Why Burkina Faso’s transition offers lessons in how to manage a constitutional crisis

Thursday January 20 2022
Burkina

Graffiti in Ouagadougou reads “Compaore, you’re the thug!” It appeared a few days after President Blaise Compaore stepped down. Photo by Sia Kambou/AFP via Getty Images

By The Conversation

Constitutional government in Burkina Faso can be said to have begun with the proclamation of independence on 5 August 1960. This was soon followed by the constitutional referendum of 27 November 1960 which paved the way for the adoption of the new constitution.

This First Republic (1960-1966) was a presidential regime with aspects of a parliamentary system. There was also a strict separation of powers between the executive and the parliament. All subsequent republics, including the current Fourth Republic, have embraced, more or less, the same arrangement.

The country’s constitution has been amended eight times, each amendment affecting, among other things, presidential term limits. The current Constitution of the Fourth Republic (1991-present) – the most enduring of them all – was adopted by referendum and promulgated on 11 June 1991.

It enshrines classic guarantees of fundamental rights and, in the spirit of African human and people’s rights systems, ‘peoples’ rights’ and individual duties.

As with the other constitutions, it establishes a hybrid political system that blends elements of a parliamentary system with elements of a presidential system.

But this configuration lends itself to the abuse of power by the president. It was, in part, the reason for the popular insurrection in October 2014 during which the country’s parliament, national TV and radio buildings were stormed.

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The crisis prompted president, Blaise Compaoré to abandon his attempt to change the constitution so that he could serve a further three terms in office. Compaoré stepped down, ending 27 years in power.

The events led to the organisation of a ‘transition’ which in turn produced a transition charter. The intention was that it would establish boundaries that would re-balance government powers in the country.

But its legitimacy and constitutionality have been controversial. Some considered it a constitutional instrument. Others that it had come about due to a special political agreement and, as such, was operating outside the parameters of the constitution.

Now a new constitution, that of the Fifth Republic, is envisaged. The draft constitution, initiated after the transition by the new elected government, has not yet been adopted.

Compared to the present constitution, the draft text does not suggest any significant changes in the institutional relations between the various powers.

This shows that the commission that drafted the new version wanted to maintain the status quo as far as the institutional relations between the various powers is concerned.

Even though the draft text does not bring any significant changes in the institutional relations between the various powers, the path that’s been walked by the country through the transition has left important legacies.

For one, it helped keep the army at bay. Secondly it kept alive the desire for a constitutionally based democracy. And thirdly it seems to have inspired similar processes for the emergence from constitutional crises within the sub-region, such as in Mali (2020) and Chad (2021).


The hybrid system

The Fourth Republic follows the parliamentary tradition of responsible government. Political accountability is held by Parliament enforcing political accountability through motions of confidence, motions of censure, and the possible overthrow of the Government.

But parliamentary control mechanisms have been rationed and used parsimoniously in the country. In 30 years no motion of censure has been passed. In addition, since the presidential party and its allies dominate parliamentary activity, their political majority makes it difficult for Parliament to exercise effective and efficient control over the Government or sanction its actions.

The apex of executive power is occupied by two people – the President and the Prime Minister.

The President of the Republic has significant powers. Elected by direct universal suffrage, the president is not politically accountable to Parliament. A motion of censure cannot question the president’s political responsibility.

He or she can dissolve Parliament, make appointments to high state offices, is Commander-in-Chief of the army, and can grant pardons and propose amnesty laws. The president also has powers to decree a state of siege or emergency.

These powers are similar to those held by president’s in Côte d'Ivoire, Togo and Niger.

A difficult road

The events of the past seven years point to a strong democratic urge among the people of the country. This was first evident in the popular insurrection that overthrew the Compaoré regime in October 2014. Events that followed this also point to the strong desire to create an accountable government.

After Compaoré was ousted a coalition of political parties, civil society organisations, defence and security forces, and religious and customary authorities – called the forces vives de la nation – adopted a ‘Charter’ for a 12-month ‘transition’ period to organise democratic presidential and legislative elections.

The charter organised and governed the organs of the transition. It made references to and derogations from the Constitution (suspended in the earliest phase of the insurrection and restored later).

It asserted its supra-constitutional value in the event of a contradiction between its provisions and the Constitution.

It was thus intended to be a (supra) constitutional instrument during the time of the transition.

The legitimacy and legal character of the Charter was questioned because it didn’t come into force following a popular referendum or a parliamentary ratification. Because of the non involvement of international actors in its adoption process, it is not a classic political crisis agreement either.

Instead, it was adopted by signature of the representatives of the different participants from the insurrection.

Nevertheless, those defending its legitimacy argued that the signatories embodied popular and democratic legitimacy and were thus able to exercise the constituent power.

This sort of constitutional curiosity, however it may be described, is remarkable for its originality. It has, undeniably, a dimension of political agreement and, above all, it expressed the country’s commitment to constitutionalism.

Conducting the transition within a constitutional framework resulted in another major victory for those seeking democracy – it helped keep the army at bay. In September 2015, the people would resist an attempted military coup d’état against the transition.

A measure of stability

The presidential and legislative elections of 2015 brought an end to the Charter and the transition period in Burkina Faso. Subsequent elections were held in 2020.

The country now enjoys a measure of political stability despite the ongoing security concerns in the Sahel region since the destabilisation of Libya.

Samson Mwin Sôg Mé Dabiré is postdoctoral research fellow at the Institute for International and Comparative Law in Africa, University of Pretoria