Mali: A Model for Constitutional Reform in Africa

10th May 2010 By: ISS, Institute for Security Studies

In a televised address to the Nation on 31 December 2009, President Amadou Toumani Touré (ATT) of Mali announced his intention to amend the February 1992 constitution of the country. He said that the aim was to make it ‘more compatible with the current realities of the country' and set up an expert committee on constitutional reforms to identify areas of reform. Coming at a time when various African leaders have meddled with their constitutions in order to hang onto power, not least the controversial experience of Niger's Mamadou Tandja at about the same time, this announcement sparked passionate debates both within and outside the country. Democratic practice and development in West Africa has at best stagnated since the beginning of the new millennium and Mali, Benin, Cape Verde, Ghana (and to an extent Senegal) could be considered as exceptions in a stabilised but still fragile region.
However, when Daba Diawara, the head of the expert committee, submitted his report to the President on 19 April this year, previous suspicions and opposition to the President's undertaking turned into real endorsements and expression of respect. In fact, unlike in many other countries in Africa, the findings and recommendations of the committee titled ‘Political reforms' bill for the consolidation of democracy in Mali' (PRPCD) not only didn't attempt to personify power in Mali but extended the systems of checks and balances of the country's polity. This is, among others, epitomised by the maintenance of Article 30 of the 1992 constitution, probably considered by Malian citizens, political actors and many observers as the key disposition of the fundamental law. This clause of the constitution sets presidential terms to a maximum of two five-year terms, a provision that was respected by his predecessor, Alpha Oumar Konaré (1992-2002). By this, ATT respects his commitment to relinquish power at the end of his current and last term that expires in June 2012.
This said, it has to be acknowledged that citizens of those African countries whose constitutions have a term-limit for presidential tenure would be justified in their worries when their presidents announce plans to ‘reform' the constitution, particularly during their last term. In fact, the re-introduction of political liberalisation in Africa in the 1990s, saw all but 11 of the continent's 54 countries introducing provisions for presidential term-limits in their constitutions, often two five to seven-year terms. But since then, without mentioning the stillborn attempt of Niger's Tandja before his fall from hero to zero and his eventual overthrow in a military coup in February this year, leaders of nine countries (Guinea, 2001; Tunisia & Togo, 2002; Gabon, 2003; Chad, 2004; Uganda, 2005; Cameroon & Algeria, 2008; Djibouti, 2010) have done away with this provision. Burkina Faso's Blaise Compaoré removed it and later restored it. But all of them went on to ‘win' the subsequent elections and have since remained in power or died in office (Togo in 2005, Guinea in 2008 and Gabon in 2009).
But besides preserving this clause, what makes the Malian process a possible model for constitutional reform on the continent is also the widely consultative and thus consensual nature of the process, which resulted, according to Mr Diawara, in changes that will affect 30 existing legal texts and introduce nine new acts in the entire body politics of the country.
Amongst the proposed changes is the creation of a Senate as the second chamber of Parliament. It is the president of the new institution that will be the constitutional heir of the Head of State in case of the latter's death or permanent incapacitation. But more than an institutional change, this is likely to improve existing mechanisms of parliamentary oversight in the country. Moreover, press freedom is to be significantly strengthened. Media professionals are no longer to be jailed for press offenses, including defamation. But far from opening a Pandora's box, the new constitution provides for heavy fines for those found guilty of such offenses.
Perhaps the biggest innovation of the new text is the institutionalisation of the status of opposition. Some analysts attribute political violence in Africa, particularly related to elections, to the winner-takes-all nature of most African polities. As access to and control of political power is the surest way to self-enrichment, opposition is generally excluded and has to wait for its ‘turn to eat'. By suggesting the creation of a position for the leader of opposition, Diawara and his committee attempt to further ‘civilise' Malian politics.
The opposition leader will be the head of the main political party in parliament that doesn't support government. He or she will have the rank of a cabinet minister in terms of privileges and protocol. The head of state will regularly consult with him or her on important matters of the Nation and the person may be assigned to undertake certain missions on behalf of the state. If adopted, this clause will go a long way into de-mystifying the presidential function and preparing opposition leaders for state management - an experience that most African opposition leaders lack when they come to power.
There are many other proposed changes, and one of them is related to what is called in French speaking countries ‘political nomadism', that is frequent floor-crossing in the National Assembly. This is generally thought, rightly or wrongly, to be a permanent threat to the stability of this institution. The proposed constitution thus prohibits this in the course of Parliament's term, and penalises those found guilty by banning them from sitting in parliament for two successive terms. This is likely to strengthen discipline in the ranks of political parties and force them to make alliances on the basis of political programmes and not only of personal power ambitions.
In any case, the new constitution is expected to be adopted following a popular referendum by the end of the year and be promulgated well before ATT completes his last term on 8 June 2012. It has to be recalled that President Touré led a military coup that overthrew the authoritarian regime of General Moussa Traoré in March 1991. This followed popular demonstrations across the country that were mercilessly suppressed by the 23-year-old regime of Traoré. After 14 months in power, ATT honoured his promise to establish the rule of law in the country, by handing over power to Alpha Oumar Konaré, who had been popularly elected in the first credible multiparty presidential election in the country. After Konaré served his two constitutional terms in office, ATT returned to power as an independent candidate by winning the presidential elections of June 2002. He was re-elected in June 2007 in a highly acclaimed electoral process. From a military officer that served as a model in the early 1990s, the proposed constitutional and political reforms are likely to make him yet another model on the continent. A candidate for the next Mo Ibrahim Prize of African Governance? This would be more than deserved.

Written by Issaka K. Souaré & Paul-Simon Handy, African Conflict Prevention Programme, ISS Pretoria office