Burkina Faso’s Constitutional Reforms: Disputed Legitimacy Versus Decided Legality

Burkina Faso’s Transitional Legislature recently passed constitutional amendments focusing on institutional reform, ratified without a referendum. While the Constitutional Council affirmed the procedural legitimacy of these amendments, it refrained from evaluating their substance. Critics contend that the amendments are a step backwards for the rule of law and democracy in Burkina Faso in its transition back to civilian rule – writes Dr. Samson Mwin Sôg Mé Dabiré

In December 2023, Burkina Faso’s Transitional Government, established by military leader Captain Ibrahim Traoré following the 30 September 2022 coup d’état, initiated a constitutional amendment process. This came as a surprise, as the general public first learned of the draft constitutional amendment from the minutes of a meeting of the Council of Ministers on 6 December 2023. The same week, the Prime Minister announced the executive's intention to adopt a completely new constitution to replace the existing one from 1991, though this initiative now seems to have been deprioritized.

The draft amendment announced on 6 December 2023 was ultimately adopted on 30 December 2023 by the Transitional Legislative Assembly (TLA) with over a three-quarters majority, making a referendum unnecessary under the Constitution. The TLA President then referred the amendment to the Constitutional Council for review. On 12 January 2024, the Council approved the amendment, specifically affirming that the process followed proper constitutional procedure. The amendment has nonetheless been criticized by civil society and legal experts, leading to debates over its pertinence and legality.

Content of the amendments: key institutional reforms

In terms of content, the constitutional amendment consists mainly of institutional reforms. The Economic and Social Council (Conseil économique et social) and the Ombudsman of Burkina Faso (Le Médiateur du Faso) were removed, which was already called for in the 2017 draft Constitution as these institutions were long viewed as ineffective and costly. But the reform also created a new institution called the National Council of Communities (Conseil national des communautés), which is defined in Article 141 as a body for mediation, consultation and proposals. An organic law will detail its powers, composition, and functions, and is expected to detail whether the National Council of Communities will provide oversight and promote accountability in the stead of the abolished institutions.

Furthermore, the amendment also elevated the National Intelligence Agency to a constitutional level, becoming the National Council of State Security (Articles 160.1 and 160.2), described as an independent administrative authority with financial autonomy.

The Constitutional Council has been expressly given new powers. Further to its current powers as the body with competence to deal with all constitutional and electoral matters, the amendment specifies its role as the regulatory body for ‘the functioning of institutions and the activities of public authorities’ (Art. 152).

Public prosecutors, before subject only to the ‘authority of the law’ and the heads of the prosecution office, are now concurrently positioned under the authority of the Minister of Justice . . .

The justice system, too, has been reformed. While the judicial power is primarily entrusted to judges, the reform includes the possibility of resorting to traditional methods of dispute resolution, the mechanisms of which are to be determined by law (Art. 124). Public prosecutors, before subject only to the ‘authority of the law’ and the heads of the prosecution office, are now concurrently positioned under the authority of the Minister of Justice (Art. 130). Lastly, the amendment modifies the composition of the Superior Council of the Magistracy (Conseil Supérieur de la Magistrature (CSM)), the institution governing judicial careers and disciplinary sanctions. It will no longer be composed almost exclusively of magistrates; half its members will now be non-magistrate members. Further, members of executive bodies of magistrates’ unions or associations are barred from membership of the CSM. The Chairman and Vice-Chairman of the CSM will now be elected by their peers and appointed by decree issued by the Council of Ministers (Art.132), whereas previously these positions were automatically assigned to the President of the Cour de Cassation (civil high court) and the President of the Conseil d’État (administrative high court). The new CSM is divided into disciplinary chambers, a careers commission and a commission for receiving petitions (Art. 133).

Apart from these institutional reforms, the amendment modifies the official language. Previously French was the sole official language. Now, the official languages are the national languages recognized by law, while French and English are the working languages (Art. 35). The amendment also revisits the mechanisms of accountability for the President and members of the government. The High Court of Justice (la Haute Cour de Justice), the Court previously competent to judge the President and government members in impeachment proceedings, has been abolished. Now their actions are subject to review before the Criminal Chamber of the Ouagadougou Court of Appeal, specially composed of three professional judges and four parliamentary judges (Art. 137). The amendment does not specify how the parliamentary judges will be selected. The President is liable only for acts performed in his capacity as Head of State that constitute high treason or misappropriation of public funds. Members of the government are liable for crimes and offences committed during or in connection with the exercise of their functions. However, legal action can only be taken once they have left office.

Concerns about the pertinence of the amendment

Some have questioned the appropriateness of these constitutional amendments, especially in light of the mission and objectives of transitioning back to civilian rule. The transitional authorities' raison d'être was stated as combating terrorism and resolving the security crisis.

Regarding the substance of the reforms, the constitutional amendment has also been criticized for being a step backwards for the rule of law and democracy, even though one of the transition's missions, according to Article 2 of the Transition Charter, is to strengthen democratic culture and consolidate the rule of law through political and institutional reforms. Criticism therefore focuses mainly on the justice system reforms. The subordination of prosecutors to the Minister of Justice and revised composition of the CSM – with half of its members being non-judges – are seen as an infringement of the independence of the judiciary and an attempt by the executive to take control thereof. Some critics see the provisions limiting presidential accountability to acts of high treason or embezzlement, and the deferral of proceedings against the President and members of government until the end of their term, as an attempt to shield the executive from prosecution. The recomposition of the Criminal Chamber of the Court of Appeal, with a majority of parliamentary judges to try the President and members of government, is also criticized as a retreat from the rule of law, creating a politicized judiciary.

The relevance of the new Conseil national des communautés is also questioned, as well as the added value of constitutionalizing the National Intelligence Agency.

On the other hand, while the abolition of the Economic and Social Council and the Ombudsman of Burkina Faso is welcomed as meeting a long-standing demand, some regret that the amendment makes no provision for a transitional period during which these institutions would be dismantled. The relevance of the new Conseil national des communautés is also questioned, as well as the added value of constitutionalizing the National Intelligence Agency. As to languages, the addition of English as a working language and the inclusion of national languages is generally praised, but concerns are raised as to effectiveness. Some also question the practical difference between a working language and an official language, as well as the challenges of identifying national languages for official status, as Burkina Faso is home to almost sixty languages.

Disputed legality of the amendment

Regarding the amendment process, some have described it as rushed or clandestine, lacking public or democratic debate, and therefore lacking legitimacy. Magistrates' unions and even the CSM deplored that the judiciary and the CSM had not been consulted beforehand, especially as the amendment has the potential of affecting the independence of the judiciary – a situation, that, according to Article 133 of the Constitution, requires an opinion from the CSM.

But the main criticism focuses on the timing of the constitutional amendment. According to Article 165 of the Constitution, 'no constitutional amendment may be initiated or pursued (...) during a state of siege or a state of emergency, or when the territorial integrity is under attack'. Given the current terrorism crisis in Burkina Faso, some have argued that the Constitutional Council should invalidate the amendment based on Article 165. However, in its decision of 12 January 2024, the Council stated that while the terrorist crisis had led to the declaration of a state of emergency in certain regions of Burkina Faso since April 2023, this state of emergency had expired on 29 October 2023, without being extended nor reinstated, and that a state of siege had never been declared.

The Constitutional Council's decision may be criticized in several respects, notably its definition of a threat to territorial integrity and its decision to limit its review strictly to procedural aspects . . . 

On the question of whether the security crisis in Burkina Faso constitutes an attack on territorial integrity that could preclude a constitutional amendment, the Council replied in the negative. It defined an attack on territorial integrity as control by a foreign power over the territory aiming to remove it from the authority of the State. The Constitutional Council indicated that the terrorist crisis comes from non-state armed groups, and therefore concluded that there is no attack on territorial integrity. Additionally, considering that the draft revision was initiated by the President of the Republic, discussed in the Council of Ministers and adopted by a three-quarter majority of TLA members exempting recourse to a referendum, the Council deemed the amendment procedure regular. This decision may be criticized in several respects, notably its definition of a threat to territorial integrity and its decision to limit its review strictly to procedural aspects, avoiding substantive review of the new constitutional provisions. However, the Council did attempt to legally justify its decision.

Conclusion

Ultimately, the amendment was enacted with no major opposition protests or demonstrations. Indeed, the prevailing political atmosphere is not conducive to open and vigorous demonstrations and opposition. What remains to be done is to pass the various laws needed to clarify and implement the new constitutional provisions, with possible extension of the transition timeline, as called for by some. Although the end of the transition is officially set for July 2024, President Traoré has indicated that the ‘elections are not a priority’ at the moment. Burkina Faso’s exit from ECOWAS is also suspected as a means of escaping regional pressure over the end of the transition.

Dr. Samson Mwin Sôg Mé Dabiré is a member of the Faculty of Law at Thomas Sankara University in Burkina Faso. He is also co-editor of the African Network of Constitutional Lawyers’ blog.

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Suggested citation: Samson Mwin Sôg Mé Dabiré, ‘Burkina Faso’s Constitutional Reforms: Disputed Legitimacy Versus Decided Legality’, ConstitutionNet, International IDEA, 29 March 2024, https://constitutionnet.org/news/voices/burkina-faso’s-constitutional-reforms-disputed-legitimacy

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