04/CC/ME

This unprecedented decision from Niger’s Constitutional Court is of historic, political and constitutional significance. It was the first time the Court demonstrated such boldness and courage since its creation. Politically and constitutionally, the decision effectively  ended  a tense political debate that was dividing the nation over  proposed constitutional reforms that would have formally made it possible for the incumbent  who was in his second and final term as head of state to stand for  an otherwise unconstitutional third term as President of the republic.

Because the 1999  Constitution  which was applicable at the time did not explicitly grant the Court powers to  rule on certain referendum matters, such as  when a referendum can be called— this being the prerogative of the president of the republic which he had exercised through the issuance of the challenged decree, the Court had to first determine two admissibility or jurisdictional questions : the first related to  its own institutional competence  to hear the matter as well as the  competence of the petitioners to  seise the court. With respect to the first, question, the Court turned to article 104 of the Electoral Code. Article 104 of the Code provides that ‘petitions against the abuse of power in electoral matters can be made to the Constitutional Court without any prior administrative procedure’. Article 1 of the Code defines electoral matters to include elections and referendums. Reading these two provisions together, the Court determined that as the challenged decree related to referendums, it had jurisdiction over the case.

With respect to the second admissibility question, the Court referred to article 9 (2) of the 1999 Constitution and article 2(1) of Ordinance No 99/59 of 20th December 1999 regulating political parties (the Ordinance). Article 9(2) of the Constitution provides that ‘political parties and groups of political parties compete in elections’, whereas article 2(1) of the ordinance defines political parties as ‘nonprofit associations, which, in line with the Constitution, regroup citizens around a political project and programme in order to compete in elections and participate in political life through peaceful and democratic means.’ 

Reading these two provisions together, the Court determined that the political parties who were the authors of the petition had both the competence and interest in bringing the action before the Court. This broad reading of the legal and constitutional frameworks in place is significant in that it allowed the Court to establish a pathway to adjudicating a matter which, under a strict application of the jurisdictional and standing rules of the 1999 Constitution, might never have been possible.  Direct access as far as the control of constitutionality was concerned was only opened to the President of the Republic, the President of the National Assembly and 1/10 of Members of Parliament, and only in respect of organic laws and ordinary laws before their promulgation. Ordinary citizens could directly access the court matters arising from electoral or referendum operations only after the vote and within the limits of rights accorded them at the polling station.

Moving to the core substantive questions of the case, the Court, noted that under article 49(1) of the Constitution, the President of the Republic, having consulted with the National Assembly and the President of the Constitutional Court, can submit to referendum any text which in his view requires the direct consultation of the people, except any text proposing to review the constitution, which must obligatorily be governed by the procedure laid down in Title XII. As the challenged decree, on detailed examination, was effectively, initiating a constitutional review process, the Court held that the general rule of article 49(1) could not apply, and Title XII of the constitution notably its articles 135 and 136 must govern the matter.

Article 135 provides in essence that ‘to be considered, any bill to review the constitution must first be approved by ¾ of the members of the national assembly.’ The article further provides that following the debates on the bill, if the latter is adopted by a 4/5 majority of the members of the national assembly, the vote shall be considered as definitive. Absent approval by a 4/5 majority, the bill must be submitted to referendum. This is a necessary sequence that must be respected.

On its part, article 136 provides that: ‘No constitutional revision may be initiated if such a revision threatens the integrity of the integrity of the national territory’. The article also provides that the republican form of the state, its multi-party and secular character as well as the provision of articles 141 on general amnesty and 36 on presidential term limits of the Constitution cannot be subject of any constitutional revision. Article 36 provides that the President of the Republic is elected for a five year mandate, renewable once—effectively placing a ban on any attempts to run for more than two terms.

As seen,  respecting the article 135 procedure  would have required the backing of a significant parliamentary majority—first a ¾ majority to agree to debate the bill  and secondly a 4/5 majority to adopt the bill  in order to avoid  resorting to a referendum. The president lacked this necessary numbers within the parliament, hence his attempt to by-pass the obligatory sequential procedure by directly calling for a referendum in order to achieve his objectives. Consequently, the Court found that the presidential decree convoking the electorate for a constitutional referendum violated the provisions of article 49 and 135 of the constitution and must therefore be declared null and void.

Through this decision, the Constitutional Court of Niger effectively served a reminder to public  authorities and political actors that the constituent will as expressed  in the Constitution of the 6th Niger Republic remained sovereign and could not be usurped or changed  by any group or individual without consequences. Any changes, especially to the fundamental provisions which constituted the building blocks of the country’s democracy, could not be touched without following the procedure laid down by the Constitution. The decision also allowed the constitutional court to consolidate the vitality of Niger’s democracy by strongly affirming its independence vis-a-vis the executive.