Term Limits and Three Types of Constitutional Crisis in Sub-Saharan Africa

Abstract

Like the rest of the world, Africa is experiencing a crisis of constitutional democracy. However, as this chapter argues, if one looks more closely at sub-Saharan Africa, there is more variation both in the types of constitutional crisis as well as in the increasing though limited number of peaceful transfers of power. The chapter traces three types of forces that are weakening constitutional democracy in Africa. The first set of forces involve violations of constitutional safeguards for the peaceful transfer of power. A second type includes constitutional suspensions by authoritarian regimes or insurgents that prefer to use their military capabilities to settle political disputes on the battlefield than through the ballot box. A third and surprising type of constitutional crisis occurs in politically stable countries such as Nigeria and Kenya where an incumbent government argues that it is required to adhere to the constitution even though doing so would result in a crisis. The chapter shows that although formal rules as a constraint on power have played an increasingly prominent role in some African countries, term-limit violations and constitutional suspensions are highly correlated with constitutional and political crisis.

After showing that violations of presidential term limits in Africa are highly correlated with constitutional and other types of crisis in Africa, this chapter adds a different dimension to understanding constitutional crisis in countries that have not consolidated democracy. The existing literature on term limits and constitutional crisis has primarily focused on democracies and argues that term limit violations in democracies are rarely accompanied by constitutional crisis. By contrast, many of the constitutional crises arising from abrogations of term limits arise in African countries that are not consolidated constitutional democracies. The chapter includes a tabulation of all attempts to modify or eliminate presidential terms limits from 2000 to early 2018.

The chapter concludes with three overall conclusions.

First, that it is difficult to conclude that the contentious politics unleashed by political pluralism are incapable of being managed through constitutional processes and mechanisms, when one considers the repressive practices of incumbents and their control of legislatures, judiciaries, and all the mechanisms of government. This control gives incumbents the ability to ignore or subvert constitutional rules and processes, particularly when these excesses are tolerated and even excused by regional or Western countries who have may have leverage to change the course of events, as happened quite exceptionally in Cote d’Ivoire in 2010–2011 where President Gbabgo was captured and sent to The Hague to face international criminal charges after refusing to concede electoral defeat. The subversion of constitutional rules and processes combined with repressive practices by authoritarian regimes exacerbates the likelihood of contentious politics becoming violent and significantly disrupting not only the political system set up by the Constitution, but the economy and society at large. Civil war and long periods of political unrest and uncertainty triggered by such protests in turn are used by authoritarian regimes and militaries to justify their continued control of the state. In particular, this chapter has shown that term-limit violations in Africa are highly correlated with constitutional and political crisis. Given the centrality of the presidency, term-limited incumbents and military leaders do not see the uncertainty that comes with elections as the way to decide who the next president will be.

Second, given that many of the constitutional crises analyzed in this chapter involve authoritarian regimes seeking to remain in control, the protests that are generated in response are also directed at the manner in which those excluded from state power are disfranchised economically. While an authoritarian government engages in repressive practices to control the state and its resources, groups protest because they may be worse off if they “fail to collectively mobilize” and protest. Not only therefore do protests target repressive state practices, they also target the kind of massive youth unemployment that characterizes many African countries, the pilfering of state resources by the elite connected to the state, the rising prices of food and other necessities of life, and the general exclusion of disfavored ethnic groups or regions from state resources by the government of the day. That economic exclusion in Africa is a source of instability is consistent with research showing that countries in which the bottom billion of the world’s population live—such as those in sub-Saharan Africa—are much more prone to insurgency and civil war than the rest of the world. Hence, although free, fair, and credible elections can provide a peaceful path to seeking political power and could lead those contesting for power to refrain from violence between election cycles, elites unwilling to concede electoral defeat are likely to spark the types of political and constitutional crisis discussed in this chapter.

Third and finally, the constitutional crises discussed in this chapter show the importance of domestic, regional, and international factors in their resolution. Cote D’Ivoire in 2010–2011 provides the best example of how a transnational network of actors played a role in resolving the crisis in favor of an opposition candidate who had won an election but had been denied the victory by an intransigent incumbent. However, regional and international actors are often reluctant to get involved in resolving intractable conflicts generating the constitutional and political crisis that arise when constitutional commitments to channel conflict into everyday politics fail. Yet it is precisely these types of crisis that are least likely to be solved only through negotiation. For this reason, authoritarian regimes that do not want to give up power may opt to improve their military capabilities in order to settle things decisively on the battlefield where there is no prospect of outside help from the outside. This is the sobering reality when elites are not committed to constitutional rules and processes to resolve conflicts amongst themselves. The news from Africa is not all bad news. There are examples of recent peaceful transfers of power that also included party alternations in Ghana, Nigeria, and Liberia. These hopeful examples are however largely the exception to the rule.

Keywords: International Law, Constitutional Crisis, Term Limits, Sub-Saharan Africa