Burkina Faso’s constitutional reform process to accommodate the spirit of the popular uprising

The October 2014 popular uprisings, which removed the former president from power after he unsuccessfully attempted to abolish presidential term limits, demonstrated the unequivocal support of the Burkinabe for constitutional limits on personal power. The ongoing constitutional reform process must be legitimate, inclusive, and reflect the spirit of the uprising. 

Background

The current constitution of Burkina Faso was adopted in 1991 under the leadership of Blaise Compaore, who came to power after overthrowing Thomas Sankara in 1987. The constitution was amended a number of times mainly to promote and protect the personal interests of the ruling elites and/or of the ruling party. Notably, a 2002 amendment to article 37 of the constitution introduced a two-term limit on the presidency. Despite serving as president for more than a decade preceding the amendments, Compaore was able to run for the presidency in 2005 and 2010 on the ground that the amendments only applied prospectively.  An initiative to abolish the term limits to allow Compaore to extend his 27-year rule triggered popular uprisings that ended in his removal from power in October 2014. A transitional government was subsequently established with the mandate to organize elections.

The transition ended with the election of a new president in March 2016. During his inauguration, the newly elected President of Burkina Faso, Roch Marc Christian Kaboré, took a commitment to work on a new constitution. Three months into office, he adopted a declaration establishing a Constitutional Commission to draft a new constitution. The declaration, issued on 16 March 2016, grants the Commission sixty days to hand over its proposals to the President.

The decision to rewrite the constitution was not surprising because of its recurrence in the political debates. During the campaign for the presidential election, all the candidates acknowledged that the current constitution was a nest of troubles and promised to champion the adoption of a new constitution if elected. Among the broader public, especially those who were opposed to the revision of the presidential term limits, the current constitution is associated with and could not survive its main godfather whose regime was swept away in the October 2014 popular uprising.  Tailored to cope with the then president’s desires, the 1991 constitution is unclear on crucial issues and allowed extensive interpretations. A new constitution is necessary not only to integrate the fundamental political vision underlying the popular uprising but also to put an end to the continuity of unbounded personal power characterizing the former regime. 

Indeed, the National Transitional Council set up under the transitional regime had proposed a draft constitution. The draft was not adopted due to lack of time and out of the desire to defer to a democratically elected government to lead the process. This draft will undoubtedly inspire the work of the Constitutional Commission in the drafting of the new constitution.

The composition and mandate of the Constitutional Commission

The era where the President du Faso imposed his views on constitutional commissions appears to be a thing of the past. The membership of the Constitutional Commission will be equally divided between political parties and civil society organizations. The Commission has a total of 92 members representing, among others, the ruling party (21, of which eight are appointed by the President du Faso), opposition parties, including the erstwhile ruling party (13 members), which is the second largest opposition political force, as well as 46 members representing CSOs (including labor unions, women’s associations, youth associations, and customs authorities). The CSOs themselves will select their representatives. The common denominator among all these stakeholders is that, except for the former ruling party, all the others played a key role in the October 2014 popular uprising and acknowledge the necessity of a new constitution.

In addition to their role in providing input as part of the Constitutional Commission, CSOs will oversee the positions and proposals of the ruling and the opposition parties in light of the spirit of the popular uprising. Having led the popular uprising, they are more well-founded than any other in translating or expressing the spirit of the October 2014 demonstrations into a well-documented framework. The CSOs can also lead the discussion impartially unlike the political parties, which may have underlying political and ideological interests. Their presence is likely to encourage consensus and compromise among the political actors.

The Constitutional Commission is required to propose a new draft Constitution (Avant-projet de Constitution) taking into account the current constitution, and related works carried out by the Reforms and National Reconciliation Commission and the National Transitional Council. The Constitutional Commission has a wide mandate in writing the new constitution and the proposals will be submitted to limited popular consultation for observations after which the draft will be forwarded to the President du Faso. The President du Faso may submit his observations within eight days. The draft constitution will be adopted by a simple majority of members of the Constitutional Commission before its submission to a popular referendum.

Main reform targets

The new constitution will not be written in a vacuum. It will be mainly based on the current constitution, the charter of the transition, and to some extent the draft proposed by the National Transitional Council. While some provisions will be retained, other aspects will likely be profoundly transformed. Notably, the provisions at the heart of the uprising – presidential powers and term limits - will need reforms. When the current constitution entered into force in 1991, the presidential term was seven years without any limits on reelection. Accordingly, a person could have been reelected multiple times. A month after the president’s reelection in 1998 for a second seven-year term, the assassination of a prominent investigative reporter and his companions on 13 December 1998 led the country into turmoil. In 2000, the dominant political actors agreed to undertake social and political reforms. 

Accordingly, a “college des sages” (council of the wise) recommended the revision, among others, of the provision dealing with presidential terms. In 2001, the council forwarded its report to the President du Faso in which the main recommendation was to amend the constitution, particularly to reduce presidential terms from seven to five years and to impose two term limits. Constitutional amendments in 2002 officially gave effect to the recommendations. Nevertheless, the exact meaning of the amendments was not entirely clear.

The interpretation of the article depended on the interpreter’s political position. Some contended that the then president finished off his chance to be reelected again with his reelection in 2010. Nevertheless, supporters of the president argued that the term limits were not among the unamendable provisions under the current constitution. There were therefore efforts to amend the constitution to abolish the term limits imposed in the 2002 amendments. However, such efforts faced strong popular and political resistance. Copying from the textbook of other African leaders that have abolished term limits, the proponents of the amendment argued that allowing the reelection of the ex-president was essential for the sake of democratic consolidation. When the government initiated formal efforts to amend the constitution to abolish term limits, popular uprisings broke out that ultimately overthrew the then president.

To abolish a repeat of the experience, consensus emerged during the transitional regime that article 37 must be entrenched to preclude any future amendment. Therefore, one of the critical tasks of the Constitutional Commission is to find a way to block any amendment targeting term limits.

Another crucial issue relates to the establishment of a second chamber (Senat) introduced during the last constitutional revision in 2012. Although the name has changed from the “chamber of representatives” to “senate”, the establishment of a second chamber is not new to the 1991 constitution. The chamber of representatives, instituted as a second chamber, was abolished in May 2002 because, for the political opposition and CSOs, its existence was not only useless and counterproductive in term of democracy but also very costly for the national budget.

However, following political talks in the aftermath of a military mutiny, a constitutional amendment in 2012 reestablished the second chamber (senate).  Mostly chosen by the president (29/89 senators directly chosen by the President du Faso and 39 others indirectly), the senators never sat because of fierce opposition from political parties and CSOs. The senate was seen as politically inopportune and economically unsuitable for a poor country like Burkina Faso. The economic situation that sustained the abolition of the chamber of representatives never changed. The senate was also seen as a chamber to which the president could reward political loyalists for protecting his long tenure in office. Moreover, the appointment of the senate was an attempt to increase the number of loyal parliamentarians to allow the amendment of the constitution without popular referendum. The Constitutional Commission is likely to recommend the abolition of the second chamber.

The Constitutional Commission will also address the hyper-presidential system established in the 1991 constitution. In the current constitution, the President du Faso, who is the chief executive, appears as an elected monarch in many domains. The President can dissolve parliament, and appoints and dismisses the prime minister, his government (based on his decree power and without any parliamentary approval) and all high civilian and military positions. The Commission is expected to reduce the power of the President du Faso and to recommend a balanced sharing of power among the President du Faso, the President of the National Assembly, and the Premier Minister (the Chief of the government). There is also some support towards a shift to a parliamentary democracy.

Next steps

The new constitution will be adopted following the constitutional amendment procedure established in the 1991 Constitution. Accordingly, after receiving the draft from the Commission, the President du Faso will submit it to a referendum. Except for the people in the referendum, no one can formally reject or modify the proposals of the Commission after the adoption of the draft. Considering the popularity of the main elements of the proposed changes, the people are likely to approve the revised constitution in the national referendum. The date for the referendum is likely to coincide with the next local council elections, which were originally planned for 22 May 2016, but have been postponed. The new date is yet to be announced.

Overall, people in post-insurgency Burkina Faso are watching the process very closely and hope to see a new constitution reflecting their aspirations. The political actors and people of Burkina Faso share the idea that the new constitution will look different from the current one. The motto nurtured under during the transition - “plus rien ne sera comme avant” (nothing will be like before) - still reverberates.

Sawadogo Lamoussa is a Human Rights Advisor at the Ministry of Justice and Human Rights of Burkina Faso. He completed the LLM in Human Rights and Democratisation in Africa at the Centre for Human Rights, University of Pretoria.