Mali: Peace process, constitutional reform, and an uncertain political future
While the proposed reforms to the Malian Constitution respond to the Algiers Peace Agreement, the process was not inclusive and the proposals include ‘opportunistic’ reforms that have triggered strong opposition. Reengagement to secure broader consensus over the reforms is necessary. The order of the Constitutional Court to correct certain provisions in the reform proposals offers a great opportunity in this regard – writes Sidi M. Diawara.
The Constitution of Mali is the most significant outcome of the inclusive national conference during the 1991 democratic revolution. It is yet to be amended, but not for lack of efforts. In the latest attempt, on 3 June 2017, the Malian National Assembly, at the initiative of the Government, passed a law authorizing the reform of the 1992 Constitution. Approval in a referendum, postponed after initially scheduled for 9 July 2017, is required to ratify all changes to the constitution.
The current reform process is the third attempt since 1992, the first two having failed, one for a lack of consensus within the body politic, which led to successful challenges in the Constitutional Court in 2001, and the second one due to an abrupt halt to the 2012 electoral process following a military coup d’état. The transitional government established after the coup did not pursue the reform process, although the deposed President had managed to secure large consensus, reflected in the 141 votes in favor and three against the amendments in parliament, following a lengthy consultation process and analysis, leading to a number of recommendations, many of which required constitutional reform. The current reform effort is mainly driven by the need to implement the Algiers Agreement for Peace and Reconciliation in Mali (the Peace Agreement) signed with armed rebel groups in the northern part of the country in 2015. Nevertheless, the committee of experts in charge of the drafting was granted broad mandate to propose draft revisions to promote the achievements of the previous attempts at constitutional revision, and to address any shortcomings in the constitution.
Despite the determination of the government to push through the reforms, many civic groups have challenged the process and 35 members of the parliamentary opposition voted against the reforms, even though they had submitted 45 amendments to the initial version of the text, out of which 38 were taken into account. Opponents to the reform have staged some of the largest public demonstrations in recent times in Bamako, and subsequently filed a legal challenge before the Constitutional Court on 19 June. On 21 June, the Government decided to postpone the referendum, in an apparent move to await the outcome of the legal challenge at the Court since its rulings are not subject to appeal.
Context of the current reform effort
As Mali was preparing to hold presidential elections in April 2012, a military coup on 23 March 2012 brought the process to a halt, plunging the country into a crisis that culminated with the invasion and occupation of 2/3 of the country by the Movement for the Liberation of Azawad (MNLA), and two Jihadist groups: Ansar Edine (the Defenders of the religion) and the Movement for the Unification of the Jihad in West Africa (MUJAO). A constitutional referendum to approve a number of significant reforms, overwhelmingly approved by the National Assembly, was scheduled to take place on 12 April. Although political accords ushered a transitional government into power, the reform agenda was not taken up and the presidential election only took place much later in July/August 2013.
Mali has since been in a political and security crisis. By January 2013, the jihadist affiliates of the rebel groups were driven out by French troops but the rebel groups were considered as ‘legitimate forces’ the transitional government was compelled to negotiate with. The United Nations established in the country one of its largest peace keeping missions (MINUSMA), while peace negotiations under the aegis of France, Algeria and the UN got underway. In May 2013, the newly elected Government signed the Peace Agreement but the ceremony was not attended by the main rebel groups, which finally signed the accord in June. The Peace Agreement helped end military confrontations between government troops and the many rebel movements. Nevertheless, despite the signing of the Agreement, Mali remains divided. The government still does not control large swathes of land, particularly in the Kidal, Timbuktu, Gao and Mopti regions. It has been unable to keep the sporadic violence in check and ethnic tensions are rising in parts of the country. Jihadist groups also continue to launch deadly attacks on Malian troops and on civilian targets.
The quest for peace as the underlying objective for the reform
The main argument for the constitutional reform is the quest for peace and stability. The foundation for a renewed constitutional reform effort was actually laid out during the peace negotiation in Algeria in 2015. In essence, in response to recurrent demands for autonomy and military insurrections, the Peace Agreement calls for a new institutional architecture that will allow citizens of Northern Mali to manage their own affairs on the basis of the principal of free administration, combined with an increased representation of the northern population in national institutions. Accordingly, the central government will share its powers and competencies with the regions. The Accord specifically requires the creation of a bicameral parliament.
Regardless of the propriety of the substance of the proposals in the Agreement, considering their significant constitutional and political implications, the peace negotiations were not inclusive, particularly compared to the 1992 constitutional making process. The armed groups (CMA and Platform), through their various coalitions, have declared their support for the reform process, which was also manifested in the vote of many members of parliament, who are members of the armed groups while also maintaining membership in major political parties. The National Assembly has also approved the proposed reforms.
Nevertheless, in Algeria, a newly elected and weak government entered into negotiation and accepted - without reserve - an Agreement that places enormous burdens on the rest of the country and will require the mobilization of massive financial resources. By signing the Agreement, the government committed itself and the people of Mali to an endeavor of epic magnitude going beyond institutional reforms and as far as listing specific infrastructures, such as new road networks, to be built in Northern Mali. Many politicians who were not involved in the Algeria peace process have rejected the Agreement, and the related constitutional reforms.
Implementing the peace accord and more: Proposed changes to the 1992 Constitution
The proposed reforms largely leave intact core elements of the 1992 constitution, such as the recognition and protection of fundamental human rights. Mali will remain a unitary and secular republic. The limitation of presidential term is also preserved. Nevertheless, the reforms include significant changes. In direct connection to the implementation of the Peace Agreement, the reforms propose the establishment of a bicameral parliament composed of a senate and a National Assembly. While the people will directly elect members of the National Assembly, the President would appoint a third of the senators; the rest will be elected indirectly as determined in an organic law. The proposed reforms also formally recognize decentralization as the preferred form of administration, alongside the recognition of regions, with their own executive body, as the ‘center’ that would steer local development. .
The proposals also include reforms unrelated to the Peace Agreement, some of which may be considered opportunistic. In particular, the proposals entail a significant enhancement of the powers and privileges of the President. The draft retains the power of the President to dissolve the National Assembly upon consultation with the Prime Minister and the Speaker. S/he who will also appoint the prime minister. Crucially, s/he can terminate her/his tenure at will, a power not currently available. The President will also appoint 1/3 of the senators, and the president of the Constitutional Court, currently selected by the judges themselves. The President will also preside over the Higher Council of Magistracy that decides on important issues such as appointments, promotions and dismissal of judges. Moreover, the reforms anticipate the possibility of future constitutional amendments through a simple majority vote in a joint sitting of parliament, without the need for a referendum.
Furthermore, the eligibility conditions and procedures for presidential elections will require an organic law. Malians living abroad will also have representation in the National Assembly. Moreover, the reform proposes civil society groups as members of the High Council of Magistracy, which has caused the largest judges’ union to oppose the reforms, advocating the determination of the composition of the Council in an organic law, rather than in the constitution. An independent administrative court that will verify the integrity of public accounts and the use of public finances will be established distinct from the Supreme Court. The proposed reform would for the first time give traditional authorities legal recognition, although their types and authorities vary from one ethnic group to the other.
Opposition to the proposed reforms
Overall, the main opposition relates to the timing and circumstances of the referendum, which makes sense considering that a significant number of proposals from opposition groups were actually taken into account. The main opposition in substantive terms seems to relate to the ‘opportunistic’ changes, especially concerning the expanded powers of the President, rather than the parts giving effect to the Peace Agreement. Criticism against the reforms can be summarized in three main points: (1) The violation of the prohibition on constitutional reforms when there is breach of Mali’s territorial integrity - a large swath of land still controlled by armed groups, and inaccessible to the government; (2) the deteriorating security environment; and (3) the significant increase in the powers of the President. One of the major challenges to constitutionalism in post-1990 Africa is the issue of concentration of powers in one man, the president, and in one institution, the presidency, and the abuses of powers that go with it. The proposed reform will lead to an overbearing and ‘imperial’ president who dominates the legislature and controls the judiciary.
Opposition parties, two Magistrates’ Unions and other workers’ unions have formally opposed the reforms. Although their motives may vary, they have united in a coalition labeled Antè A bana: Don’t touch my Constitution (We say No and that’s it). On 16 June, 19 members of parliament challenged the constitutionality of the reform law before the Constitutional Court, mainly on the ground that the referendum cannot be held while there is an ‘attack on the territorial integrity’ of Mali. At the request of the government, as required by law in relation to referendums, the Court had issued a non-binding opinion on 6 June that the referendum could be conducted, despite the poor security situation.
Outcome of the legal challenge
The Constitutional Court issued a ruling on July 4 rejecting the main claim. It ruled that the concept of territorial integrity is defined in relation to the country’s sovereignty. According to the Court, Mali remains a sovereign entity. The functioning of state institutions cannot be tied to a ‘total pacification of the country’. The referendum may therefore be held. The decision of the Court is consistent with its favorable opinion on the referendum issued on 6 June. A triumphant government issued a statement commanding the Court ruling and insisting that the reform must go on. Accordingly, the government, the National Assembly and the ruling party embarked on a nation-wide information campaign. Nevertheless, a new referendum date has not yet been set.
Nevertheless, in the Malian legal system, once the Constitutional Court is seized in order to verify the conformity of a law with the Constitution, the Court has the obligation to review the law and exercise its competencies beyond the demands of the applicants. Accordingly, the Court stated that there is a number of ‘material errors’ that must be corrected, thus the need for the government to send the reform law back to the National Assembly for the needed corrections, and thus a new vote.
The errors noted by the Court speak to the rather expedited procedure at the Assembly. A thorough reading by the legislative sub-committee and consultations with Malian constitutional experts could have averted this situation. A close look on a few of these articles is self-explanatory:
Article 37 formulates the oath presidents must make before assuming power. In its new formulation, an important segment pertaining to the protection of the independence and territorial integrity of the country was absent, as compared to the 1992 formulation. The Court required that such segment be reinstated in the reform formulation.
Article 48 pertaining to the powers of the President omitted the power of appointing ambassadors to foreign countries and accrediting foreign ambassadors to Mali. The Court required that such omission be corrected.
Article 110, point 5 of the reform law lists the composition of the High Council of Magistracy, whereas the same Article in its first part provides that an organic law will determine the composition of the Council. Therefore, point 5 of Article 110 was not needed and must be deleted.
A new opportunity in reconstructing a lost political consensus
The resubmission of the reform law to the legislature offers a unique opportunity to work on rebuilding a political consensus that could mend the deep fracture developing within the Malian society, to proceed to a more comprehensive and needed reform that will not only lay the foundation for an improved governance but also increase the chances for sustainable peace and stability. Such reform effort could take cue from the 2012 comprehensive ‘package’ of reforms proposed by the Daba Diawara Commission and subsequently endorsed by the legislature, even though a referendum could not take place.
The ruling majority and the opposition have entered into a fierce and negative communication campaign (with a massive use of social media) and both parties have met with Muslim leaders to present the rationale of the reform (for the majority) and the arguments against the reform (for the opposition) thus placing the leaders of the Islamic faith in the ‘center’ of what appears to be a looming crisis. The religious leaders (Muslims) met on July 13 and issued a statement in which they, in essence, remind of the necessity for dialogue and, at the same time, invite all stakeholders - including armed groups - to place the interest of the country above all other considerations. They clearly avoided taking side for that could affect their credibility and subsequently undermine the authority and respect they still enjoy.
Recent experiences demonstrate that the adoption of controversial constitutions (Cote d’Ivoire, Congo Brazzaville, Chad and Egypt) could provoke political instability and even violence. They pose threat not only to the countries concerned but also to neighboring states and the international community as a whole. The political and security crisis in Mali has already spread to neighboring countries and is no more a Malian crisis, but a crisis in the Sahel. The organization of a controversial constitutional referendum in these circumstances could further exacerbate the situation and potentially endanger the stability of the country and to some extent some of the neighboring countries.
The possible outcome of a referendum is unknown. The government and members of parliament maintain the text of the reform as it stands and are determined to conduct the referendum, only envisaging to correct the errors the Constitutional Court pointed out. The opposition is determined to prevent the holding of the referendum. In the past, Malian politicians have proved particularly skillful in exploiting social problems or issues in order to achieve their aims. It will not be a surprise if they did the same this time around taping on the deteriorating security environment and the rather disgruntled security forces. A renowned civic activist very skillful in video propaganda even claimed via YouTube that, if the reforms were to pass, homosexuals would be allowed to marry. The Malian society is very sensitive about the issue of sexual orientation and this appeared to be an attempt to rally religious leaders and their followers to join the anti-reform movement. Re-engaging the reform process with larger consultation could be a wiser approach than going into confrontation.
In form and content, there is no ideal or standard constitutional design or model that is irreproachable, nor one that will solve all problems for all time. Indeed, constitutions require careful maintenance to incrementally accommodate changing circumstances. From this perspective, the need to rethink and revise many aspects of the Malian Constitution is inevitable, and perhaps desirable. Nevertheless, the constitutional reform process must allow a strategic dialogue between the rulers and the people. It must also be as inclusive as the design of the 1992 Constitution for a stronger democratic future that takes into account, not only the aspirations of the Tuareg people, but that of the people of Mali as a whole.
More voices are calling for a cancelation of the reform project. However, a cancelation of the initiative may further erode citizens’ trust in an already fragile government, lead, possibly, to an impasse in the implementation of the Peace Agreement, and affect the little support the President still enjoys within the international community. The proposed reform forecasts an uncertain political future for Mali.
Sidi M. Diawara is a Malian-American human rights activist, expert in electoral assistance and independent political analysis with over 20 years of professional experience. He also writes opinion pieces for publication, usually focused on political developments in Mali.