DCC 11- 067

A careful reading of this decision brings out three important elements: the first is the Court’s consideration of the conforming elements of the law. The second is the verification of the contents of article 6, and thirdly the ascertainment of its constitutionality. But it is the second and third elements that elicit the most interest.

Article 114 of the Constitution recognizes the Constitutional Court as the guardian of the Constitution and therefore the authority responsible to ensure respect for the will of the constituent power. However, this decision, through which the Constitutional Court took the liberty and opportunity to read into the Constitution new  immutable principles not explicitly or implicitly stated anywhere in the document represents a rare an audacious move on the part of the institution. It is important to recall that a fundamental objective of the eternity clause—article 156—of the Constitution is to protect and preserve the integrity of the territory. To this effect, it explicitly places a ban on any amendment which seeks to alter (1) its republican form and / or (2) the laic or secular nature of the state. While limiting the presidential mandate to two terms, article 42 in no way makes it an unamendable provision. The same conclusion applies to articles 44 (setting the minimum and maximum age for occupants or potential occupants of the presidential office) and article 54 (providing that a republican president shall hold executive power). A literal reading of the Constitution would therefore suggest that the disputed provision—article 6—of the referendum law is constitutional. But the Court found otherwise and decided that articles 42, 44 and 54 must be implied into article 156 of the Constitution resulting in a finding that article 6 of law No 2011/27 was unconstitutional.

The Court advanced a number of arguments, often grounded in canons of interpretation—notably the historical and systematic approaches— to justify its conclusion. In fact the heavy application of this  techniques in the Court’s analyses are hard to miss

As far as historical interpretation is concerned, it is important to note that the Court’s function, with regard to referendums, under article 4 (2) of the Constitution is not to determine when a referendum should take place, as that would be constitutionally objectionable. Its role, rather, is limited to controlling the regularity of the referendum process once the relevant authority calls for one. Although this may not be immediately apparent, the Court did exactly this in this case by applying the notion of fundamental objectives of the constituent power that adopted the Constitution in 1990 as a standard for controlling article 6 of the contested law. Drawing heavily from the preamble, the Court recounted the historic events (notably a culture of human rights violations, undemocratic rule and abuse of power) which led to the adoption of Benin’s Constitution in 1990; and forcefully reaffirmed the fundamental tenets of the new political and constitutional dispensation that emerged from that process. Among the most important were the embracement of democracy and the rejection of the confiscation and personalization of power. Even if it did not exactly state it in these terms, it was clear that these principles, in the Court’s reasoning, formed the building blocks of the new republic. There was a manifest risk, the Court argued, that these building blocks will be weakened and ultimately eroded if article 6 of the challenged law was allowed to stand its present form. Such an outcome will defeat the fundamental objectives of the 1990 constitution to build a society based amongst others on democracy, rule of law, respect for human rights and national cohesion.

 Additionally, democracy implies the theoretical possibility of each citizen to be governed but also to be able to govern in turn. This rotation can be realized only if the Constitution and other relevant legal frameworks provide the conditions that make it possible for citizens to be elected. This, essentially is the Court’s approach to resolving the question. If there are no limits to how long a person can hold power, there is a clear risk of confiscation and personalization of such power by one person at the expense of society at large. This would violate the prohibition on the personalization of power recognized in the preamble of the Constitution. Furthermore, it is worth noting that the Court was not oblivious to the political atmosphere prevailing at the time the law was adopted and the posturing from various political actors. It is reasonable to therefore see its decision as a check on the potential instrumentalization of the referendum mechanism to advance the personal and political interests of the law’s promoters, notably the incumbent. This would constitute a serious manipulation of the Constitution which the Court must stop. Given this real possibility and taking into account the fundamental objectives stated in the preamble, the term limits clause must be read as an implicit eternity clause. This is what this decision forcefully reaffirms.

Finally, it should be underlined that Constitutional Court is not only responsible for ensuring that citizens remain the master of their own destiny but also and above all to protect citizens from unwittingly, or through abusive manipulation, violating their expressed will. Put otherwise, the Constitutional Court essentially stated that not only the constituted power but also the constituent power could face restrictions on their rights by principles which they themselves adopted. The decision therefore effectively creates a sort of bloc of supra constitutional principles for the Court’s review of constitutionality. This is both a novel and bold move since as a matter of principle, it is arguable whether the Court, being itself a constituted power, can limit the Constituent power in the exercise of its sovereign prerogatives. Can the Court, as a constituted power, or any other constituted organ for that matter arrogate the power to tie the hands of the constituent original power that constituted it?

This jurisprudential expansion of the scope of the eternity clause seems to be justified by the fact that the constituent power set fundamental goals that have become indispensable building blocks to a democratic society, and the Constitutional Court see itself also as the guardian of these principles. The takeaway from this brief but highly consequential decision is that the Constitutional Court is not only the guardian of the Constitution but also the guide of the sovereign will with responsibility to steer it away from violating, or being manipulated into violating its own fundamental objectives. With this judicial creation of the concept of ‘fundamental objectives, choices or options’, the reading of article 156 of the Constitution must henceforth be informed by this decision. While there is a democratic logic for extending the scope of the eternity clause to include the term limits clause, reading into it a presidential nature of the political regime (article 54), as the Court also does, poses a serious problem. A presidential system of government is not necessarily the best, or only, political system capable of addressing challenges a society faces in terms of entrenching the rule of law, democracy and a culture of constitutionalism. Denying the constituent power of the possibility to divest themselves of a form of government if this becomes predatory, unsustainable or unfit for purpose seems rather inconsistent not only with the Court’s efforts to promote a democratic culture but also with the inherent right of people under international law to choose their leaders and form of government. In any case, one critical question this decision raises is what is now the place and meaning of popular sovereignty if it can be trumped by the doctrine of fundamental options? There is no immediate answer but it is clearly an issue that will occupy an important place in the evolution of constitutionalism, democracy and constitutional governance in Benin.