Tag Archives: Constitution

Poland – President Duda pushes forward with constitutional referendum idea

Earlier this month, Polish president Andrzej Duda once again pushed his idea of writing a new constitution and holding a referendum to consult the population on the most important details. Although 10 & 11 November 2018 (centenary of the declaration of the Second Polish Republic) has already been announced as a potential date and Duda has said that the referendum would include ten questions, neither the content of these questions nor his exact strategic motivation for pursuing this idea are known. Furthermore, the PiS government seems to have its own plans for constitutional reform that may clash with the president’s initiative.

President Andrzej Duda (middle) attends a sitting the Polish Senate – image via wikimedia commons

Poland has one of the more complicated recent constitutional histories in comparison with other countries. Following the roundtable negotiations in 1989, the old Communist constitution was first amended in two steps (among others by creating the office of a president and laying the foundations for the first semi-democratic elections). After the drafting of a new constitution was stalled by parliamentary fragmentation and political polarisation, politicians agreed on the so-called “Small Constitution” in 1992 that set out the relations between the major institutions, yet was far from a full-fledged constitutional document. It was only in 1997 that Poland received a full new constitution that lived up to the name. Since then, there have been no major amendments that would have substantively affected the working of the political system.

The idea of a new constitution is nothing new among politicians of the ruling Law and Justice (PiS) party to which Duda belongs as well. Already in 2005, when the party campaigned on the promise of building a “4th Republic”, a new constitution was proposed but due to the lack of a constitutional majority and fragility of the government this idea was never put into practice. Given the great number of changes to the political and legal system introduced by PiS since they returned to power in late 2015 and the fact that some of these were thwarted by their incompatibility with the current constitution, it is not surprising that this idea has been reactivated. A new constitution (or major changes) would help to both legalise and legitimise the government’s controversial reforms and take wind out of the sails of its critics. Last, both in 2005 and now, the 1997 constitution has been denounced as being the work of “post-communists”, meaning that it was drafted by the Democratic Left Alliance (SLD) as the successor to the Communist party (who PiS, having originated from the Solidarity movement, naturally oppose). Thus, it is relatively clear why PiS politicians want a new constitution. However, it is not entirely clear why the president (not the government) would push this idea. While there are several potential explanations, they are not all mutually exclusive and may only together paint the full picture.

Referenda (or the promise thereof) are a staple in the populist toolbox of political leaders in Europe and beyond. Thus, Duda may simply be preparing for his re-election campaign in early/mid-2020 and use his activism to gain greater supporter among the electorate. By promising a range of 10 questions, this approach differs from that of the government, which has hitherto introduced all changes without consulting the public and rather justified its moves ex-post. Duda may also try to save the position of the presidency within the Polish institutional structure (it has been rumoured that at least one referendum question will concern this issue). The president will be keen to keep the powers of his office, whereas the government is allegedly planning a greater concentration of power in the hands of the Prime Minister (similar to the German system) after consulting with a number constitutional lawyers and academics. Nevertheless, such plans were already mooted under the governments of Donald Tusk (2007-2014) but eventually dropped due to a lack of support among MPs and the public.

The referendum could also be a way for presidency and government to test out public attitudes towards changes without endangering the re-election of the government next year or merely. However, it is difficult to ascertain to what degree they coordinate their actions. Although it is clear that president and government generally agree on the direction of further political reforms, there have been a number of public conflicts that may or may not be genuine.

Irrespective of the fact that using the procedures of a constitution that is portrayed as illegitimate to legitimise a new document is bizarre, president Duda now has to send a request to the Senate (second chamber) and ask for the referendum to be scheduled. The speaker of the Senate and the president’s plenipotentiary for the referendum have already met several times, but it appears that more negotiations need to be completed before the actual request is made. Yet even then it is difficult to predict whether a majority of the public would support any changes to the current constitution. Although the PiS government continues to be relatively popular and the president’s plenipotentiary claims that 80% of Poles want a constitutional referendum, Poles are not particularly keen on politically motivated referenda and may simply not turn up at the ballot box. The last referendum – held on request of then president Komorowski in an attempt to thwart a second-round victory in the presidential elections by Andrzej Duda – concerned the electoral system, political party financing and tax law, but turnout was just 7.8%.

Nigeria – Buhari’s second term ambitions, the Atiku challenge, and the limits of incumbency

President Muhammadu Buhari will, in all likelihood, seek a second term in office. For starters, this is a prospect that is buttressed by much political tradition and precedent; no Nigerian president who lived through a first term has ever walked away from the possibility of a second (at least not willingly).[i] But the president’s desire to retain his office has also been implied by more recent events. Among these are the fact that next year’s budget, which Buhari proposed in November, promises to be Nigeria’s biggest ever, an expansion in spending which analysts have interpreted as designed to shore up his government’s reputation in advance of the 2019 polls.[ii] Along with this has come his de facto endorsement by the state governor’s forum, easily the most influential elite caucused within Buhari’s All Progressive’s Congress (APC) party. With this decisive announcement already secured, an official declaration of Buhari’s intention to contest is almost a formality.

However, taking all of this to mean that Buhari’s second term bid will be a cakewalk would be imprudent. Least of all because a general election is likely to pit him against easily his toughest opponent on Nigeria’s current political stage; namely Alhaji Atiku Abubaker.

There are a number of important details to bear in mind which hint at why Alhaji Atiku might represent a most formidable challenger. Foremost is the fact that he is (in)famously wealthy. This is an especially meaningful quality in a context wherein electoral races are increasingly becoming prohibitively expensive. But aside from (though not unrelated to) his wealth, he has also been a regular fixture on Nigeria’s political stage having both served as Nigeria’s second elected vice-president from 1999 – 2007 and unsuccessfully run for president on three separate occasions (1992, 2007, and 2011).

Atiku’s ubiquity in Nigerian politics has certainly come with its costs. His proximity to an unpopular Nigerian state over such an extended period of time has tainted his reputation and raised numerous question marks about the propriety of his wealth. Critics also point to his having frequently switched party allegiances or, in Nigerian parlance, ‘decamped’ (most recently last month) as evidence of his being conniving or dishonest.

However, his supporters parry accusations of his dishonesty by pointing out that most Nigerian politicians have, at one point or another, decamped and that party switching has effectively become a norm of political behavior in Nigeria’s Fourth Republic, as Nigerian academics have also argued.[ii] Moreover, Atiku’s continuity in Nigerian politics –even if in the form of unsuccessful presidential bids– has allowed him to reinforce a strong base of supporters over time. This formula was put to fruitful use by none other than Buhari himself who, identically, also lost three presidential elections before his victory in 2015 suggesting, perhaps, that in Nigeria’s presidential politics, the fourth time might be the charm.

Atiku has also recently thrown his support behind a number of issues, which are backed by growing constituencies. Of note among these is his fervent support for constitutional reforms to restructure Nigeria’s federal system and allow for a more widely accepted balance between central and local governments. Proponents of these reforms include both national civil society and communities in the oil producing regions of Nigeria, both of which could be important electoral constituencies. Atiku has also recently come out in favor of #EndSARS, a protest movement which has been aimed at disbanding an unpopular police unit known as the Special Anti-Robbery Squad (SARS), and which has largely taken place on Twitter. Weighing-in in favor of proponents of #EndSARS, has shown Atiku to be responsive to the public outcry of a young urban constituency which is increasingly recognized to be an influential ally of opposition candidates in African elections [iii].

But beyond (and perhaps more important than) these personal traits however, there are also important structural factors that make Atiku’s possible bid against Buhari a distinctly viable one. Chief among these factors is the peculiar matter of zoning. Zoning refers to an informal arrangement amongst Nigeria’s political parties which requires that after a president from either the northern or southern half (or ‘zone’) of the country has served two consecutive terms in office, his successor must come from the opposite ‘zone’. This issue partially accounted for northern support in 2015 for Buhari against the re-election bid of former president Goodluck Jonathan, a southerner who, having completed the term of his successor who died in office, was widely castigated by northern politicians for seeking to stay in office beyond the ‘turn’ of his zone. [iv]

The fact that the presidency will remain zoned to the north in the upcoming election means that Atiku will face much less of a challenge from other presidential hopefuls from the south who might otherwise have made threatening incursions into the race. Additionally, Buhari’s heavy handed response to militancy in Nigeria’s oil delta and to the pro-Biafran successions movement in the past two years have not won him very many new supporters in the south, a region which already voted heavily against him in 2015. Taken together, these factors will mean that, in a race against Atiku, Buhari will face a viable challenger in his core base in the north while fighting an uphill battle in much of the south (particularly the south east) where, given Buhari’s unpopularity, Atiku might be deemed a much more palatable choice. An assessment of the above factors, as well as the fact that no similarly viable northern challenger has emerged in the opposition People’s Democratic Party, probably account for Atiku’s decision to jump ship from the APC to the PDP late last month.

In Nigeria’s immediate context, these factors raise the possibility that the 2019 general election could be a hotly contested race that pits two former allies against each other. Politics, of course, makes strange bedfellows but there is no reason to expect that such cohabitation will endure through thick and thin. In more general terms however, the forgoing analyses has also brought to the fore some of the challenges which sometimes make the fact of being an incumbent a double edged sword in increasingly competitive electoral contexts.

[i] Siollun, M. (2009). Oil, politics and violence: Nigeria’s military coup culture (1966-1976). Algora Publishing.

[ii] Omilusi, O., P. (2015). “The Nuances and Nuisances of Party Defection in Nigeria’s Fourth Republic.” International Journal of Multidisciplinary Academic Research, Vol. 3, No. 4.

[iii] Resnick, D. (2012). Opposition parties and the urban poor in African democracies. Comparative Political Studies, 45(11), 1351-1378.

[iv] Owen, Olly, and Zainab Usman. “Briefing: Why Goodluck Jonathan lost the Nigerian presidential election of 2015.” African Affairs 114.456 (2015): 455-471.

Henry E. Hale – Presidential Power in Ukraine: Constitutions Matter

This is a guest post by Henry E. Hale, Professor of Political Science and International Relations at George Washington University

Some observers argue Ukrainian President Petro Poroshenko has been determined to concentrate power in his own hands ever since his May 2014 election and has either failed or not seriously tried to eliminate high-level corruption. Yet nearing the end of his third year in office, he clearly lags far behind where his predecessor, Viktor Yanukovych, was three years into his presidency. Indeed, Ukraine in 2017 remains a much more politically open place than it was in 2013. Why has this been the case?

While leadership styles are clearly part of the story, there is a strong argument to be made that constitutional design is an important part of the explanation. When Yanukovych first came to power, he used his fresh mandate not only to get his own person installed as prime minister (something Poroshenko also achieved) but to establish a strongly presidentialist constitution, one that signaled his clear dominance over the parliament and all other formal institutions. This signaled to Ukraine’s most potent oligarchs and other power networks that Yanukovych was the unquestioned dominant authority and complicated their efforts to challenge him; even if his opponents had managed to win the 2012 parliamentary elections, which they did not, even this position would not have put them in a position to significantly limit presidential power.

Poroshenko’s election, on the other hand, emerged partly out of the discrediting of that very presidentialist model, which with the rise of the Euromaidan came to be blamed for fostering overweening presidential power and its use of brutal force against its own people. Indeed, one of the first moves of the victorious revolutionaries, weeks before Poroshenko’s election, was to restore the constitution that had been in place prior to Yanukovych’s 2010 election. This constitution establishes a division of executive power between the president and a prime minister who is primarily beholden to parliament. Thus while Poroshenko surely would have liked to have more formal power, he was not in position to capitalize on his election win to call for a newly presidentialist constitution.

As a result, Poroshenko’s efforts to augment his own power have been limited by a constitution that leads the country’s political forces to see him as not necessarily the dominant power. While the parliament did vote to confirm his preferred prime minister, his parliamentary majority is at best fragile and does not represent a strong control over parliament, and there is a strong likelihood he could lose control of the next parliament given current patterns of public support. With parliament (and by implication the prime ministership) a major prize, Poroshenko’s opponents thus find it easier to envision a successful move against him even if they cannot capture the presidency itself. And this leads others to be more cautious about placing all their political and economic eggs in Poroshenko’s basket, which further limits his authority in the country.

My sense, therefore, is that Ukraine’s being more democratic about three years after Poroshenko than it was three years after Yanukovych is more about constitutions than about presidential beliefs or capabilities–even in a country like Ukraine, where the rule of law is weak and people frequently question whether constitutions matter at all.

Executive-Legislative Relations and Constitutional Politics in Central and Eastern Europe

This is a post by Anna Fruhstorfer, Postdoc at Humboldt University Berlin, who – together with her colleague Michael Hein – is the editor of the new book Constitutional Politics in Central and Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems, published by Springer VS.

With its changes in the political and economic realm, 1989 to many citizens in Central and Eastern Europe marked a spark of great hope for the establishment of a western-style political, legal, and economic order. The aim of the new elite was the introduction of democracy and the rule of law. One important tool to achieve these goals was that of constitutions. The post-1989 constitution-making processes have also been widely discussed in political science research (Arato 2000; Elster 1993; Elster, Offe & Preuß 1998; Holmes & Sunstein 1995; Kitschelt 1994; Sartori 1997). However, since then it has become apparent that the different countries’ pathways do not fulfill the great hopes referred to above. Either the pathways were longer than initially expected or they reached an impasse due to (semi‑)authoritarianism and a poverty trap. These only partially fulfilled hopes also apply to the development of the constitutional systems (see also Rosenfeld, Sadurski & Toniatti 2015).

Against this background, we analyze constitutional politics in 20 post-socialist countries from two perspectives. We focus on constitutional politics following the implementation of the first post-soviet constitution after 1989 and examine all successful amendments and unsuccessful draft amendments, including failed attempts to establish a new constitution, up until 2015.[1] Thus, we considerably broaden the perspective on constitutional studies, since failed amendment initiatives have hardly ever been studied[2], even though such a “success-oriented” angle significantly narrows the data and information on constitutional processes (see Mahoney & Thelen 2010). We focus on three main research questions: How do democratization or autocratization processes influence constitutional politics and vice versa? Do external actors exert a significant influence on constitutional politics? And: Is the ‘transition paradigm’ still applicable to Central and Eastern Europe?

Constitutional politics after the enactment of the first post-socialist constitutions in Central and Eastern Europe – here used in the narrow sense of constitution-making, constitutional amendments, and the national discourse about the constitution and its changes – have dealt with a broad spectrum of topics. In our analysis of 20 Central and Eastern European countries, we find that there is virtually no individual constitutional subfield that has not been the target of amendments or amendment initiatives in at least one of these countries. With this perspective, the variety of topics has led us to assume that certain patterns of constitutional politics might be distinguished.

Most certainly, we can observe problems of path dependence and action constraints. These have particularly emerged with regard to the democracy-autocracy divide. In particular, Belarus and Russia present a case of a thorough autocratization[3], whereas e.g. in Bulgaria, Lithuania, and Moldova certain constitutional provisions ultimately led to democratic deficits or were not helpful in preventing them. However, we can also see the light at the end of the tunnel, i.e. countries in which constitutional politics can actually make a positive difference. The constitutional amendments pursued in Poland solved severe inter-institutional conflicts, and in Croatia and Slovakia semi-autocratic structures were actually replaced with a democratic constitutional arrangement.

The most important constitutional subfields are legislative-executive relations, national identity and minority rights, and aspects related to EU accession. In this post we focus primarily on the findings concerning the relationship between presidents and cabinets within the executive. We particularly expected to find draft amendments in this realm in countries with conflict-prone constitutional specifications, such as Albania, Croatia, Moldova, Poland, Romania, and Ukraine. And indeed, the question of presidential power, the agent-principal relation between president and prime minister, and questions of negative or positive parliamentarism dominated both constitutional discourses and politics in a number of countries (in particular in Albania, Croatia, Moldova, Poland, Romania, and Ukraine). Whereas in two of those cases the respective problems in the institutional design were solved by means of a thorough constitutional reform (in Croatia) or a new constitution (in Poland), in the other four cases constitutional reforms did not lead to an enduring pacification of institutional conflicts or a higher efficiency of governance. Not surprisingly, Albania, Moldova, Romania, and Ukraine are the countries in our group of 20 cases that witnessed the most serious crises at the heart of their governmental systems.

We believe that these crises, or sometimes even shifts between authoritarianism and democracy, are closely related to constitutional politics. Constitutions can provide the context within which a democracy can thrive (e.g. Bulgaria, Estonia, Latvia, Lithuania, Poland, and Slovenia). However, sometimes constitutional politics also contribute to a failed democratization (Belarus after 1994, Croatia and Serbia until 2000/2001). We see that autocratization virtually appears as constitutional choice by design, in particular by establishing over-powerful presidential institutions (e.g. Albania, especially until 1998, or Belarus). Furthermore, constitutional choices concerning executive-legislative relations can also become a ‘political battlefield’, such as in Moldova or Ukraine, where executive-legislative relations, or in particular the choice between a premier-presidentialism or presidential-parliamentarism, were vigorously debated. Yet, constitutional amendments have not necessarily advanced the countries’ democratic development (as exemplified by the ‘ping-pong game’ in Ukraine or the constitutional and political stalemate 2009–2012 in Moldova). Thus, some of the country studies suggest that not only the degree of democratic quality, but also the direction of democratic development can be represented in a constitution. Aleksandr Lukašenko, Slobodan Milošević, Franjo Tuđman, and Vladimir Putin did not gain their powerful positions only – if at all – by breaking the constitution. The constitutional choices made during early post-socialist transition have instead featured as a necessary condition for their successes. And although the type of governmental system certainly has no clear causal effect on the success or failure of democracy (see in particular, and representative for the debate, Cheibub 2007), the constitutional crises in these countries did center around the question of legislative-executive relations, thus making the type of governmental system the focal point of the constitutional debate regarding the success of democratization in Central and Eastern Europe.

Arato, Andrew 2000. Civil society, constitution, and legitimacy: Rowman & Littlefield Publishers.
Cheibub, José A. 2007. Presidentialism, parliamentarism, and democracy: Cambridge University Press.
Elster, Jon 1993. Constitution-making in Eastern Europe: Rebuilding the boat in the open sea. Public Administration 71(1-2), 169–217.
Elster, Jon, Offe, Claus & Preuß, Ulrich K. 1998. Institutional Design in Post-communist Societies. Rebuilding the Ship at Sea. Cambridge: Cambridge Univ. Press.
Fruhstorfer, Anna & Hein, Michael 2016. Constitutional Politics in Central and Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems. Wiesbaden. Springer VS.
Holmes, Stephen & Sunstein, Cass 1995. The politics of constitutional revision in Eastern Europe, in Levinson, Sanford (Hg.): Responding to imperfection: the theory and practice of constitutional amendment: Princeton University Press, 275–306.
Kitschelt, Herbert 1994. Rationale Verfassungswahl? Zum Design von Regierungssystemen in neuen Konkurrenzdemokratien. URL: http://edoc.hu-berlin.de/documents/ovl/kitschelt-herbert/PDF/Kitschelt.pdf [Stand 2010-07-28].
Köppl, Stefan 2003. Vergebliches Bemühen um Veränderung: Gescheiterte Anläufe zur Reform der italienischen Verfassung. Zeitschrift für Parlamentsfragen, 310–329.
Lutz, Donald S. 1994. Toward a theory of constitutional amendment. American Political Science Review, 355–370.
Mahoney, James & Thelen, Kathleen 2010. Explaining Institutional Change. Ambiguity, Agency, and Power, in Mahoney, James & Thelen, Kathleen (Hg.): Explaining Institutional Change. Ambiguity, Agency, and Power. Cambridge [u.a.]: Cambridge Univ. Press, 1–37.
Rasch, Bjørn E. & Congleton, Roger D. 2006. 12. Amendment Procedures and Constitutional Stability. URL: http://rdc1.net/forthcoming/DCD%20(Chap%2012,%20Amendment%20Procedures,%20Congleton%20and%20Rausch).pdf [Stand 2016-06-21].
Rosenfeld, Michel, Sadurski, Wojciech & Toniatti, Roberto 2015. Central and Eastern European constitutionalism a quarter century after the fall of the Berlin Wall: Introduction to the Symposium. International Journal of Constitutional Law 13(1), 119–123.
Sartori, Giovanni 1997. Comparative Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes. Houndsmills, Basingstoke, Hampshire and London: Macmillan Press Ltd.

[1]  The selection criterion here is that such attempts have at least gone through the formal amendment procedure as outlined by the valid constitution.
[2]  The rare exceptions are Köppl (2003), Rasch and Congleton (2006), and Lutz (1994).
[3]  All references to individual countries refer to the analysis in the respective country chapters in the edited volume (Fruhstorfer and Hein 2016).

No End in Sight: The Endless Cycle of Mercy Petitions in India

The power to pardon is a common one; most heads of state enjoy it. Article 72 of the Indian Constitution confers it on the president: “The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence: (a) in all cases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; and (c) in all cases where the sentence is a sentence of death”. Governors enjoys similar powers at the state level under Article 162: “The Governor of a State shall have the power to grant pardons … [to] person convicted of any offence against any law relating to a matter to which the executive power of the State extends”.

This power to grant pardons has endured several controversies in India. Broadly speaking, they fall in three different categories. Some issues had to do with the “what” question. What is the scope of this power: what does it mean to “pardon”, “remit”, “commute” and so on? Some controversies have had to do with the “when” question: When are presidents and governors qualified to pardon? Can they do so while appeals are pending? Can the same person benefit from these powers more than once? Lastly, a large number of controversies have to do with the “how” question: How should presidents and governors exercise their power to pardon? Is a hearing necessary? What factors should they take into account? Should they be consistent in their decisions to grant or reject pardons? For how long can they hold on to pardon files? Are there time limits on the exercise of this power? At the core of these questions, is the common tension between limited and unlimited power. The power to grant pardons is a constitutional one: it is derived from the constitution. But is it limited? Are their constitutional constraints regarding the manner in which the power may be exercised? India’s Supreme Court has greatly vacillated on these questions. The jurisprudence of pardon in India isn’t in a happy state.

In this blog post, I shall briefly canvas the “what” question. But my focus here is one of jurisdiction, not the meaning of the specific powers enumerated in the two provisions. Presidents and governors, broadly speaking, enjoy similar kinds of powers: Both may grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute sentences. But they do so over different matters, or so it seems. The president’s jurisdiction extends to punishments and sentences awarded under federal laws. The governor’s jurisdiction is limited to those awarded under state laws. In practice, the division isn’t as neat. In India it is common to charge persons simultaneously under laws passed by Parliament and the state legislature. If found guilty, they may be convicted under both types of laws. Their sentences almost always run concurrently. As a result, persons may serve sentences for having violated both central and state laws. In such instances, both the president and governor, it seems, are qualified to consider petitions under Articles 72 and 162. What if a governor pardons a convict while the president rejects her petition? The power of the president and the governor to pardon are plenary in nature: Both are provided for in the Constitution. They do not stand in a hierarchy. As such, one cannot – does not – give way to the other.

The difficulty regarding the scope of the two provisions is further accentuated by the reference to death sentences in Article 72. The provision confers “in all cases where the sentence is a sentence of death” the power on the president to suspend, remit or commute it. Death penalty is legal in India, and both federal and state legislation may prescribe it for various offences. Because state legislation may also prescribe the death penalty, governors under Article 162 retain the power to deal with such sentences in appropriate cases. But this creates an uneasy situation. How may one reconcile Articles 72 and 162? One way is to read Article 72 exclusively. It says that the president has the power to commute death sentences “in all cases”. Perhaps it means what it says: the president will deal with all cases of the death penalty.

There are two problems with this: one has to do with interpretation; and the other with practice. The problem of interpretation is an obvious one. Conferring exclusivity to the president on death penalty matters implies that Article 162 doesn’t mean what it says. Governors under this view wouldn’t enjoy the authority to deal with death penalty matters even if the sentences are pursuant to laws enacted by state legislatures. The second problem has to do with practice. Since 1950, governors have routinely exercised their authority under Article 162 to commute death sentences. The “exclusive” interpretation was never taken seriously. Consequently, presidents and governors have in many instances dealt with the same mercy petitions.

Usually, convicts take a serial approach. They petition the governor first. If they succeed, the matter ends. If they fail, they approach the president. The constitution doesn’t specify the number of times convicts may approach the governor or president for mercy. The conventional understanding is that they may do so more than once, provided “new matters” that deserve to be considered. New revelations, even hearsay ones, delay etc have been treated as new issues that make a fresh mercy petition worthy. A farcical script was recently played out in India. Yakub Memon was convicted and sentenced to death for this role in the serial blasts that rocked Mumbai (Bombay) in early 1993. This sentence was upheld the High Court and the Supreme Court. As the day of execution neared, a flurry of petitions were filed with the president and the governor. Soon after the governor rejected it, a new one was filed with the president. The governor’s rejection was deemed to be a “near circumstance” for approaching the president. Soon after the president rejected it, Memon’s lawyers approached the Supreme Court arguing that his petition was wrongly rejected. The court dismissed the matter. This was again used as a new ground and a new mercy petition was filed before the governor. The circle was repeated. On 28 July 2015, judges of the Supreme Court woke up to hear a final challenge against the rejection of this latest mercy petition by the president at 2.30 AM. Couple of hours later that morning, he was finally executed. An exasperated Court asked: should there be limits to the number of times a person may petition the governor or president, and seek a review of those executive decisions?

The constitution doesn’t lay down any limits. Perhaps the challenge lies in the provision itself. What is achieved by allowing the same convict to approach both the governor and the president on the same matter is not immediately clear. An exclusive reading of Article 72 would take away the governor jurisdiction to deal with death penalty cases. One cause of delay will be removed instantly. Presidents would have the sole authority to review these petitions. But that still leaves open the question of numbers: how many times is it acceptable to approach the president on the same matter? Till conventions grow, or some guidelines are judicially pronounced, the circus of mercy petitions is likely to continue.

Abdalhadi Alijla – From Saleh to Hadi: Who destroyed Yemen?

Abdalhadi Alijla is a Swedish-Palestinian academic and the Regional Manager for ‘Varieties of Democracy Institute’ for the Gulf countries at Gothenburg University, Sweden. He is the executive director for the Institute for Middle East Studies, Canada (IMESC).


As the Arabian’s coalition strikes against Yemen stop, a new era starts with the question “What next?” Yemen’s crisis is not a new one. It is not even a crisis of the post-2011 demonstrations against former President Ali Abdulla Saleh. Rather it dates back to the 1960s. On many occasions, violence has been part of the atmosphere, yet it was managed through the common ground political equation and the strong informal institutions of Yemen (Tribal system). In most of the previous Yemeni crises and the current crisis, the causes have their roots in the political system, specifically the Head of the State.

In the 1960s, the Republic of Yemen in San’a fought against royal forces for about seven years. It ended with a so-called national reconciliation. After southern Yemen’s independence from Yemen in 1967, two wars between the south and the north erupted in 1972 and 1979 respectively. In 1982, the People’s Conference was established, setting its agenda as the unity of the two Yemens. As a result, a new commission and supreme council were established by the conference. A ministerial joint committee worked together until unity was achieved in 1990. They set a time period of two and a half years as a transition phase to merge institutions. The unification agreement included the decentralization of institutions, neutralization of the military, a modern electoral system, and new local governance arrangements. The two leaderships signed the agreement in Amman in February 1994. In the summer of 1994, a new war erupted between the military of the two countries and ended with a defeat for southern Yemen and its socialist party.

The historical legacy of fragmentation in each part of Yemen and the proliferation of militias based on ethnicity and tribalisms suggest that what is currently happening in the country may bring about something worse than what we could have expected.

The latest data from ‘Varieties of Democracy Institute’ shows that there is a huge crisis of the executive in Yemen. V-Dem has collected a unique database of data on democracy from 1900 until today. The aim of the project is to provide better and clearer measures of democratic development for practitioners, academics and policy-makers. Using V-Dem data, we can measure the role of the executive in undermining democracy and peace in countries such as Yemen.

In the following graphs (Graphs Nos. 1 and 2), V-Dem data show how Head of States in both South Yemen and Yemen respected the constitution from the 1950s until 2012. Surprisingly, the Head of the State (Ali Abdullah Saleh) had violated most provisions of the constitution without any legal consequences after the unification of South Yemen and Yemen. Comparing that to the pre-unification agreement in 1990, Southern Yemen had a higher ability to take legal measurements whenever the executive violated the constitution. The second graph shows the Head of the State’ s ability to propose legislation. According to V-Dem data, the Yemeni president could propose legislation in all policy areas or share this power with the legislature.

Within a society such as the Yemeni society where informal institutions, tribalism, nepotism and patrimonialism prevail over good governance and respect for laws and the constitution, the Yemeni president undermined democratic values and liquidated the constitution by appointing relatives to the military and high official posts. Not only that, but he founded and organized paramilitary troops that are loyal to him, violating the constitution signed in 1990 that states that only minister of defense manages and controls the military of the state.


Ymen_Propose legislation

More surprisingly, after the unification of the south Yemen and Yemen, the level of judicial constraints on the executives (Head of the State, Head of Government and Ministers) decreased significantly in south Yemen and by a few degrees in Yemen (Graph 3 below). This can be explained by the collapse of the unification agreement. The war in 1994 between south Yemen and Yemen (after the unification) ended with the defeat of the socialist party. After the war, the South Yemen governmental and formal institutions collapsed, and the People’s Conference took over south Yemen. After that, the unification agreement between South Yemen and Yemen ended by amending the constitutions along the lines of a presidential system (not a presidential council as the agreement stated). The new constitution gave the president complete authority over all policy areas, including judiciary and legislative ones. With corruption widespread, Yemen’s president appointed his relatives and loyalists.

YemenJudical constraints

The current Yemeni crisis is not about the Houthi or Iran’s influence in the area. Taking a look at the egalitarian index of democracy (below) for both south Yemen and Yemen, we see a huge difference between the two. The dissatisfaction among southern Yemeni increases as they were excluded from power. “The egalitarian principle of democracy addresses the distribution of political power across social groups, i.e. groups defined by religion, and ethnicity. This perspective on democracy emphasizes that a formal guarantee of political rights and civil liberties are not always sufficient for political equality. Ideally, all social groups should have approximately equal participation, representation, agenda-setting power, and protection under the law, and influence over policymaking and policy implementation. If such equality does not exist, the state ought to seek to redistribute socio-economic resources, education, and health so as to enhance political equality”. As graph No. 4 shows South Yemen had a higher egalitarian index than Yemen. However, after the unification, both countries had a significantly lower egalitarian index which reveals that some part of the population was excluded from some of their political or social rights. With increasing voices by Southern Yemeni for separation, it seems that the unification has failed, not because the population failed, but because the political system failed (1).

yemen Egalitarian

It seems that the present crisis is not a political one linked to the Houthi and political reform, rather a political, economic and societal dilemma between the Southern Yemeni and Northern Yemeni. The complexities of presidentialism in Yemen accompanied by corruption, nepotism and exclusion of the southern Yemeni led to ongoing deadlock. What is needed is a new political system, preferably power-sharing with southern Yemeni to avoid separatists increasing influence among Yemeni, which may not be a good omen for the future of Yemen.

(1) http://www.alaraby.co.uk/politics/2014/11/13/اليمن-خيارات-سياسية-وأمنية-أمام-الجنوبيين

France – Government engages its responsibility on Sunday trading bill

Following a meeting of the Council of Ministers chaired by President François Hollande, Prime Minister Manuel Valls announced on Tuesday afternoon that he was invoking Art. 49-3 of the Constitution in order to try to pass the controversial Loi Macron, which, amongst other things, aims to liberalise the rules of shop opening hours on Sundays.

Art. 49-3 states: “The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph. In addition, the Prime Minister may use the said procedure for one other Government or Private Members’ Bill per session.”

This wording results from a 2008 constitutional amendment. Prior to this time, the ability to use the Article was much greater with no restrictions on how many times it could be used or on what bills.

Following PM Valls’ announcement on Tuesday, the right-wing opposition put down a motion of no-confidence. The vote will be held this evening. The Front de Gauche (Left Font) block in parliament announced that they would support the motion of no-confidence, though individual deputies are unhappy with backing a right-wing proposal and may abstain. By contrast, the Greens have announced that they will not vote for it, though there are divisions within the parliamentary group. Currently, the government has a very slender majority in parliament. However, there were fears that between 40-50 government deputies might rebel and vote against the bill or abstain. This meant that it would most likely have been defeated. Now, given the use of Art. 49-3, as well as the position of the Greens and other deputies, it is highly likely that the government will survive the vote of no-confidence and that the bill will be passed.

Art 49-3 is so controversial partly because it raises the possibility of a bill being passed without it being formally approved by parliament and partly because even if there is a debate the bill may be passed not on its own merits but because of the desire to see the government remain in power. What is more, the use of Art. 49-3 immediately stops any debate in parliament and means that if the bill is passed, then it is passed in the form that it was tabled by the government. In all, it raises major concerns about the abuse of parliamentary democracy.

Art 49-3 was one of the most controversial constitutional innovations of the 1958 constitution. It was one of the features that weakened the power of parliament at the expense of the legislature. As recently as 2006 François Hollande, then in opposition, denounced it as a “denial of democracy’. The 2008 amendment was an attempt to reduce the controversy surrounding the bill. However, as this week’s events have shown, it can still be used to get the government out of a political hole.

In his analysis of French parliamentary procedures, John Huber argues that Art. 49-3 is used primarily as a signalling device to the public (p. 122). It allows the government to signal its policy preferences without risking its survival. What is more, he suggests that it is likely to be used on only the most controversial bills (p. 136). He also predicts that whereas government deputies and parliamentary groups are likely to oppose the bills in debates, they often abstain in the confidence vote itself (p. 137).

The use of Art. 49-3 in the case of Loi Macron confirms all of these intuitions. We have already seen that the Greens are likely to abstain and that PS deputies will fall back in line. What is more, the Loi Macron is clearly an important bill. In some senses, the bill is modest, only liberalising Sunday trading laws after certain conditions have been met. Nonetheless, it is symbolically important and has been criticised by the unions and the left. It must be remembered that the government has been accused of immobilism. The Loi Macron is designed to demonstrate that the government has a reformist agenda. Finally, PM Valls comes from the more social-liberal wing of the Socialist party. Having invested so much in the bill, not least 190 hours of debate in parliamentary commissions and the floor of the houses, he wants to see the bill passed and in a form that he recognises. PM Valls has presidential ambitions and wants to signal to centrist voters that he is someone they can trust.

The use of Art. 49-3 is probably something that the government did not want to have to resort to. There are political costs. It exposes the fact that it did not have a majority in favour of the reform. Nonetheless, it has calculated that benefits of using it outweigh those costs. PM Valls hopes to reap some credit from that calculation.

Coalition Politics in Ukraine: Who is the Formateur?

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President of Ukraine Petro Poroshenko (left) and Prime Minister of Ukraine Arseniy Yatsenyuk (right) Source: Radio Free Europe

Ukraine held an early parliamentary election on October 26th. However, as soon as the polls closed and long before the official results were released, all the attention in the country turned to coalition talks and government formation.

In his address at the end of the election day, the president declared that his team had already prepared a detailed draft of a coalition agreement thus implying that he intended to lead the process of coalition formation.

Three days later, however, the leader of the People’s Front Party, Arseniy Yatsenyuk, citing European practice, pointed out that his party, as the winner of the election, had the right to form the coalition.

Ukrainian parliament is elected under a mixed system, with 225 members elected under proportional representation and 225 members in single-member districts. Preliminary exit polls consistently reported that the People’s Front party had won most of the votes through the proportional representation system. At the same time, it was clear that Petro Poroshenko Bloc would most likely command the largest number of seats in the new parliament overall. The situation posed a dilemma – who should be the formateur?

The Constitution of Ukraine (as amended in 2014) provides little guidance in this situation. Articles 83 and 114 lay out the following rules for coalition and government formation:

Article 83.

According to election results and on the basis of a common ground achieved between various political positions, a coalition of parliamentary factions shall be formed in the Verkhovna Rada of Ukraine to include a majority of People’s Deputies of Ukraine within the constitutional composition of the Verkhovna Rada of Ukraine.

Article 114:

The Prime Minister of Ukraine is appointed by the Verkhovna Rada of Ukraine upon the submission by the President of Ukraine.

The name of a candidate for the office of the Prime Minister of Ukraine is put forward by the President of Ukraine upon the proposal by the parliamentary coalition formed in the Verkhovna Rada of Ukraine […] or by a parliamentary faction whose People’s Deputies of Ukraine make up a majority of the constitutional membership of the Verkhovna Rada of Ukraine.

Release of the official results on November 11th brought even more tension to the coalition negotiations. As expected, six political parties cleared the 5% threshold and gained the right to enter parliament. The People’s Front party topped the board with 22.14% of the vote while Petro Poroshenko Bloc came a close second with 21.82% [1]. However, it picked up a number of seats in single-member constituencies, making the president’s party the largest in parliament.

The first session of parliament took place on November 27th. During the session the parliament re-appointed Arseniy Yatsenyuk as country’s Prime Minister and elected Volodymyr Groysman, member of Petro Poroshenko Bloc, as Speaker.

The 302-member parliamentary coalition, officially formed on November 21st, showed unity during the vote suggesting that whatever disagreements existed among its members have been resolved and that Ukraine has learned from its painful experience in 2005.

The coalition includes all five pro-Western parties in parliament. It has been reported that coalition will be named “European Ukraine” clearly indicating the direction that the country has taken since last November. The coalition currently commands constitutional majority of seats and is one of the largest ever coalitions formed in Ukraine.

Ukraine has a along road ahead facing serious political, economic, and security challenges. How successful it will be in tackling them will depend on how well the coalition works together. However, the most immediate test to the unity of the coalition is the allocation of government portfolios. The composition of the cabinet is due to be announced shortly. For more information on the new cabinet please check back here in a few weeks.

[1] Central Election Commission of Ukraine.


Congo Brazzaville – To change or not to change the constitution? That’s the question

President Denis Sassou Nguesso cannot stand for reelection in 2016. At least according to the current constitution which caps presidential terms at two seven-year terms in office.  Also, the 2002 constitution has an upper age limit of 70 years for presidential candidates, a limit reached last year by Sassou Nguesso.  Amending the constitution would not seem to be an option, as article 185 mandates that presidential term limits cannot be changed.

So for more than one reason the constitution is clearly ‘outdated’ (depasseé), according to Juste-Desiré Mondelé, secretary general of the Party for Unity and the Republic (PUR), established by Guy Wilfrid Nguesso, Sassou Nguesso’s nephew. The solution proposed by supporters of the incumbent head of state is, therefore, to simply replace the current with a brand new constitution, which would usher in the 8th republic. The 8th republic would, according to the president’s supporters, benefit from a return to semi-presidentialism (as in 1992) from the current presidential constitution. According to Sassou Nguesso himself, the question is whether the constitution should be changed in order to ‘strengthen institutions and democracy,’ or not.

Sassou Nguesso has been around for a while. He first came to power in a 1979 coup. He gave up the presidency in 1992 after losing in the country’s first multiparty presidential poll. After five years, in 1997, he came back through a civil war that split the Congolese military in two: the majority of southern officers stood behind then President Pascal Lissouba, while most northern officers (and Angolan troops) backed Sassou Nguesso. In 2002, Sassou Nguesso was elected for the first of his two presidential terms under the current constitution, in a poll where his chief opponents were hindered from standing. In all, the sitting president has spent more than three decades in the presidential chair. Sassou Nguesso has, like Blaise Compaoré of Burkina Faso, played an important role in the resolution or regional conflicts, most recently in the Central African Republic.

Speaking of Burkina Faso, recent events there have given an energy boost to opponents of constitutional change in Congo Brazzaville which the government has quickly tried to dissipate. On November 4th, four days after Compaoré’s fall in a popular uprising against his attempt at changing constitutional term limits, police broke into the home of Clément Mierassa, chairman of the Social Democratic Party of Congo (PSDC). Mierassa was hosting a meeting of the Citizen Movement for the Protection of the Constitution that the authorities claimed had not been authorized; 32 people were arrested, of whom 20 have since been freed. This clampdown did not discourage the Congolese opposition, however, who see the November 4th incident as proof of Sassou Nguesso’s ‘panic’ in the wake of Compaoré’s fall, according to Mathias Dzon, chairman of the Alliance for the Republic and Democracy (ARD).

The Burkina events may, conversely, have cooled the ardors of the ruling Congolese Labor Party (PCT). The PCT had on October 29 announced the holding of an extraordinary leadership meeting on November 7 to discuss and announce its position on a constitutional change ahead of 2016. The expectation at the time was probably that by then Compaoré’s constitutional amendment would have been adopted by the Burkinabe National Assembly, setting a nice example for the Congolese. Instead, on November 9th, the PCT announced it would set up a committee to ‘engage in further reflection’ on the issue of the 2002 constitution. According to the secretary general of the PCT, Pierre Ngolo, the Burkinabe example should not stifle debate in Congo Brazzaville. Compaoré mistakenly tried to force through a constitutional change, circumventing the will of the people. The PCT would never do that, assures Ngolo – if the constitution were to be modified, it would be through a referendum.

In the already politically charged environment of Brazzaville, a former ally of Sassou Nguesso, Deputy Head of Security Services Col. Marcel Ntsourou, was sentenced to forced labor for life on September 11, 2014. Ntsourou was found guilty of the death of at least 22 people in an incident at his residence last year where his guards resisted his arrest by the police. Ntsourou and more than a 100 others, mostly soldiers, are suspected of plotting a rebellion. So there is more than one reason for Sassou Nguesso and the PCT to tread carefully and avoid a frontal attack on the constitution, however outdated they consider the fundamental text to be.

Tanzania’s constitutional review in limbo

Tanzanian President Jakaya Kikwete used his 2011 New Year’s address to announce a long-awaited constitutional review, the first since Tanzania became a one-party state in 1977. Three years on, the process is now on the brink of collapse, mired in partisan gridlock and controversy over the status of the union between mainland Tanganyika the island of Zanzibar.

Current troubles aside, the constitutional review got off to an auspicious start. Shortly after the New Year’s announcement, Parliament passed the government Constitution Review Bill, and in April 2012, Kikwete won praise for his choice of appointees to the Constitutional Review Committee (CRC), the body tasked with drafting the new constitution. In June 2013, the Vice President unveiled a first draft, which was then reviewed by the constitutional councils of each district. In December, the CRC presented a second draft constitution, now subject to approval by a Constituent Assembly (CA) before being put to a popular referendum.

There is plenty to commend in the second draft constitution. It offers stronger protections for human rights, and notably women’s rights. It also incorporates a number of articles aimed at diminishing the power of Tanzania’s “imperial” president and ruling party, Chama Cha Mapinduzi (CCM). These include measures requiring parliamentary approval of presidential nominations, restricting recent party leaders from becoming House Speaker, and removing the ban on independent presidential and parliamentary candidates in general elections. These proposed changes accord with past recommendations by reform-oriented MPs, keen to transform parliament into an institution “with teeth.”

Such positive elements are lost, though, in the political storm that is now raging over the status of the union. This controversy dates back to 1964 when Tanganyika and Zanzibar, two former British colonies, joined to become the United Republic of Tanzania. The result was a two-government structure. The government of Tanganyika merged with the Union government while Zanzibar retained its own administration. The second draft constitution proposes to replace this two-tier system with a three-government structure, restoring the Tanganyikan government and replacing the Union government with a less powerful Federal administration.

Justice Warioba, chairperson of the CRC, defended the proposed three-government structure, arguing that it is in line with popular opinion and would address concerns over equal representation and resource allocation. CCM has long opposed this remedy, which would likely diminish its power. President Kikwete nevertheless responded to Warioba with a call for partisan unity. “The [CA] is the prime stage towards getting a new constitution,” he affirmed, adding, “The entire group should represent people and not particular interests.”

CCM and President Kikwete did not hold this line for long. Concern over undue party influence exploded shortly after the CA convened to adopt its Standing Orders in February 2014. Members fiercely debated whether to allow closed voting, which advocates argued is essential to the assembly’s independence. President Kikwete exacerbated these initial tensions with his inaugural speech before the CA, which he used to convey a partisan message in favour of a two-government structure.

That was in March. The situation has since deteriorated further. Opposition members have denounced the CA Chair for allowing CCM to dominate committees; mudslinging and vitriol continue to disrupt debate; and in the latest move, the opposition coalition, Ukawa, resolved to boycott the assembly pending reconciliation over the union issue.

With partisan clashes unlikely to abate, the current constitutional review process is beginning to align with a history of CCM-led, top-down reform. The opposition parties might have played their cards better, but the overriding impression is one of CCM dominance and presidential meddling. This situation casts doubt on the basic motivations behind the President’s New Year’s announcement back in 2011. Kikwete’s then newfound enthusiasm for constitutional reform came at a time when the CCM government was working hard to burnish its democratic credentials. The effort was richly rewarded with a state visit from Obama in 2013, during which he praised Tanzania for its commitment to good governance. Critical observers were quick to counter with examples of deteriorating press freedoms and human rights abuses. The criticism didn’t stick, though, and with Kikwete touting its progress before foreign dignitaries, the constitutional review was another score in the government’s favour. The review process is itself now tainted with abuse and threats, however. Partisan controversy aside, members of the disbanded CRC are reportedly being harassed by state security forces while Chairperson Warioba is under constant surveillance.

What started out as a promising reform effort has reached an impasse. The new constitution’s enactment was initially scheduled for April 16 2014, the 50 year anniversary of the Union. The jubilee date will nevertheless be imbued with a different kind of symbolism. Divided and fraught, the CA is set to adjourn on April 25 until August, leaving a question mark hanging over Tanzania’s half-century old Union.