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.

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