader Haidukevich proposed changing the terms of office for members of Parliament from 4 to 5 years and extending the presidential tenure from 5 to 7 years by means of a nation-wide referendum which would coincide with local elections in early 2018. Although this initiative evaporated rather quickly, at the time analysts believed that the LDP’s proposal of a referendum had official backing. The prolongation of presidential term limits was discussed with regard to the 2020 electoral cycle when both parliamentary and presidential elections will coincide. Combining a referendum on the extension of presidential term limits with local elections in 2018 could have postponed the next presidential elections until 2025. Another option still in the cards would be an early presidential election in 2019 in combination with a referendum.

The 2017 constitutional reform in Kazakhstan caught Lukashenka’s particular interest. During an official meeting with Nazarbaev in March 2017, just a week after the constitutional amendments were signed into law, Lukashenka commented: “Very often, I observe, analyze and try to learn from the experience and activities (especially during last months) of your government, and above all the President. […] I think that you are making important steps for Kazakhstan to sustain stability and independence of your country. You are trying to reinforce your reforms, especially those with regard to the government and constitutional amendments, with concrete economic steps. This is a great example for others.”

Contrary to previous constitutional amendments aimed at expanding presidential powers, the 2017 reform redistributed 34 presidential powers between different branches of government, strengthening the role of the Parliament and enhancing the separations of powers principle. Moreover, procedurally the process was much more open and at least formally consultative than the Azerbaijani maneuver. Draft constitutional amendments in Kazakhstan were originally formulated by a special working group, comprised of the members of the government, Parliament, Supreme Court, Constitutional Court, academia and civil society, and were discussed publically prior to the approval of the final draft law by a joint session of Parliament. From the Belarusian perspective, this might indeed look like a viable “operation successor” as part of a Kazakhstani “sustainable system,” where Nazarbaev could at one point take over another position – e.g. as a chairman of the National Security Council – whilst a designated successor would secure his safety until the final power transition.

Lukashenka, himself has alluded on multiple occasions that presidential powers should be distributed among other state organs, most importantly the government to strengthen the “power vertical” for the days “when Lukashenka will be no more”. But this power redistribution, he emphasized, is not going to happen anytime soon.

Lastly, with Armenia’s Velvet Revolution in April 2018, the dangers of tinkering with the country’s institutional design clearly outweighed the perceived advantages. Given that Lukashenka had done away with the presidential term limit long ago, the “Armenian model” of switching from semi-presidentialism to parliamentarism with the President indirectly elected by the Parliament was the least relevant in any case. Besides the more obvious lesson that an allegedly popular president can be toppled by street protests rather quickly and unexpectedly when constitutional amendments are perceived as overt manipulations and feedback mechanisms, such as media and polls, are flawed, the Armenian case might have contributed to shelving once again reforms of the electoral code and the party system.

After all, it was the Armenian ruling Republican Party that had nominated Serzh Sargsyan and later lost power to a coalition of parliamentary factions around the new Prime Minister Nikol Pashinyan. From the perspective of Lukashenka, transforming the pro-regime platform Belaia Rus’ into a proper party of power now accompanied by a change of the electoral system from majoritarian first-past-the pole single member districts to a proportional system with party lists carries more disadvantages than simply maintaining the status quo. The Central Election Commission’s Iarmoshyna has made it clear on numerous occasions that amendments to the election law to a proportional or a mixed system would also require constitutional amendments such as the removal of citizens’ right to recall elected deputies (Article 72). Finally, Lukashenka remarked that firmly grounding the notion of the multi-party system in the Constitution would precede any steps of turning Belaia Rus’ into a party. A proper party system, however, would result in “endless debates”, and it was far from clear whether Belarus was ready for this sort of “fist fight”.

Conclusions

Over the last years, the Belarusian President, Aliaksander Lukashenka, has been building up public expectations that amending the Constitution was inevitable.

The reality is different. Despite numerous statements, the Constitution has remained unscathed since 2004. The discussed two examples of the 2013-2014 judicial reform and the infamous 2015 Decree No 3 establishing a new tax on unemployment are just the tip of the iceberg of the law-making done by presidential decrees. However, they showed that touching the Constitution is unnecessary as presidential power can be expandedby laws or decrees. Nevertheless, as the cases of Kazakhstan and Armenia revealed, dealing with the succession issue would involve a decrease and redistributionof presidential powers to other state organs, mainly to the legislature and the government. In the presidential discourse, however, the Constitution is firmly associated with stability, state sovereignty, security, and an evolutionary path of state-building. Opposition groups who have been campaigning for a constitutional referendum such as Gavary Praūdu (Tell the Truth) can thus easily be denigrated as subversive and anti-Belarusian.

In the absence of independent public opinion surveys, there is a vacuum of reliable comparative data that measures regime support. This is not only problematic for researchers working on Belarus[ix], it seems that the regime also struggles to measure people’s attitudes and support for the government and its policies. Given recent events in Armenia of yet another “color revolution” in the post-Soviet space, freezing the status quo and postponing the successor issue by talking about constitutional changes while changing nothing so far has proved to be a successful recipe, at least from the perspective of the Belarusian ruler.

Notes

[i]In December 2015, constitutional changes were designed to transfer significant powers from the Armenian president to the Prime Minister. The presidential term limit prevented Sargsyan from getting elected as President for the third time. By getting appointed by the ruling Republican Party as Prime Minister on 11 April Sargsyan hoped to remain in power, but in vain.

[ii]Bedford, S., & Vinatier, L. (2018). Resisting the Irresistible:‘Failed Opposition’ in Azerbaijan and Belarus Revisited. Government and Opposition, online first: https://doi.org/10.1017/gov.2017.33.

[iii]Ginsburg, T., & Simpser, A. (Eds.). (2013). Constitutions in Authoritarian Regimes. Cambridge University Press.

[iv]Ungated version: Burkhardt, F. (2016). Belarus. In Constitutional Politics in Central and Eastern Europe(pp. 463-493). Springer VS, Wiesbaden.

[v]Dabrowski, M. (2016). Belarus at a Crossroads(No. 2016/02). Bruegel Policy Contribution.

[vi]Frear, M. (2019). Belarus under Lukashenka. Adaptive Authoritarianism. Routledge.

[vii]Partlett, W. (2012). The Dangers of Popular Constitution-Making. Brooklyn Journal for

International Law 38(1), p. 228.

[viii]Kazakevich, A. (2008). Belarus. Nations in Transit Country Reports 2018. Freedom House.

[ix]Rohava, M. (2018). Identity in an Autocratic State: Or What Belarusians Talk about When They Talk about National Identity. East European Politics and Societies 32(3), pp. 639–668.

Edalina Rodrigues Sanches – Cabo Verde: Political leadership in the most exceptional democracy in Africa

This is a guest post by Edalina Rodrigues Sanches: Postdoctoral Research Fellow at Instituto de Ciências Sociais da Universidade de Lisboa.

2018 marks the 43rd anniversary of Cabo Verde independence and 27 years of an exceptional democracy  with a tradition of  free and fair elections as well as peaceful transitions in power.  While historical and geographic factorsmay have facilitated these developments, political institutions such as executive systems, and political leadership have also played an important role.

A stable two-party system

Since the founding multiparty elections of January 1991, Cabo Verde has developed a balanced and stable two-party system in which the  PAICVand the MPDare the major parties. The PAICV is the older party in the system, and a forerunner of the PAIGCwhich was formed in 1956 during the liberation struggle against Portuguese colonial rule. It was the sole legal party during the authoritarian regime that spanned between 1975 and 1990; and it continued to play and important role in the post-transition era.  After losing parliamentary elections in 1991 and 1995, the PAICV won subsequent elections (2001, 2006, 2011) with broad parliamentary support (more than 50% of the seats).  The MPD, the second party to become legal in the country, was formed in 1990 during the critical juncture of democratic transition. It unexpectedly won the founding multiparty elections in 1991 and repeated the win in 1995 and more recently in 2016[1]. In all these polls the MPD managed to secure more than 50% of the potential seats.

Leadership successions within these two parties have been relatively peaceful. In the PAICV, there have been three transfers of power since 1991. In 1993, Aristides Lima replaced Pedro Pires as the new secretary-general and stood as prime-ministerial candidate at the 1995 elections but eventually lost. In 2000, José Maria Neves was elected new party leader, a position he held for 14 out of the 15 years he acted as the country’s prime-minister (2001-2016). This was a period of strong external projection of the country; but, internally, the government faced important challenges namely economic slowdown, rising unemployment, and higher levels of social contestation, particularly between 2008-2015.  In 2014, José Maria Neves announced he was not going to run for the party presidency. This happened before the end of his mandate as Prime Minister and paved the way for the election of a new leader that would also run as prime-ministerial candidate in the 2016 polls. Janira Hopffer Almada was elected the new leader in the highly disputed party primaries of 2014 and became the first female to be elected party leader and to run for prime minister. The party never came together to support her leadership and she eventually lost the 2016 elections but saw her legitimacy as leader sanctioned in the 2017 primaries.

In the MPD, leadership successions have been more difficult. Carlos Veiga’s leadership was marked by economic recovery and good governance but conflicts within the party led to the first scission in 1993 and to the formation of Partido da Convergência Democrático (PCD). In 2000, he decided to step down as both Prime Minister and party leader, and to run as presidential candidate. But in-fighting persisted and led to a new offshoot in 2001 – Partido da Renovação Democrática(PRD). This crisis set Jacinto Santos, the then President of the Praia municipality and member of the Political Committee of MPD, against Gualberto do Rosário, the then Prime Minister. With the 2000 MPD convention ahead, Jacinto Santos withdrew from the leadership race and went on to form the PRD with other party members. The Convention confirmed the leadership of Gualberto do Rosário who was succeeded by Agostinho Lopes (2002-2007), Jorge Santos (2007-2013) and most recently Ulisses Correia e Silva (since 2013), the current Prime Minister.

The key lesson that can be drawn from this is that leadership successions in Cabo Verde – both within the parties and in the executive – have become sufficiently institutionalized, and help maintain regime stability.

Symmetric and stable relations between the president and the prime minister

Cabo Verde has been a semi-presidential regime from the outset of democratic transition. The amendment to the 1990 constitution in 1992 reduced presidential powers to dissolve parliament and dismiss the cabinet, and strengthened the legislative initiative  of the executive[2]. Eight years later, a new revision defined that presidential and legislative elections should no longer be almost concurrent (only one month between them) but were now to be held with a six-monthlag.

When compared to other former Lusophone countries, the Cabo Verdean president is theweakest in terms of formal powers, but his role has never been irrelevant[3]. The overall relationship between the president and the prime minister has been balanced and symmetric whoever is in leadership. One contributing factor is that the rounds of parliamentary and presidential elections held since 1991 have produced successive episodes of unified government in which the same party has the majority in the parliament and in the presidency[4]. The only episode of cohabitation was in 2011 when the PAICV had the majority in parliament and the MPD was able to elect its presidential candidate. Power sharing between Prime Minister José Maria Neves and the elected President, Jorge Carlos Fonseca, generatedpolitical tensions and conflictsover the appointment of state officials and foreign policy issues. Despite this, these two strong charismatic leaders maintained an amicable relationship throughout the period of cohabitation.

Since 2016, “normality” has returned as there is again a situation of unified government. In his second mandate, Jorge Carlos Fonseca has already stated the need for a constitutional revisionthat reinforces democratic institutions as well as social justice.  Following some problems related to the performance of some ministers and the coordination between the different portfolios,Prime Minister Ulisses Correia eventually reshuffled the cabinet.  But in a context of balanced intra-executive relationships, there are signs of increasing contestation from civil society. This year the celebration of Cabo Verde’s independence on July 5 was marked by several protestsin the main Islands and the same happened last year. This time, citizens’ complaints included a broad range of  issues from  unemployment, to regionalisation  and to the Status of Forces Agreement(SOFA)with the United States. With further impending strikes and protests, it remains uncertain how the new political leadership will address social contestation.  So far, the Prime Minister has refused to take responsibilityfor the complaints made, although the rights of individuals to protest  is generally acknowledged.

Notes

[1]Sanches, E.R. 2018. Party Systems in Young Democracies: Varieties of institutionalization in Sub-Saharan Africa. London and New York: Routledge.

[2]Évora, R. 2013. Cabo Verde: Democracia e sistema de governo, in Costa, S. & Sarmento, C. (orgs). Entre África e a Europa: Nação, Estado e Democracia em Cabo Verde. Coimbra: Almedina

[3]Costa, Daniel. 2009. O Papel do Chefe de Estado no Semipresidencialismo Cabo-verdiano, 1991–2007, in Lobo, M.C., & Neto, O. A. (orgs). O Semi-Presidencialismo nos Países de Língua Portuguesa, Lisbon: ICS.

[4]MPD’s cabinets were supported by President António Mascarenhas Monteiro (two mandates 1991-2001) while PAICV’s were supported by President Pedro Pires (two mandates 2001-2011).

Uganda – President Museveni and the politics of quick-fix taxation

At the end of May, Uganda’s Parliament passed the equivalent of a political bombshell. The Excise Duty Amendment Act (2018), to which the President quickly assented, introduced a range of new tax measures, including a one percent duty on mobile money transactions and a daily Ush200 ($0.05) “Over the Top” tax on the use of social media. The popular reaction to these new measures was swift. It started with an explosion of online criticism—on Uganda’s vibrant social media, no less—before taking physical form in the streets.

The vehemence of this response, and the government’s subsequent scramble to “clarify” its position, begs the question, why did President Museveni back such a predictably controversial tax reform? And how do we account for the influence—as well as the apparent limitations—of the subsequent pushback?

The political benefits of balancing the books… by taxing the poor

Uganda has an urgent need to generate more revenue. It lags its East African neighbours, collecting taxes equivalent to only 14 of GDP relative to Kenya’s 18 percent and Rwanda’s 16. At the same time, expenditure continues to outstrip revenue generation, driving the government to borrow more. Although sustainable for now, Uganda’s debts are rapidly accumulating while its interest rate payments to local and external creditors are expected to exceed 12 percent of the total budget this financial year.

The social media and mobile money taxes have the advantage of being relatively easy to administer, and government initially estimated that they would generate revenue worth Ush284bn ($75.9m) and Us115bn ($30.7m) respectively over the coming year, contributing to a budget pegged at Shs32.7tr ($8.7bn). President Museveni has also repeatedly derided social media, declaring that the new taxes could help reduce “gossip”.

Yet aside these benefits, real or imagined, the two new taxes come with clear downsides. First, government critics stress that these taxes are sharply regressive, hitting the poor hardest. The tax on social media use specifically has the further potential to limit access to information. Meanwhile, the tax on mobile money will likely reduce financial inclusion. It is recorded that 23.6m Ugandans use mobile money services—sending and receiving money via their phones—and that 61 percent of these transactions are below Ush45,000 ($12). There is also the very real risk that the mobile money tax will prove self-defeating, reducing the volume of transactions and harming growth—not to mention exacerbating existing inequalities.

There are notable alternatives to the two controversial taxes, which the Ugandan Government could consider. For instance, in its most recent “Uganda Economic Update”, the World Bank details a range of options for raising domestic revenues, recommending in particular a reduction in tax exemptions, estimated to equal between 4.5 and 5 percent of GDP in 2016/17. These exemptions are generally awarded to larger businesses and foreign investors, further accentuating the overall regressive nature of Uganda’s tax regime.

Another related concern is the nature of government expenditure. Excessive spending—notably on Defence, the Office of the President and other non-developmental areas—adds to the overall strain on the budget, and thus to the need for additional revenue. It has not helped that the controversy over the new tax measures coincided with Museveni’s promise that individual MPs will be guarded by military snipers and provided with escort cars to ensure their security. If implemented, this plan would quickly cancel out any contribution the social media and mobile money taxes could make towards balancing the budget.

So why is it that the government insists on widely unpopular, regressive taxes instead of ensuring a more efficient and equitable tax regime? The official justification for exemptions—one that until recently the IFIs themselves endorsed—is that they encourage investment, which then bolsters growth. But analysts of Uganda’s political economy have long stressed the additional, political imperative prompting Museveni’s government to adopt a more discretionary tax policy. Indeed, exemptions are a form of political favour granted to leading economic actors, who then reciprocate through their political loyalty and financial backing of the regime. Similarly, excessive spending on certain, seemingly non-priority sectors is another way for President Museveni to distribute patronage, including to ensure the support of ruling party MPs.

Even with these seemingly skewed political incentives, though, Museveni does have to worry about the broader legitimacy of his government. And following the widespread condemnation of the recent tax reforms, the President blinked. His response suggests the potential influence—but also the limitations—of popular pressure on government decision-making.

The popular backlash, and its significance

Opposition to the social media and mobile money taxes has united a broad coalition, if one most visible around Kampala. Activists, journalists, politicians, comedians, musicians and other social media users took to Twitter with a variety of hastags: #ThisTaxMustGo, #Mobilemoneytax, #SocialMediaTax. This helped kindle the debate surrounding the new measures, which played out across Uganda’s print and broadcast media. It also helped mobilise support for a march through Kampala, called by the fast-rising musician-turned-opposition leader, Bobi Wine. But while a widely known broadcast journalist linked arms with Bobi Wine to protest, the demonstration also drew in large crowds of market vendors and motorcycle taxi drivers, who faced off against armed riot police.

Following the protest, and with a court case pending and an online petition quickly gaining signatures, Museveni changed his tune. Seemingly making up policy on the hoof, he claimed that the one percent tax rate on mobile money “came up by mistake” and that he “signed the law with the error because we could not delay the other measures.” While Museveni refused to change the social media tax nor to scrap the tax on mobile money, he did indicate that the latter would be reduced from one to 0.5 percent.

The government went on to table an amended Excise Duty Bill on 19 July, less than two months after the first was enacted. Activists have vowed to push for further concessions as the legislation moves through parliament. Meanwhile, the Leader of the Opposition, Winnie Kiiza, called for more popular protest against the disputed taxes, noting that without this outside pressure the parliamentary opposition alone was helpless.

Popular protest is not the only factor underlying the government’s partial climb-down. It appears the Cabinet was divided about the mobile money tax rate to begin with, and that government initially underestimated the revenue they could generate through the tax. Yet it is striking that Museveni only mentioned the 0.5 percent rate after the Kampala protests, and with the prospect of further protests looming. This timing, when considered alongside the government’s contradictory and rapidly evolving official position, leaves little doubt that popular protest has prompted the concessions to date, whatever the government may claim to the contrary.

It remains to be seen, though, whether activists can successfully pressure parliament to further amend the new Excise Duty Bill. For that, they will have to win over a large portion of ruling party MPs of whom only a handful have come out openly against the controversial taxes. That said, MPs have also been loath to voice their support for the measures, preferring instead quietly to vote in favour or else de facto to abstain through their absence from the House. Speaker Kadaga, meanwhile, entrusted her Deputy to oversee the vote when the Excise Duty Bill was first passed in May. She tends to delegate in this way when there is controversial and generally unsavoury business to handle.

Although the NRM parliamentary caucus continues to back the President, it may still be possible for popular pressure to open up divisions within the ruling party and, by leveraging those divisions, to win further concessions through parliament. This has happened in the past, notably regarding controversies over health and education spending as well as previous unpopular tax proposals. Such a positive outcome may seem unlikely in this instance, but the previous successes—however partial—show that there is still space to push for more progressive outcomes, even in the context of Museveni’s increasingly authoritarian regime.

Marcelo Jenny – Austria’s President Van der Bellen speaks up

This is a guest post by Univ.-Prof. Mag. Dr. Marcelo Jenny from the Institut für Politikwissenschaft at the University of Innsbruck

Austria belongs to the semi-presidential regime type and the head of state has some strong constitutional powers, but after his election the current president Alexander Van der Bellen has conformed to the familiar role model of Austrian presidents. Of beeing seen as an impartial political authority in reserve by staying away from the day-to-day tug of war between the government and the parliamentary opposition parties. As a consequence the president may be absent from the political news sections for extended periods of time. When Van der Bellen made news with statements on issues of international and domestic policy several times in a row, some started to take notice.

Van der Bellen has been in office since January 2017, after a thrilling election year 2016 that ended with a final win over rival candidate Norbert Hofer from the Freedom Party (FPÖ) in a repeated run-off ballot. The Constitutional Court had annulled the first run-off vote due to voting irregularities. Coming from the most left party in parliament, the Greens, Van der Bellen managed to project himself as a centrist candidate against Hofer who came from the most right party in parliament. Last year’s legislative elections in autumn brought in a right-wing coalition government between the People’s Party led by Federal Chancellor Sebastian Kurz and Hofer’s Freedom Party. Van der Bellen swore in his previous rival Hofer as the new Minister for Transport, Innovation and Technology.

In their presidential campaigns both had been very critical of the planned free trade agreement between the European Union and Canada (CETA), stating that as president they would not sign the treaty. CETA was and still is very unpopular in Austria. Van der Bellen announced last week that he would not sign the free trade agreement after its ratification by the national parliament in June. He clarified that he would not sign now, but rather wait until the European Court of Justice issues a verdict on CETA’s compatibility with European Union law. He is on constitutional safe ground, but it is also a reminder of the president’s political views. The previous government coalition of Social Democratic Party (SPÖ) and People’s Party (ÖVP) signed the treaty, against the opposition of Freedom Party and Greens. The current government parties ÖVP and FPÖ, plus the liberals party NEOS, followed through with parliamentary ratification. The SPÖ now in opposition has strongly come out against the treaty, the Freedom Party now unwillingly backs it.

A step deeper into the thicket of domestic politics was Van der Bellen’s recent statement of support for upholding a tradition of social partnership in social and economic policy law-making. The government had just pushed through a controversial law increasing working time flexibility. The bill by-passed the usual process of pre-parliamentary review by interest groups and experts. While interest groups representing business, traditonally politically close to the two parties currently in government were happy with the new law, the labour union federation and the chambers of labour, close to the Social Democratic opposition, came out strongly against it and organized a demonstration of about 100,000 people (which is extraordinary by Austrian standards). The president was later joined by some ÖVP Land governors who also expressed unease about the government’s rushed, controversy-inducing style of policy-making.

The most recent and strongest statement of disapproval with the government came with Van der Bellen’s criticism of FPÖ party general secretary Harald Vilimsky, a Member of the European Parliament, two days ago. Vilimsky demanded the resignation of EU commission president Jean-Claude Juncker accusing him of being an alcoholic, which led Bellen to call Vilimsky respectless and foul-mouthed. The president also critized the government under Federal Chancellor Sebastian Kurz for remaining completely silent on the issue. Austria currently holds the EU presidency. Representatives from the Freedom Party’s representatives then doubled down on their criticism of Juncker and called on Van der Bellen to return to a position of political impartiality.

The episodes of Van der Bellen speaking up might have come together by coincidence and the media attention the president gets is perhaps an unintended consequence of Federal Chancellor Kurz’s media strategy of making himself rare. It remains to be seen whether Van der Bellen will be frequently drawn into political disputes in the future. Yet they remind us of the new political constellation Austria is in with a leftist president facing a right-wing coalition government.