Chad's Proposed New Constitution: Between Hopes for Refoundation and an Uncertain Future
In late 2023, Chad’s electorate will decide on a new draft constitution, which signals hope for return to civilian rule and a refoundation based on strengthened judicial independence and institutional reform. Yet, as the draft is based on a unitary state model, it is sidestepping a pivotal debate in Chad about federalism. And with military leaders permitted to contest post-transition elections, concerns emerge about the transitional president consolidating power and extending his father’s three-decade legacy. Without addressing deep-rooted systemic issues, Chad's march towards a new state might further deepen divides – writes Leubnoudji Tah Nathan
On 27 June 2023, Chad’s transitional parliament adopted with a 96 per cent majority the preliminary draft constitution of the Republic of Chad. This draft, previously reviewed and adopted by the transitional government, was declared as a key step in the return to civilian rule and will be put to referendum on 17 December 2023. Does this draft constitution signal political will for a refoundation of Chad after the transition period, or is it a continuity of legacy politics and entrenched interests?
A Boomerang Effect of the Chadian Exception?
On 20 April 2021, a group of army generals announced the death of President Idriss Déby Itno following a battle between the army and a rebel group called the Front pour l'Alternance et la Concorde au Tchad (Front for Change and Concord in Chad). This rebel force, led by Mahamat Mahdi Ali, made a rapid advance of more than a thousand kilometers in two days to reach a position some 300 kilometers from N'Djaména, the capital of Chad. Field Marshal Idriss Déby Itno was forced to go to the front, where he appears to have died. The announcement of his death, which came as a surprise to all Chadians, not only put an end to an increasingly personal 31-year rule, but also ushered in a transition period headed by 15 generals under the leadership of the deceased's son, Mahamat Idriss Déby Itno. Debates have arisen about the nature of this transition: was it a coup or not? The question divides along the lines of those who defend or oppose the regime.
This unique situation, “the Chadian exception”, allowed the country to escape sanctions by the African Union and, by extension, the international community . . .
Starting from the premise that a coup d’état involves the illegal, forceful, often brutal overturning of power by a person with authority, it is clear that such an act entirely violates the constitutional order. However, in the case of Chad, some argued that the seizure of power by the Transitional Military Council (CMT) occurred because the democratic process had been interrupted. The death of the democratically elected president, Field Marshal Idriss Déby Itno, led to a power vacuum. But, according to the generals who had just seized power, and contrary to Article 81 of the 2018 Constitution, the President of the National Assembly refused to ensure the continuity of power. This unique situation, “the Chadian exception”, allowed the country to escape sanctions by the African Union and, by extension, the international community. However, the fact remains that the first major step taken by the CMT was the suspension of the Constitution, dissolution of the National Assembly, and enactment of a transitional charter.
In pursuit of peace, the transitional government began negotiations with politico-military groups, which led to the Doha Peace Agreement. This paved the way for the National Sovereign and Inclusive Dialogue in N'Djaména from 20 August to 8 October 2022. Nearly forty armed groups took part in the Dialogue, and around 1,400 people, but it was boycotted by important opposition groups including Les Transformateurs political party, the Wakit-Tamma citizen platform, and nine of the armed groups that were present in the peace negotiations in Doha. The aim of the National Sovereign and Inclusive Dialogue was to enable exchanges and to overhaul the country's institutions following the military takeover. But the ultimate aim was to lay the foundations for Chad’s reconstruction, beginning with a restoration of the constitutional order. One of the first recommendations from the Dialogue was to set up new institutions to oversee the transition period.
Institutions of the Transition
Originally, the transition was due to last 18 months, but was extended for a further 24 months by the National Sovereign and Inclusive Dialogue. The proclamation also ostensibly dissolved the Transitional Military Council, but named Mahamat Idriss Deby Itno as transitional president and allowed military leaders to run for future elections.
The National Transitional Council (CNT), functioning as a transitional parliament, was enlarged after the National Sovereign and Inclusive Dialogue from 93 to 197 members. Its members are appointed by the President of the Transition. At the helm is the Transitional Government, made up of a Prime Minister appointed and removable by the President of the Transition and ministers. A reshuffle led to the formation of a Government of National Unity on 14 October 2022.
Another institution set up was the National Commission for the Organisation of the Constitutional Referendum (CONOREC). At the same time, a preliminary draft constitution prepared by a 15-member ad hoc committee was submitted to the Council of Ministers for deliberation before being examined in depth by a special commission set up within the CNT. On 1 June 2023, Chad’s transitional government reviewed and adopted the preliminary draft constitution of the Republic of Chad.
Major Reforms in the New Draft
The draft constitution is based on the historical 1996 Constitution, which is preferred by Chadians to the 2018 Constitution because it is the result of consultation and consensus reached at the National Sovereign Conference of 1993.
There are two notable changes in this draft constitution: the return of the semi-presidential system and the reintroduction of a bicameral parliament.
There are two notable changes in this draft constitution: the return of the semi-presidential system and the reintroduction of a bicameral parliament. The 2018 Constitution introduced a system known as the "integral presidency" (without a separate head of government). While the 2020 revision introduced a vice-president, it did not restore the semi-presidential system now included in the draft of the new constitution. The Senate, while outlined in Article 118 of the 2020 revision, was never established. Furthermore, this draft aims to restore certain democratic values lost through successive amendments to the 1996 Constitution, and introduces new institutions.
- Reaffirmation of the independence of the judiciary
A significant innovation comes in the reaffirmation of the principle of the separation of powers, more precisely in strengthening the independence of the judiciary. As in previous constitutions, the draft formally provides that ‘the judicial power is independent of the executive power and the legislative power’, but it takes a further step. The draft entrusts the presidency of the Superior Council of the Judiciary to the President of the Supreme Court, a departure from the current constitution where the President of the Supreme Court holds a lesser position of second vice-president, behind the President of the Republic and the Minister of Justice.
Also related to the judiciary, the High Court of Justice, currently a chamber of the Supreme Court, regains its status as an independent institution. It is the only court empowered to judge the President of the Republic, the presidents of major institutions, and members of the government as well as their accomplices in cases of high treason and similar cases. At the same time, the military justice system is being reorganized from two chambers to three with the creation of the Military Court of Appeal, intermediary between the constitutionalized military tribunals and the High Military Court.
- Strengthening advisory, regulatory, mediation and control institutions
In the draft constitution, former institutions of the Republic are restored or refurbished and new ones are created. Formerly the third chamber of the Supreme Court, the Constitutional Council will regain control over reviewing the constitutionality of laws, international treaties and agreements, organic laws and other laws on public freedoms and fundamental rights. It is the institution that will administer the oath of the elected President of the Republic, rule on disputes in national elections, and regulate the functioning of institutions and the activities of public authorities, among other things. As in the 1996 Constitution, the 2023 draft foresees a mechanism to review the constitutionality of laws before they are promulgated (ex-ante judicial review) (Article 179) as well as an incidental judicial review procedure allowing litigants to request an ordinary court to refer an issue of constitutional interpretation to the constitutional court (ex-post judicial review) (Article 180). The Court of Auditors, in charge of controlling the execution of the state budget and public finances, is bolstered in its structure. Under the draft it has 21 members, enlarged from 13, and includes, in addition to specialists in management, economics, taxation, budget law and accounting, representatives of senior members of the judiciary.
The creation of the National Election Management Agency, a new independent and permanent national institution, likely aims to instill greater independence and transparency in the management of elections.
The National Commission for Human Rights, an independent administrative authority with a mandate to promote and protect human rights and fundamental freedoms, is now constitutionalized. Three other advisory institutions are also maintained. These are the Economic, Social, Cultural and Environmental Council, the High Council of Traditional Chiefdoms, and the High Authority for Media and Audiovisual, a regulatory body for the media and the promotion of freedom of expression and communication. The creation of the National Election Management Agency, a new independent and permanent national institution, likely aims to instill greater independence, impartiality, integrity, transparency, professionalism and autonomy in the management of elections. Historically, elections have been organized by an ad hoc electoral commission under the authority of the Ministry of Public Administration.
From the ashes of the old mediation institute dissolved in 2018, another institution was created: the Mediator of the Republic. It is an independent administrative authority which will participate in the peaceful settlement of conflicts, receive complaints concerning the functioning of the public administration, autonomous communities, public establishments and other entities vested with a public service mission.
Federalism, a Gordian Knot in the Rebuilding of Chad
The adoption of the new constitution will not only provide the country with a new fundamental law, but will also signal the return to constitutional order. At the Inclusive and Sovereign National Dialogue (DNIS) popular political will was for the refoundation of Chad. However, this refoundation of Chad requires deconstruction of the old system. In the DNIS, as at the National Sovereign Conference in 1993, the question of the form of the state was one of the major concerns of Chadians. Two forms of the state were in competition in the debates at the Dialogue: the federal state and the decentralized unitary state adopted in 1996.
Two forms of the state were in competition in the debates at the Inclusive and Sovereign National Dialogue: the federal state and the decentralized unitary state adopted in 1996.
To this end, expectations were high for the National Dialogue’s conclusions on Theme 2: “Form of the State, Constitution, Institutional Reforms and Electoral Process”. However, the resolution on this matter left the participants of the DNIS and indeed all Chadians speechless. It stated: ‘On the new Constitution and the form of the State - Organize a single coupled referendum where the question of the form of the State and that of the revised 1996 Constitution will be asked’. The National Dialogue Commission Report therefore did not propose anything and the Dialogue did not resolve this fundamental question for the rebuilding of Chad.
At first glance, the question of federalism might not seem like a stumbling block in 2023, since the National Sovereign Conference of 1993 was on the brink of endorsing a federal state structure. However, to minimize potential pitfalls, a consensus was reached, initially, for an intermediate stage: decentralization. Today, federalism has gained wide acceptance by Chadians, who approve it by 71 per cent according to the results of an opinion poll carried out by the Chadian Journalist Reporters Network and published on 6 January 2023.
Federalists and Unitarists: A Showdown That Might Not Take Place
Federalists argue that the unitary state model, after 63 years of experience, has shown its limits. Mr. Caman Bédaou Oumar, one of the spokesmen for the federal bloc, asserts that decentralization, adopted in 1996, was a concerted choice by Chadians at the National Sovereign Conference to clear the way for a transition to a federation. After 15 years of implementation, the constitutional reforms of 2005 and 2013 presented a variation through a “highly decentralized unitary state”. Mr. Caman Bédaou Oumar contends that Chad has exhausted the possibilities within the unitary state model. Critics pinpoint excessive centralization of power as at the root of all the ills from which Chad suffers. So, for the federalists, if Chad aspires to a new system, it must be federalism. For them, only federalization would permit better management of skills and resources as well as greater citizen participation in decision-making.
Defenders of the unitary state, represented by the regime in place for 40 years, believe that a federation would lead to a split of the country. For this reason, only one draft constitution will be presented to voters for the referendum set for 17 December 2023, based on a unitary state model. It is important to note that initially there was a discussion in the DNIS on organizing two referendums, one on the form of the state, and another on adopting a new constitution, but this resolution was omitted from the final report.
Dr. Abdoulaye Saber Fadoul, instrumental in driving institutional reforms under Idriss Déby Sr., expressed his disappointment with this duplicity of the government, which calls into question the conclusion of the Dialogue and may jeopardize the refoundation project of Chad: ‘Unfortunately, once again, the constitutional shift is being poorly negotiated by this sort of Russian roulette executed with a revolver with a fully loaded cylinder. Indeed, under these conditions, whatever the outcome of the referendum, the fractures will only be greater and the Transition will only have served that purpose’. Having served as both Chief of Staff to the President of the Transitional Military Council and minister under Idriss Déby Sr. for almost a decade, Dr. Abdoulaye Saber Fadoul is familiar with the methods of the system in place and knows that the draft constitution will be adopted. For him, whatever the outcome of this referendum, a divide is inevitable.
Towards an Adoption Against Popular Will
It is difficult to predict whether the opposition, especially the federalists, will opt for a boycott of the referendum or call for a vote against the draft constitution. Dissenting voices are already emerging. On August 22, an alliance of political parties, actors and independent figures united in a platform called Plateforme républicaine de barrage au processus référendaire et anti succession dynastique (Republican Platform Against the Referendum Process and Dynastic Succession). This group issued a statement to the press expressing their determination to prevent the referendum from being held. Their other declared aim is to set up an anti-dynastic succession roadblock. To this end, they have announced a robust action plan dubbed "120 days of citizen activism" prior to the referendum. However, to be enshrined as the state’s fundamental law, the draft constitution ultimately needs to be approved in a referendum by a simple majority of votes cast (Articles 279 and 280 of the transitional charter). Historically, the regime in power never counts on the votes of Chadians. If there is a vote, the draft constitution will be adopted.
As the situation unfolds and things become clearer, it appears that the aim of the future constitution will be to legitimize the power of Mahamat Idriss Déby Itno, who took his father's chair on 21 April 2021. The transition has fallen like a cleaver carried by a Transitional Military Council of 15 generals who were unable to fulfill their commitment to return power to a civilian government after 18 months. Then came the Inclusive and Sovereign National Dialogue, which created mixed reactions among Chadians. While major questions such as the form of the state were avoided during the National Dialogue, the confirmed eligibility of transitional leaders for election, for example, is one of the key resolutions. Indeed, based on the principle that no one should be both judge and jury, a prevailing sentiment among Chadians was that the DNIS should confirm the ineligibility of the transitional leaders to assume power post-transition, which was also expressed by the members of the CMT on 21 April 2021. On the contrary, the DNIS recommended that, without exception, all Chadians who wish to run for election should be free to do so. Some commentators say that the National Dialogue’s only goal was to keep Mahamat Idriss Déby Itno in power during and after the transition. If this is the case, the rebuilding of Chad will remain only wishful thinking and the reconciliation of Chadians a distant prospect. Indeed, we are faced with the logic of the system and of the actors involved. We can change the constitution, we can replace all the actors, but as long as the system remains in place, no change is possible.
Leubnoudji Tah Nathan is the Publishing Director of Le Mirador newspaper, Vice-President of the Union of Chadian Journalists, and Executive Secretary of the Chadian Journalist Reporters Network.
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Suggested citation: Leubnoudji Tah Nathan, ‘Chad's Proposed New Constitution: Between Hopes for Refoundation and an Uncertain Future', ConstitutionNet, International IDEA, 4 October 2023, https://constitutionnet.org/news/chads-proposed-new-constitution-between-hopes-refoundation-and-uncertain-future