Tag Archives: Constitutional referendum

Mali’s controversial constitutional referendum

Mali was scheduled to hold a referendum on constitutional reform on July 9th. On June 21st, two days before the campaign for the referendum was to start, the vote was postponed sine die following widespread demonstrations. What prompted this resistance to, and ultimate postponement of the planned referendum? What is so controversial about this constitutional revision?

The constitutional changes were meant to implement clauses of the Algiers Peace Agreement signed between the Malian government and former rebel groups in 2015, and to correct “deficiencies and shortcomings” in the constitution. One of the important changes was to be the introduction of a Senate, to give an official role to Mali’s traditional leaders.

On June 3, the National Assembly endorsed the proposed constitutional revisions by 111 votes to 35. Opposition parties voted against the reform, arguing that it strengthens presidential powers unduly. Main concerns include the ability for the president to appoint 30 percent of senators as well as the presiding judge of the constitutional court. Also, the president would be able to dismiss the prime minister at will (effectively transforming Mali from a premier-presidential to a president-parliamentary type of semi-presidential regime).

Following the vote, a platform of political opposition members and civil society activists came together in a determined campaign against the referendum, conducting several demonstrations. The largest of these, on June 17, brought thousands of protesters into the streets of Bamako, who also seized the opportunity to accuse the government of President Ibrahim Boubacar Keita (IBK) of bad governance. With a year left ahead of presidential polls in July 2018 where IBK will stand for reelection, protests appeared to be morphing from opposition against the constitutional reform to a broader indictment of the government. In the face of this resistance, the government bowed to the pressure, at least temporarily, by postponing the referendum.

This is not the first time that constitutional reform in Mali has been aborted at the last moment.[1]  In November 2001, former President Alpha Oumar Konaré called off a referendum scheduled for the following month. Some of the criticisms at the time echo concerns voiced by the opposition to the current revision – notably increased presidential control of the constitutional court (Wing, 457). Also, interestingly, many of the proposed changes this year were included in the constitutional reform effort of former President Amadou Toumani Touré (ATT) that was cut short by the 2012 coup. In 2012, those changes that faced similar, significant opposition included: the introduction of a Senate whereto the president would be able to appoint a significant number of senators; the president’s ability to appoint the chief justice of the constitutional court;[2] and the president’s power to dismiss the prime minister at will (Wing, 462).

Not surprisingly, among the leading opponents today are some of those who most vocally opposed the same constitutional changes back in 2012, including Tiébilié Dramé, the président of the Party for National Rebirth (Parena), and Mme. Sy Kadiatou Sow who leads the joint civil society-political party movement against the constitutional referendum, “An tè A Bana. Touche pas à ma Constitution” (Don’t touch my constitution). These opponents criticize not just the proposed changes, but also the reform process itself for lacking transparency and not being inclusive – criticisms also advanced in 2012 – and for being ill-advised when segments of the population would be unable to vote due to ongoing insecurity. According to Wing (2015), the controversies surrounding constitutional reform in 2012 contributed to the overthrow of then President ATT by further delegitimizing an already unpopular government.

Taking lessons from the past, the government’s decision to postpone the referendum was probably a wise one. In a context where the central government remains week and lacks the ability to exercise its authority across the entirety of the country, it is all the more important that the constitutional reform process benefits from widespread legitimacy. The challenge is now how to ensure that promises made in the 2015 Peace Agreement are acted upon, should constitutional changes be significantly delayed.

[1] See Susanna Wing’s interesting analysis of past troubled constitutional reform efforts in Mali: Susanna Wing (2015), “ ‘Hands off my constitution’: Constitutional reform and the workings of democracy in Mali, “ in Journal of Modern African Studies, 53, 3, pp. 451-475.

[2] The chief justice of the constitutional court is responsible for proclaiming electoral results; also, the constitutional court is tasked with resolving electoral disputes. The president’s ability to appoint the chief justice of the court is particularly controversial with IBK up for reelection in 2018.

Eugene Huskey – Plebiscitarianism and Constitution-Making: The December 11, 2016 Referendum in Kyrgyzstan

In a referendum that generated fierce opposition from critics of Kyrgyzstani President Almazbek Atambaev, voters approved 26 revisions to Kyrgyzstan’s constitution on December 11, 2016.[i]  It was the seventh constitutional plebiscite since the adoption of the country’s original post-communist constitution in May 1993, making Kyrgyzstan the regional leader in employing the referendum to change its basic law.[ii]  Sunday’s constitutional referendum was paired with voting for local assembly elections in Kyrgyzstan’s 21 cities, elections that gave a plurality of seats to candidates from President Atambaev’s party, the Social Democrats.

With only a year remaining in his single, six-year term, President Atambaev had presented the amendments to the nation as a means of “idiot-proofing” the Constitution, that is, introducing further safeguards to ensure that the office of the presidency would not be abused by his successors.[iii]  Many elements in the country’s political class and civil society, however, found his explanations unconvincing.  In an unprecedented move, Atambaev’s former colleagues in the Interim Government of 2010–among them former President Roza Otunbaeva and Omurbek Tekebaev, the de facto father of the 2010 Constitution–signed a collective letter condemning any attempt to revise the constitution before 2020, the date set by the Interim Government for the earliest constitutional revisions. President Atambaev responded almost immediately to the letter with an intemperate speech, the harshest of his presidency, which accused his former colleagues of spreading “malicious lies.” He then reminded them that they could be held to account legally for their misdeeds in office six years earlier.  He concluded by assuring the nation that he had no intention of seeking any formal political post after his departure from the presidency in 2017.[iv]

Besides regarding the plebiscite as premature, many critics of the President objected to specific amendments proposed to the Constitution.  Some revisions strengthen the powers of the prime minister vis-a-vis president and parliament by granting the head of government the sole authority to remove ministers as well as local and regional heads of administration.  The prime minister and his deputy will also be able to retain their seats in parliament.  Previously the prime minister and deputy prime minister had had to relinquish their parliamentary seats on assuming executive office.  The referendum included only one seemingly innocuous revision to the presidency itself—changing the name of the presidential defense council to the security council.  Given the existing authority of Kyrgyzstan’s president, which is based largely on his direct popular mandate and his appointment and oversight of the power ministers, the enhancement of the prime minister’s office should produce more complex challenges of cohabitation than had existed heretofore.

Another basket of constitutional amendments sought to increase the stability of the Government in a country that had seen six prime ministers in the first six years of what had been touted as a “parliamentary republic.”  In order to leave a ruling coalition, the revised constitution will now require two-thirds of a party’s deputies to approve the rupture in a written ballot.  Although this amendment and some others were reasonable responses to the inefficiencies that plagued the current system, many critics viewed the enhancing of the prime minister’s role as a means of preparing a landing place for President Atambaev or a Social Democratic politician who would be under his influence.

In order to win support for the referendum from moral traditionalists and ethnic Kyrgyz nationalists, whose ranks often overlap, President Atambaev and his supporters included several amendments that responded to the rising populist tide in the post-communist world and beyond.  This effort included a reworking of Article 1 of the 2010 Constitution, which contained a simple, one-sentence statement of the country’s basic principles, notably the state’s secular, law-based, and democratic character.  The proposed alternative had nine separate points, several of which echoed nativist and socially conservative trends in Russia.  Among the country’s “highest values” in the newly-revised Constitution are “love of country,” “the development of the national [Kyrgyz] language and culture,” and, perhaps most worrying for the opposition, “a respectful attitude toward the country’s history,” a phrase that the Russian authorities have used to condemn domestic and foreign critics and that the Kyrgyzstani government could potentially employ to silence unpopular interpretations of events such as the inter-ethnic violence in Osh in 2010. The constitutional revisions also included an explicit ban on gay marriage.

As part of an ongoing backlash against international criticism of the Kyrgyzstani government’s handling of the violence between ethnic Kyrgyz and Uzbeks in Osh, President Atambaev included among the constitutional amendments a revision to Article 41.  That article had allowed citizens of Kyrgyzstan to appeal to international human rights bodies if they believed their rights had been violated.  If the international tribunal upheld their complaints, the Kyrgyzstani government was obligated to restore their rights or compensate them for damages.  In the runup to the referendum, President Atambaev had been openly critical of the decision of the UN’s Committee on Human Rights, which called on the government of Kyrgyzstan to free an ethnic Uzbek condemned to life imprisonment.[v]

Constitutional Referendums in Kyrgyzstan[vi]

Although the proposed constitutional amendments were approved by an almost 80 percent Yes vote (see table above), this result was a record low for Kyrgyzstan.  Moreover, only 42 percent of the population turned out to the polls on a day when both the referendum and local elections were on the ballot.  Thus, only slightly more than a third of eligible voters in Kyrgyzstan voted for the constitutional revisions.  Turnout was especially low (28%) in the southern city of Osh, where almost half of the population is ethnic Uzbek.  Taken together with the historically low turnout, a tally of invalid ballots that reached five percent suggests a considerable measure of popular discontent with President Atambaev’s decision to revise the 2010 Constitution,[vii] especially given the herculean—and in some cases inappropriate—efforts of the President’s team to get voters to the polls to support the referendum.[viii]  As Omurbek Tekebaev observed, Atambaev’s political protegees had every reason to go to the mat for him in getting out the Yes vote, recognizing that if the referendum failed, he may have followed the example of de Gaulle and resigned from office, in which case their own futures would have been uncertain.[ix]

The passing of the referendum and the results of local elections will be discouraging reminders to opposition-minded forces in Kyrgyzstan that President Atambaev and his Social Democratic Party appear to be consolidating their hold on the government and the state.[x]  In recent years, a frustrated opposition has organized two popular rebellions that unseated presidents—in 2005 and 2010—but in those cases the ruling elite was divided along North-South lines, and so the opposition was able to tap into regional resentment.  No such easily identified source of political support exists today for the political opposition, and therefore taking to the streets for anything more than symbolic protests would not seem to be an option.  Those who stayed home on election day, or spoiled their ballots, are unlikely to form an easily mobilized force to counter the rise of the Social Democrats as the country’s dominant—if not yet hegemonic—party.  The question now is whether the constitutional revisions to governing institutions will provide the promised efficiencies without undermining the political pluralism that has distinguished Kyrgyzstan from its authoritarian neighbors.

Notes

[i] The amendments were presented to voters as a single package, and so only a Yes or No vote on the entire array of proposed revisions was possible.

[ii] For a comparison of constitution-making in post-communist countries, see Anna Fruhstorfer and Michael Hein, Constitutional Politics in Central and Eastern Europe: From Post-Socialist Transition to the Reform of Political Systems (Wiesbaden: Springer, 2016).

[iii] Eugene Huskey, Kyrgyzstan – President Atambaev Seeks to “Idiot-Proof” the Constitution by Reducing the Power of the Presidency, Presidential Power Blog, 21 January 2016. http://presidential-power.com/?p=4352  This post discusses some of the changes to the legal system included in the constitutional revisions, which are allegedly designed to root out corruption in the judiciary but will certainly lead to greater executive control of the courts.  For other changes see Bruce Pannier, “What’s in Kyrgyzstan’s Constitutional Referendum?” Radio Free Europe/Radio Liberty, 8 December 2016.  http://www.rferl.org/a/kyrgyzstan-constitutional-referendum-whats-at-stake/28164053.html

[iv] Anna Kapushchenko, “Atambaev raskritikoval Otunbaevu i eks-ministrov za nedovol’stvo popravkami k Konstitutsiiu,” Kloop Media, August 31, 2016. http://kloop.kg/blog/2016/08/31/atambaev-raskritikoval-otunbaevu-i-eks-ministrov-iz-za-popravok-v-konstitutsiyu-glavnoe/  In the middle of President Atambaev’s speech, which was given on Independence Day on Bishkek’s main square, former President Otunbaeva demonstratively walked off the stage to protest Atambaev’s attacks on her and other members of the Interim Government.

[v] See United Nations Human Rights Committee, Views Adopted by the Committee under Article 5 (4) of the Optional Protocol concerning communication No. 2231/2012,  CCPR/C/116/D/2231/2012, 11 May 2016.

[vi] Tat’iana Kudriavtseva, “Kak v Kyrgyzstane khodili na referendumy po konstitutsii,” 24.kg, 12 December 2016.  http://24kg.org/obschestvo/41447_kak_v_kyirgyizstane_hodili_na_referendumyi_po_konstitutsii/  The table of referendum results provided in this article, based on information from the Central Election Commission, mistakenly includes a 75 percent Yes vote for the 2007 referendum, but that is the percentage of eligible voters, not those actually voting, which is the method used for other years in the table.

[vii] The head of the Central Election Commission admitted to being surprised by the high percentage of invalid ballots and suggested that the sensitivity of the new electronic counting machines could have been at fault.  “Glava Tsentral’noi izbiratel’noi komissii rasskazala, chto ee udivilo na referendume,” Sputnik Kyrgyzstana, 12 December 2016.  http://ru.sputnik.kg/politics/20161212/1030753631/mnogo-nedejstvitelnyh-byulletenej-dlya-nas-neozhidannost.html The recent introduction of biometric identification for voters, which required citizens to get finger-printed, was one reason for the lower turnout rate.  A significant share of Kyrgyzstani voters had not gone in for biometric registration before the referendum, and even some who did register did not find their biometric registration on record at the voting precinct.  “Institut ombudsmena vyiavil nekotorye narusheniia izbiratel’nogo prava na vyborakh nakanune,” Akipress.org, 12 December 2016.  http://kg.akipress.org/news:1350601?from=kgnews&place=newstopic

[viii] There were reports, for example, of teachers employed by the state serving as “get out the vote” teams for the Yes camp.

[ix] “Omurbek Tekebaev: ‘Atambaev sposoben na postupki.  Esli referendum ne proidet, on uidet, kak de Goll’’,” Novye litsa, 29 October 2016.  http://www.nlkg.kg/ru/interview/omurbek-tekebaev-atambaev-sposoben-na-postupki-esli-referendum-ne-projdet_-on-ujdet_-kak-de-goll-

[x] In the weeks before the referendum,the Ata Meken Party’s criticism of the proposed constitutional changes led to the collapse of the ruling coalition and the effective expulsion of Ata-Meken from its ranks.  “Koalitsiia: Ushli, chtoby vernut’sia…no bez ‘Ata Mekena’,” KirTag, 25 October 2016.  http://kyrtag.kg/standpoint/koalitsiya-ushli-chtoby-vernutsya-no-bez-atamekena-/

Côte d’Ivoire – Analysis of presidential powers in the new constitution

Have the president’s powers increased significantly in Cote d’Ivoire’s new constitution, adopted by referendum on October 30, 2016, threatening to usher in a dictatorship? Or is the new constitution balanced and likely to bring stability to the country? The new fundamental text inaugurating the country’s third republic since independence in 1960 was passed by an overwhelming majority of votes – 93.4 percent. At 42.4 percent, voter turn-out was, however, well below the 52.9 percent turn-out in last year’s presidential election.

The opposition, led by former President Laurent Gbagbo’s Ivorian Popular Front (FPI), called for a boycott of the vote, alleging the new constitution will vastly increase presidential powers and allow the president to effectively nominate his successor thanks to the introduction of the position of vice-president. Also, a new, indirectly elected Senate with a third of its members to be appointed by the president will serve primarily as a means of presidential patronage, according to critics. The constitutional revision process was furthermore criticized by the opposition and some civil society groups for being rushed and not inclusive enough [see previous blog by Grant Godfrey on the reform process here]. Presidential supporters have dismissed these claims, arguing the new constitution reflects priorities and concerns collected through widespread consultations and will contribute to bringing peace to the country. Specifically, they argue the vice-presidency will help avoid problems of succession as happened at the death of President Félix Houphouët-Boigny in 1993.

Ironically, changes to nationality requirements for presidential candidates in Article 35, the most controversial article of the 2000 constitution, were hardly debated. Instead, it was the elimination of the upper age limit for candidates in the new Article 55 which was most controversial. Opponents claim this change will pave the way for President Ouattara who is currently 74 to stand again for reelection in 2020. The claim is dismissed by the presidential majority with reference to the two-term limit enshrined in the constitution and to repeated statements by Ouattara himself that he does not intend to run for a third term.

So what does a close comparison of presidential powers in the new and the old constitution from 2000 reveal? How much has changed? Below I compare various components of the president’s power, using the scale developed by Shugart and Carey (1992).[1] Specifically, I discuss whether there has been an increase in the president’s legislative and non-legislative powers. I also look at transitional provisions of the new constitution.

Table 1. Presidential powers in Côte d’Ivoire, using Shugart and Carey’s scale

  2000 2016
Package veto 2 1
Partial veto (right to veto part of a bill) 3 2
Decree (authority to make law without delegation) 0 0
Exclusive introduction of legislation (reserved policy areas) 0 0
Budget (authority over annual budget bill) 1 1
Referendum (right to initiate referenda) 4 4
Total legislative powers 10 8
Cabinet formation 4 4
Cabinet dismissal 4 4
Censure (assembly power to dismiss cabinet) 4 4
Assembly dissolution 0 0
Total non-legislative powers 12 12
Total 22 20

Contrary to expressed opposition concerns, the president’s legislative powers have actually decreased, according to Table 1. This is because it now only takes an absolute majority of legislators to override a partial or package presidential veto, in contrast to a two thirds majority as required in the 2000 constitution. Shugart and Carey’s scale does not take into consideration presidential powers of appointment of senators. In the case of Côte d’Ivoire, the ability to appoint a third of the Senate in the new constitution does provide the president with a powerful patronage tool and can increase the presidential majority in both houses combined; however, in the event of irreconcilable disagreement between the two houses of the legislature, it is the lower house (Assemblée Nationale) that prevails (Article 110).

Presidential powers to initiate a referendum have remained unchanged. However, constitutional amendments can now be adopted by a two thirds legislative majority, without the need for approval through a popular vote (Article 177). In that sense, the president’s powers to avoid a referendum have increased.

Non-legislative presidential powers are significant, but have not changed with the introduction of a vice-president. The president has full authority to appoint and dismiss the prime minister and cabinet; though the national assembly may organize hearings and commissions of inquiry, its oversight powers are restricted to making recommendations to the government. The legislature cannot censure the cabinet or individual ministers. On the other hand, the president cannot dissolve the national assembly ahead of the end of its five-year mandate. Combined, the president’s legislative and non-legislative powers were and remain significant, higher than for most of the Latin American presidential constitutions discussed by Shugart and Carey (ibid.).

In an apparent effort at avoiding the potential for divided government and gridlock, a transitional article (Article 182) provides for an only four-year mandate for the legislators to be elected at the end of 2016. The next presidential election in 2020 will thus coincide with the start of a new legislature, increasing the chances for presidential and legislative majorities to coincide. Transitional provisions also address the selection and powers of the first vice-president to take office after the constitution enters into effect. Specifically, the first vice-president will be appointed by the incumbent president, Ouattara. Should Ouattara die, be impeached or chose to step down before the end of his term, the vice-president would take over for the rest of the presidential term. However, in such an event, transitional Article 180 would limit this first, non-elected vice-president from exercising full presidential powers, notably from appointing a new vice-president and prime minister, and from initiating constitutional reform.

So to conclude, presidential legislative and non-legislative powers as measured by Shugart and Carey (1992) have not increased in the newly adopted constitution of Côte d’Ivoire. They were high and have been marginally reduced. However, President Ouattara does have new appointment powers (the vice-president, senators) at his disposal as the country transitions to a new constitution – powers which can be used for positioning a preferred candidate for succession and for cementing the presidential majority.

How the combined, significant powers of the Ivorian presidency are wielded over the remainder of the current presidential term and beyond will be of crucial importance for the consolidation of the country’s nascent democratic institutions.

[1] Matthew S. Shugart and John M. Carey. 1992. Presidents and Assemblies: Constitutional Design and Electoral Dynamics. Cambridge: Cambridge University Press. Powers are measured on a scale from 0 to 4, with 4 being the highest.

Cote d’Ivoire’s Constitutional Gamble

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

Today, Côte d’Ivoire President Alassane Ouattara’s cabinet is expected to approve a new draft constitution. The government plans to ask voters to enact it through a referendum at the end of October. While there is broad agreement among political party leaders to revise the current constitution’s conflictual provision that requires both a presidential candidate’s parents to be Ivoirian, Ouattara is expected to go beyond this and propose a new basic law. In his Independence Day speech to the nation, he outlined other major changes, principally the creation of a vice-presidency and of a senate.

A “committee of experts,” composed of renowned jurists, began work on the new text on May 31.  So far, public input has been limited to a series of closed meetings with political, traditional and civil society leaders. Meanwhile, public opinion research indicates that Ivoirians do not consider constitutional reform a top priority. A focus group study carried out by the Platform of Civil Society Organizations for Election Observation in Côte d’Ivoire (POECI) found that citizens would prefer the government address outstanding issues of national reconciliation, unemployment, security and the cost of living. A separate poll confirmed the urgency citizens attach to these issues, and also reported that more Ivoirians support a simple revision of existing provisions, rather than replacing the constitution as the government now plans. According to this research, Ivoirians are not exactly opposed to the president’s reforms, but do question their urgency in light of other priorities.

In the absence of an actual text to debate, talk in Abidjan has focused on the process chosen for producing such an important document and the government’s rush to pass it before legislative elections due by December. The opposition FPI has come out against the project, and a number of civil society organizations have requested that the government postpone the referendum to allow for a more inclusive process and to better inform the public on the subject matter of the vote.

The decision to go beyond the constitutional changes agreed on at Linas-Marcoussis has led to much speculation regarding Ouattara’s motives. The vice-presidency is clearly an attempt to avoid succession controversies, such as the one that followed founding President Félix Houphouët-Boigny’s death in 1993. Some also see it as an attempt by the president to impose a successor and suppress the internal competition between Speaker Guillaume Soro and Interior Minister Hamed Bakayoko.  Ouattara seeks to cement his majority by formalizing the union of his Republican Gathering (RDR) party with its coalition partner Democratic Party (PDCI) into a Houphouëtist (RHDP) party, possibly even  before legislative elections. Leadership quarrels within the alliance now could jeopardize the merger. Should it persist after the legislative elections and the FPI win a significant number of seats, the opposition could even hope to work with RHDP dissenters on close votes in the next National Assembly.

Multiplying institutions could create more opportunities for participation by and reconciliation with the opposition, if done inclusively. However, many observers believe that the opportunity to name a vice-president and a large number of senators will instead be used to provide Ouattara with enough patronage opportunities to keep the RHDP coalition together. Indeed, opposition parties’ objections to the expected changes are twofold: the cost of new institutions, and a charge that they will weaken Ivoirian democracy by subjecting even more of the government to presidential control.  

Ouattara no doubt wants to make changes before the 2020 contest starts to overtake policy issues. A defeat of the referendum seems unlikely given his resounding re-election victory last year. However, should Ivoirians decide that they want a greater voice in reforms, a more inclusive process, or that new institutions should depend less on the presidency, the Ivoirian poll could join the Brexit vote as a case study of the unintended consequences of referenda.

Azerbaijan – A New Constitutional Reform: Towards a Monarchical Presidency?

On 26 September, citizens of Azerbaijan were called to vote in a constitutional referendum. The constitution, approved in 1995, was already amended in 2002 and 2009. While the current amendments concern numerous topics (including civic liberties and right of assembly), some of them specifically concern the President’s role. It is proposed:

  • To amend Article 101.1 of the current constitution, which would extend the presidential term from 5 to 7 years.
  • To introduce a “First Vice President” and a “Vice President”, chosen and appointed by the president. In the case of the president’s inability to perform his role, the First Vice President would take over. Currently, this “second-in-charge” function is a prerogative of the prime minister
  • To remove the minimum age limit to run for President (currently, it is 35). Similarly, the minimum age for parliamentarian is lowered from 25 to 18.
  • To introduce the right for the President to dissolve the parliament. This is in the event that the parliament votes no confidence to the government twice in a year or refuses the suggested appointees to the Constitutional Court, the Supreme Court or the Central Bank’s main board.

In order to maximise the inclusivity of the voting process, polling stations have been established in Azerbaijani embassies. Remarkably, everything is ready in Ankara, Teheran and Riyadh.  However, notwithstanding the vocal support of the ruling party, the opposition has expressed its grave concern over the proposed changes.

While President Ilham Aliyev has not personally commented on the proposed amendments, pro-government voices have openly endorsed them. MP Siyavus Novruzov, who is the deputy executive secretary of the ruling ‘New Azerbaijan Party’, has defined the proposed amendments as necessary to enhance national security and reform of the state administration[1]. Emil Huseynli, head of the ‘Support for Youth Development – Dushunje’, declared that the various changes, including the strengthening of the presidential office, will foster the sustainable development of the country. Referring to the relaxation of the age limits, he commented that: this “will create an opportunity for the political activity of literate, prospective young people.” However, the opposition thinks that this amendment is specifically designed to favour a semi-monarchical transfer of power and, henceforth, that the children of the president would likely be the main beneficiaries of this “political opportunity”. Notably, it has been observed that Heydar Aliyev, the only son[2] of the presidential couple, will be 27 in 2025 (the most likely year for a presidential election). If his father decides to run for the presidential office in 2018 and to step down after that, the young Heydar would be an extremely probable “new” candidate. Other possible scenarios are the election of Heydar to parliament or the appointment of a member of the presidential family as vice-president[3]

In addition to being concerned about the future implication of these changes for the Aliyev family, the opposition is worried about the immediate effects of a “reinforced presidency”. Arif Hajili, the leader of Musavat party, bluntly declared that: “They [the state authorities] are not even able to explain to their citizens why we need these changes to the Constitution. They believe they can create a second North Korea here and rule in the same style[4]. Similarly, the prominent lawyer, Fuad Agayev, commented that: “An analysis of the document indicates that, if adopted, it will have an adverse impact on human rights, civil rights and freedoms, as well as power-sharing”.  This kind of apprehension is also shared by some international observers. Chris Smith, Chairman of the U.S. Helsinki Commission, sent a concerned letter to Ilham Aliyev. At one point, it stated clearly that: “By lengthening presidential terms and expanding presidential authorities, the proposed constitutional changes are susceptible to abuse that would entrench political authority, making it less responsive to the will of the Azerbaijani people.” Lastly, some observers expect the referendum to be rigged.

In September various well attended protest rallies took place in Baku. The main argument is that the only aim of the referendum is to reinforce Aliev’s rule. “No to monarchy!” and “No robbery!” were the main slogans chanted[5]. Additionally, in the attempt to generate an international response, some Human Right Defenders asked to Thorbjørn Jagland, the Secretary General of the Council of Europe, to submit the proposed amendments to the Venice Commission[6]. The main points of concern they raised were: the massive empowerment of the presidential office, the authoritarian climate the referendum takes place in, the non-consultation of the parliament, and the absence of public debate[7]. In addition to the Azerbaijani Human Right Defenders, on 5 September the PACE Bureau also asked the Venice Commission to give an urgent opinion.

In response, on 20 September the Venice Commission issued a “Preliminary Opinion on the Draft Modifications to the Constitution”. In the context of widespread concern on different matters, including the repression of dissident opinions, the Venice Commission expressed clear worries about the amendments in relation to the presidency. More specifically, it noted that, back in 2009, the removal of the two-term limit to re-election had already strengthened the power of the president. In the light of that, it said that: “the modification to Article 101 which extends the Presidential mandate for longer than is the European practice, coupled with the previous removal of the two-term limit, concentrates power in the hands of a single person in a manner not compatible with the separation of powers”. In addition, the Venice Commission expressed its concern about the president’s powers to dissolve the parliament, to call early elections, and to appoint a vice-president who, in practical terms, would be an unelected second-in-command.

Even though the voting has yet to be finalised, the rejection of the proposed amendments seems highly unlikely in contemporary Azerbaijan. Henceforth, in the face of domestic and international concern, the presidential office, which is already remarkably strong, will be further reinforced. Unfortunately, this seems to be a prelude to a further consolidation of the authoritarian tendencies in the country.

This research was supported by a FP7/Marie Curie ITN action. Grant agreement N°: 316825

Notes

[1] BBC Monitoring Trans Caucasus Unit. 2016. ‘Azeri court approves referendum on constitutional change’, 26 July (Retrieved through LexisNexis).

[2] In addition to him, the president has two daughters, Leyla and Arzu.

[3]Turan Information Agency. 2016. ‘It’s time for the United States to act on Azerbaijan’, September 9 (Retrieved through LexisNexis).

[4] Turan Information Agency. 2016. ‘Arif Hajili: Usurpation of Power Will Not Save Aliyev’. 18 September (Retrieved through LexisNexis).

[5] Turan Information Agency. 2016. ‘Jamil Hasanli: Aliyev does not get tired to pervert the Constitution’. September 17 (Retrieved through LexisNexis).

[6] The role of the Venice Commission, with reference to the constitutional referendum in Armenia, has already been discussed in this blog.

[7] Turan Information Agency. 2016. ‘The report of “Musavat” about the referendum campaign’. 5 September (retrieved through LexisNexis).

Senegal’s controversial constitutional referendum – how much of a change?

On March 20th Senegal held a referendum on constitutional amendments introduced by President Macky Sall. The yes- and the no-campaigns competed vigorously in the weeks leading up to the vote and ultimately the yes-campaign backed by President Sall won with 62.7 percent of votes. Voter turn-out was 38.3 percent. The referendum was widely seen as a test of President Sall’s popularity. Proponents of the no-campaign included the youth group Y’en a marre and even members of Sall’s own coalition such as the mayor of Dakar Khalifa Sall.

Key among the newly passed amendments is the one reducing the duration of presidential terms from 7 to 5 years (art. 27). This was a campaign promise by President Sall when he ran and was elected in 2012 – and paradoxically the most controversial element of the referendum. The change will only apply to the next mandate, meaning that Macky Sall will serve out his current 7-year term. Opponents say this is going back on his campaign promise of shortening his present mandate – calling it Wakh Wakhet (going back on his word). Also, critics are suspicious that Sall may use the constitutional change to restart the presidential term-counter at 0 and claim he can run for two more terms, as did former President Abdoulaye Wade before him. Macky Sall and his supporters point to an opinion by the Constitutional Court that the duration of the presidential mandate could not be changed mid-stream. They also underscore the wording of the new art. 27 which states that “no one can serve more than two consecutive terms.”

In total, 20 articles of the 2001 constitution were replaced or had sub-articles added.  Overall, the changes affecting presidential powers are fairly minor.

Amendments in addition to shortening the presidential term include:

  • Allowing independent candidates to run in elections at national and local levels (new art. 4).
  • Setting an upper age limit for presidential candidates at 75 years (new art. 28).
  • Institutionalizing the position of Leader of the Opposition with specific rights and responsibilities to be determined by law (new art. 58). This is a position that exists in a number of Francophone African countries, including Burkina Faso, Mali, Niger and Guinea.
  • Giving the Senegalese diaspora the right to elect their representatives in the National Assembly (new art. 59).
  • Increasing the membership of the Constitutional Council from 5 to 7 judges, of which 2 now have to be proposed by the National Assembly (new art. 89); and requiring the validation by the Constitutional Council of organic laws (new art. 78).
  • Instituting the practice of regular questioning of the Prime Minister and cabinet by the National Assembly (new art. 85), and the right of parliamentary committees to hold hearings with leaders of public entities and parastatal companies (new art. 81).
  • Locking in the duration and number of presidential mandates, as well as the mode of election of the president which cannot be changed through constitutional revisions (new art. 103).
  • Providing for transparency in the management of natural resources that must be exploited in a sustainable manner and for the benefit of the people (new art. 25-1); and requiring the government to protect the environment (new art.25-2).

President Sall chose a more modest revision than the complete overhaul of the constitution proposed by the National Commission for Institutional Reform (CNRI) in 2014. Among the innovations proposed by the CNRI which Sall did not include among his amendments were the following [see previous post here for further details]:

  • Requiring that the president step down as chair of his/her party.
  • Prohibiting a direct family member of an incumbent president to succeed him/her.
  • Requiring that the president appoint a prime minister from a list of three candidates submitted by the parliamentary majority, if the presidential and parliamentary majorities differ [that is, in case of cohabitation], in which case executive power would largely shift to the prime minister.
  • Reducing the legislative majority required to override a presidential veto from three fifths of the members of parliament to a simple majority.
  • Limiting the president’s power to dissolve parliament.
  • Capping the size of the cabinet at 25 ministers.

Though the newly passed amendments do provide for greater oversight by the National Assembly and Constitutional Council, they do not check presidential powers nearly to the extent envisioned by the CNRI. The CNRI had its origins in the Assises nationales, a one-year long consultative process conducted by parties and civil society organizations in opposition to then President Abdoulaye Wade. When Sall ran and won against Wade in 2012, he was backed by a large opposition coalition with roots in the Assises.

Bolivia – Evo Morales Loses Referendum to Extend Term Limits

Term limits have frequently been challenged in Latin America, particularly in those countries in the Andes that Steve Levitsky and Lucan Way have labelled ‘competitive authoritarian’ regimes.[1]

Last month, in Bolivia, President Evo Morales of the left-wing Movimiento al Socialismo (MAS) attempted to change the country’s term limits via a popular referendum. This would have enabled Morales to be elected for a fourth consecutive term. However, with a turnout of nearly 85 per cent, Morales’ proposed reform was rejected by 51.3 per cent of the electorate. This now means that Evo Morales will be unable to run in the 2019 presidential election and will have to leave office in early 2020. Morales is already Latin America’s longest-serving president currently in office, having previously won elections in 2006, 2009 and 2014.

The result was somewhat unexpected as Morales is massively popular, having overseen growth of 5 per cent per annum over the last decade and expanding social benefits to big tranches of previously unrepresented groups. Only this week, a poll suggested that his approval rating was approximately 58 per cent. Although Morales highlighted his economic success during the referendum campaign, he was dogged by a corruption scandal involving a former relationship from 2005 with the then eighteen year-old Gabriela Zapata, which saw him father a child with her. Zapata now holds an important position with the Chinese construction firm, CAMC, which has been awarded state contracts worth over US$576 million. When all this emerged during the campaign, Morales’ opponents accused him of influence peddling and corruption, allegations that were thought to severely dampen enthusiasm for his proposed constitutional reform.

Morales has overwhelming support for his reform in the national assembly. Last October, the house overwhelmingly voted in favour of legislation to allow the referendum to go ahead (the MAS hold 88 of 130 seats in the house) although Morales’ opponents have repeatedly challenged his right to run in recent elections. The Bolivian Constitution, the current version of which was adopted in 2009, states that presidents are only entitled to two consecutive terms in office. On this basis, Morales’ opponents challenged his right to run in the last election in October 2014. Morales was first elected in 2006, before being re-elected again in 2009 and as such, his opponents claimed he has already held two consecutive terms, and so was constitutionally barred from running again. The Supreme Court disagreed. In 2013, they ruled that his first term in office was not applicable in this instance as it occurred before the new constitution when the two-term limit came into effect.

As I have repeatedly noted in this blog however, Morales is not alone in his quest to alter constitutional term limits in Latin America. Initially, most Latin American constitutions, to avoid the perils of presidentialism and prevent the long-term concentration of power in the hands of a few, limited presidents to one term in office. In fact, in 1990, the Dominican Republic was the only country that allowed presidential re-election.

However, beginning with Carlos Menem and Alberto Fujimori, Latin American presidents began to broker deals with legislatures and the electorate to allow for an extension and/or redefinition of term limits. The trend continues. In 2010, Álvaro Uribe received support from the parliament to hold a referendum, proposing to change the constitution to allow him run for a third consecutive term. In April 2014, Rafael Correa indicated support for a constitutional amendment that would largely abolish presidential term limits in Ecuador. Correa already oversaw a constitutional reform to allow him run for a third consecutive term and last November, Daniel Ortega oversaw the abolition of term limits in Nicaragua to join Venezuela in allowing indefinite presidential election.

[1] See Levitsky and Way. 2013. Populism and Competitive Authoritarianism in the Andes. Democratization. Vol. 20(1).

Armenia – The constitutional referendum and the role of the president during the campaign

On Sunday a referendum took place in Armenia. Citizens were called to express their opinion on a set of constitutional amendments. With 63.35% voting in favour, the “yes front” prevailed (though the official result will be published the 13th December). Among other things, the result means a deep restructuring of the architecture of state power. More precisely, the Armenian semi-presidential political system will transition into a parliamentary one.

This result, relished by the ruling Republican Party, was not necessarily determined in advance. In fact, surveys conducted in the previous weeks did not show clear-cut result. Even the referendum day witnessed a certain surprise element. First, the voter turnout was slightly above 50%, which is the minimum threshold to validate the result. Second, and probably most importantly, some observers denounced the elections as rigged.  In particular, the opposition lamented cases of pressure, ballot-stuffing, violence and vote buying. Journalistic sources reported the episode of a man in a van distributing 10,000 drams (almost $20) to elderly voters. When asked about it, he claimed he was paying back a debt. These incidents also raised concerns among international observers. On Tuesday (8th December), the US and the EU invited the Armenian authorities  to conduct an investigation on the major irregularities that plagued the referendum.

Fraud was feared even before the vote. In fact, already in November various groups suggested that the authorities were planning to rig the referendum. The main opposition to the changes were the “No” Front and the “New Armenia Public Salvation Front”. The former is mainly composed of the Armenian National Congress (ANC), and the People’s Party of Armenia. In the past months Levon Zurabian, an ANC leader, emerged as probably the most visible character from this group. The latter is principally composed of the Heritage party, the Democratic Homeland opposition party, the socio-political organization ‘Constitutive Parliament’, and the protest movement ‘Rise, Armenia!’ Even if they occasionally cooperated in the campaign, they never merged. In the aftermath of the allegedly rigged vote, the groups are holding joint protests in the capital.

During the referendum, though, one actor was surprisingly quiet: the President of the Republic, Serzh Sarkisian. Even if the reform was strongly supported by his ruling Republican Party, President Sarkisian, who originally set up a Commission on Constitutional Reforms (on 4 September 2013) and facilitated the various stages of the referendum, did not play a role prior in the vote. In fact, after signing the decree setting the day of the referendum, he limited his number of declarations to both domestic and international media outlets.

Looking at his behavior, it seems that he did not want to present the change as his own brainchild. Even if he limited his comments, an attentive interpretation of some of his declarations supports this idea. For example, in his address to the 3rd International Forum of the Moscow State Institute of International Relations (MSIIR) Alumni, President Sarkisian underlined how the final text of the proposed new draft was the result of a prolonged dialogue with the opposition and the civil society. Additionally, he pointed out that the “draft of amendments to the acting Constitution [was] based on the Concept Paper published six months ago [by the Venice Commission]”. Similarly Edvard Nalbandyan, the Armenian Foreign Minister, declared in Tbilisi, at an unofficial meeting of EU Eastern Partnership foreign ministers, that the Venice Commission considered the work of the Constitutional Commission to be accurate and in line with international standards.

In addition, in the final phase of the campaign the president and (to a lesser degree) the Republican Party stated that a positive result was not an absolute priority and that, no matter what the outcome, the government’s position in office was not at stake. The press conference that the President gave on the 3rd of December, after weeks of quasi-silence, illustrates this point. President Sarkisian said that:“ Our priority is to conduct a normal referendum, within legal boundaries, and not just make changes. Changes are not the matter of life and death, and in general, for me no voting is a matter of life and death”.  Sticking to the same line a couple of days before, Vice President of the National Assembly Eduard Sharmazanov declared that the reform was not a top priority for the Republican Party.

The aforementioned declarations seem aimed to present the reform as a shared effort, bringing together domestic and international actors, instead of a personal battle. Ultimately, they might be interpreted as an effort by President Sarkisian to distance himself from the project. As reported by the pro-opposition “Zhoghovurd” Newspaper, the opposition considered this silence, which was quite unusual shortly before a referendum, as an attempt not to transform a possible defeat into a personal failure of the president and, eventually, into a de facto vote on his tenure in power[1].

In spite of this low profile, the pre-referendum press interview obtained huge attention and criticism from the opposition. The president seemed to contradict his previous declarations on his future. In the past months, he has declared that he would not be seeking the role of prime minister after the end of his presidential mandate in 2018. Departing from that position, when asked about his future intentions, he said that: “We will talk about that after the 2017 parliamentary elections”. This vagueness reinforced a major critique of the reform, namely that it was aimed at the good of the country but the perpetuation in power of President Sarkisian. In the immediate aftermath of the interview, Levon Zurabian, a leader of the “Armenian National Congress” party, said that: “Serzh Sarkisian has refuted his loyalists’ claims that he has no desire to reproduce his regime (..) With his statement, he has exposed his entire plan to retain power”.

Commenting on the final result, President Sarkisian said that:We can now conclude that the parliamentary system of government for our state is already a reality (…) It means the existence of strong government and strong opposition, an increased role for political parties and new opportunities for their development”.  He did only briefly mentioned the allegations of fraud, suggesting that the competent bodies should investigate any fraudulent episodes. At this stage, no comment was made on his political future.

This research was supported by a FP7/Marie Curie ITN action. Grant agreement N°: 316825

Note

[1] This last point is particularly significant if we consider that one of the main discussion points in the previous months was whether the constitutional change would allow the president to remain in power. In addition, some groups started to question President Sarkisian would serve until the end of his term. More precisely, on 1st of December, the “New Armenia Public Salvation Form” held a permanent sit-in in Freedom square (one of the main squares of the capital) and openly called for the resignation of President Sarkisian.