Tag Archives: Constitutional Change

Burundi – New constitution, new president?

Burundi adopted a new constitution on May 17, 2018 by referendum, with 73 percent voting in favor. The adoption of a new fundamental text was seen by opponents as a move by President Pierre Nkurunziza to extend himself in power by resetting the term limit clock to zero, while by the same token doing away with power sharing provisions from the 2000 Arusha Peace and Reconciliation Agreement. The campaign period was tense and, according to Human Rights Watch, at least 15 people were killed. The opposition called for the outcome to be annulled due to vote-rigging and intimidation, but was overruled by the constitutional court that validated the results.

Against all expectations, at the ceremony for the promulgation of the new constitution, on June 7, President Nkurunziza declared on national TV that he will not stand for reelection in 2020, when his current mandate ends, stating that “This constitution was not modified for Pierre Nkurunziza as the country’s enemies have been saying. It was amended for the good and better future of Burundi and the Burundian people.”

Nkurunziza, in power since 2005 at the end of the civil war that killed 300,000 people, stood for and won a highly controversial third term in 2015 [see previous blog post here]. A failed coup and crack-down against opponents followed, and it is estimated than 400,000 Burundians have since fled the country, out of a population of 10 million. Under investigation by the International Criminal Court (ICC), Burundi became the first country to leave the ICC in 2017.

So what are some of the main changes included in the new constitution? As it appears, a number of provisions for ethnic power sharing have been maintained, while some requirements for power sharing between parties have been eliminated:

  • Burundi returns to semi-presidentialism (the country was previously semi-presidential from 1992 to 1994) with a prime minister as head of government, accountable to both the president and the legislature. The candidature of the prime minister must be approved by both chambers of parliament voting separately (Art. 130), and he or she can be dismissed by a two third majority vote of members of the National Assembly (lower house) – though the president in turn can dismiss the National Assembly (Art. 208). There are no constraints with regards to the ethnicity or the party affiliation of the prime minister.
  • The length of presidential terms is extended to 7 years from five (Art. 97); also, the provision regarding term limits now states that no one can serve more than two consecutive terms – which would seemingly leave open the door for a Putin-like come-back as president after a stint as prime minister.
  • There is now only one vice-president instead of two, who assists the president in the exercise of his or her functions. The vice-president must be approved by both houses of the legislature and must belong to a different ethnic group and party/coalition than the president. Previously, the two vice-presidents had to be from different ethnic groups and parties [from each other, not necessarily from the president]. The First Vice-President was responsible for the coordination of the political and administrative domain, and the second Vice-President for the coordination of economic and social affairs. In the new constitution, the role of the vice-president is left at the discretion of the president.
  • The provision for proportional representation of parties in the cabinet having earned more than 20% of the vote has been removed. The ethnic and gender representation requirements that, overall, at most 60% of cabinet ministers can be Hutu and at most 40% can be Tutsi, and at least 30% must be women (Art. 128) remain in place. Also maintained is the requirement that the Minister in charge of National Defense is not from the same ethnic group as the Minister responsible for the National Police (Art. 135).
  • The parliamentary majority required to pass legislation is reduced from a super majority of two thirds to a simple majority (Art. 180).

While streamlining governing processes – by introducing a prime minister as head of government, removing one vice-president and eliminating the requirement for a super majority to pass legislation – the constitutional changes also eliminate some of the power-sharing provisions enshrined in the 2005 constitution, in accordance with the Arusha Accords. As noted in a previous blog, these power-sharing arrangements had been successful to the extent that: “Today, political competition in Burundi no longer coincides with ethnic cleavages. Furthermore, the dominant party CNDD-FDD, while rooted in a Hutu rebel movement, is no longer perceived as an exclusive Hutu party. In fact, most Tutsi members of parliament are members of the CNDD-FDD and many presidential advisors are Tutsi” (Vandeginste, 2009 p. 75).

However, in the new constitution the representation in government of either of the two majority ethnic groups is still capped at 60% and 40% for Hutus and Tutsis respectively; this does maintain pressure on political parties to be ethnically inclusive (Hutus account for around 85% of the population, Tutsis around 19%, and Twa people around 1%). So not all power-sharing provisions are lost.

The constitutional changes do remove some constraints on the president’s powers and clearly provide greater opportunities for extended stays in the presidential palace. So it is intriguing that Nkurunziza has stated he will not run again in 2020. According to critics, 2020 is still far away, however, leaving Nkurunziza “room to maneuver” in response to “popular pressure” for him to extend his stay in power. That would certainly not be an unexpected development.

Burkina Faso – Interesting constitutional innovations

It’s here – Burkina Faso’s new draft constitution. The constitutional review commission presented the results of its deliberations on January 10th. The 92-member commission — with representation from the ruling MPP-party, opposition parties (including the CDP of former President Blaise Compaoré) and civil society (including labor unions and traditional authorities) — was officially seated on September 29, 2016 by President Roch Marc Christian Kaboré. The commission is charged with proposing a new constitution that will institute the country’s Fourth Republic.

So what is in this proposed new constitutional text? What are its key provisions in terms of presidential power, executive-legislative relations and term limits?

First of all, the intent is to keep a semi-presidential regime, with a directly elected president and a prime minister accountable to the legislature. The president must appoint a prime minister “from within the legislative majority,” after consulting with that majority (Article 66). Those provisions are the same as in the current constitution from 1991, last amended in November 2015 by the National Transition Council.

Interestingly, Article 56 of the new draft constitution specifies that in the event that the prime minister is backed by a legislative majority which does not support the president, “both have to determine by consensus major policy orientations in the greater interest of the Nation.” Article 56 continues: “In the absence of consensus, it is the Government [i.e. the prime minister and cabinet] that determines and conducts the policy of the Nation.” This is an innovation compared to the current constitution.

In other words, in the event of a conflictual cohabitation between a president and a prime minister from opposing parties, executive power would swing to the prime minister. On the other hand, the president would retain the power to dismiss the prime minister “in the higher interest of the Nation” (Article 66), as is also currently the case. As in the present constitution, a new prime minister and cabinet would require legislative approval within 30 days of being appointed (Article 87), through a vote on the government’s policy statement.

The president’s power of initiative to dismiss the prime minister would keep Burkina Faso in the camp of president-parliamentary regimes, per Shugart and Carey’s (1992) definition. The president may also dissolve the legislature and call for new elections (Article 70), but cannot do so again till 12 months have passed since the last dissolution (same as today’s constitution). Conversely, it would only take 25 percent of legislators to initiate a censure vote against the government (Article 115), as opposed to 30 percent in the current constitution.

The president would keep his reserved policy domain, in the area of defense policy. The head of state is the commander in chief and appoints the Chief of Staff of the Armed Forces. The president is thus responsible for determining the strategic orientations of the national defense policy and for chairing the National Defense Council (Article 72). This would be a significant power to retain, in the event of cohabitation.

The proposed constitution maintains presidential term limits at two 5-year terms. It was the attempted removal of this term-limit provision which brought about a popular uprising that led to the fall of former President Compaoré in October 2014. An absolute majority of votes is required to win the election, with a run-off if no candidate is able to secure such a majority in the first round (Article 57). An important innovation is the “locking” (‘verrouillage’) of presidential term limits by including them among those intrinsic democratic elements of the constitution (listed in Article 192) that cannot be changed (along with the republican and lay nature of the state, multipartism, and the integrity of the national territory). Another interesting novelty is the introduction of term limits also for legislators (a maximum of three 5-year terms, Article 101). Furthermore, a deputy may serve a maximum of two terms as president of the national assembly (Article 107).

Finally, changing the constitution without recourse to a referendum would become more challenging: it would require a 4/5 legislative majority of members of parliament (Article 190) to pass changes without the need for a popular vote, compared to 3/4 of the members of the legislature as is currently the case.

Next steps: the draft constitution will be discussed in popular forums to be held in all 13 regions of the country and also shared with the diaspora in countries with a significant concentration of Burkinabe immigrants.  The text will thereafter be given to the president for comment and then finalized by the commission before submission to a popular referendum. It will be interesting to see if the proposed innovations – notably with regards to the division of executive powers in the event of disagreements between president and prime minister from opposing parties – will survive in the final version.

The Philippines – President Duterte Takes Aim … (and Vigilantes Deliver …)

President Rodrigo Duterte’s candidacy when he was campaigning for office was, euphemistically speaking, colourful. Not one to shy from controversy – indeed, he seemed to thrive on generating them – Duterte as presidential candidate likely riled as many voters as he won over. The final election tally showed 16.6 million votes for Duterte, more than 6.5 million higher than the next candidate, Mar Roxas; however, that constitutes only 39 percent of the votes cast. Perhaps as an olive branch to the other 61 percent of the voters, Duterte promised that he would be “presidential” once he takes office, and temper his language, delivery, and modus operandi. That change remains pending, as the recent kerfuffle from President Duterte’s impudent reference to President Obama reveals. Meanwhile, however, the Duterte presidency is on track to deliver on some of the more controversial, and concerning, promises.

Top on that list of the President’s promises are the war on drugs and law-and-order, particularly organized crime. The President pledged in his first State-of-the-Nation address that “we will not stop until the last drug lord, the last financier and the last pusher have surrendered or been put behind bars or are below the ground if they so wish.” As if to make good on that pledge, on August 8, 2016, the President named 159 “narco-officials” – mayors, judges, congress representatives, and police involved in the drug trade – and gave them 24 hours to surrender or be tracked down by security forces; on that cue, police and the military disarmed and relieved those in armed services on that list, and pulled out security escorts for those in government.

Indeed, backed by rewards and the President’s assurance of protection, almost 3000 killings have occurred since the President took office, with about half attributable to vigilantes, the Philippine National Police reported on September 10, 2016. The peril of being gunned down has led an estimated 700,000 to surrender, far exceeding the government’s capacity to rehabilitate or support. Notwithstanding, the President has refused to back away from sanctioning extrajudicial killings; instead, while expressing “cause for concern” regarding the vigilante murders, the Presidential Office has declared the war on drugs a success. And, President Duterte has hit back at the senate inquiry into extrajudicial killings with accusations that the chair, Senator Leila de Lima, is linked to drug syndicates.

On other fronts, President Duterte has also made good on his promise to address corruption in the country, by declaring all appointive offices vacant on August 22, 2016, so that the positions may be staffed with appointments made by the Presidential Management Staff. The move affected thousands, and left in office only those appointed after June 30. The President also followed up on his pledge to work for former President Arroyo’s release from prison: on July 30, the Supreme Court ordered her release on the grounds of insufficient evidence against her. And, President Duterte has approved former President Marcos’ burial at Libingan ng mga Bayani, or “heroes cemetery,” despite protests against that decision. That decision has been put on hold by the Supreme Court, which is hearing arguments on that decision.

The President is largely unfettered: he enjoys the support of a super-majority in the legislature, and has a 91 percent trust rating (by way of contrast, Vice President Leni Robredo has 62 percent). His proposed constitutional change into federalism for the Philippines is unlikely to hit obstacles: to that end, the President has moved towards a constitutional assembly, rather than a constitutional convention, so that lawmakers will draft and approve the changes. The use of a constitutional assembly has ignited concerns that legislators may carve a constitution that will save their jobs rather than the country, but the President has assured the public that there is nothing to worry: he will treat self-serving lawmakers “like drug addicts.” A threat that few have difficulty envisioning, it seems.