Courts vs Incumbents: Guaranteeing Alternation of Power in the Central African Republic

On 23 September 2022, the Constitutional Court of the Central African Republic issued a landmark decision nullifying presidential decrees to establish a constitution drafting committee, thus thwarting the President’s plan for a constitutional referendum and amendment of the presidential term limit. Following its previous decision, that the presidential mandate is protected by a ‘constitutional lock’, the Constitutional Court has consolidated its position as a key player in promoting constitutionalism in the country. Nevertheless, the President’s reaction to the decision will be of paramount importance – writes Dr. Sonia Vohito  

On 23 September 2022, the Constitutional Court of the Central African Republic (CAR) rejected as unconstitutional a series of presidential decrees related to the establishment of a Constitution Drafting Committee and the appointment of its members. By doing so, the Constitutional Court curtailed the CAR President’s intention to abrogate the existing 2016 Constitution and to replace it with a new one – allowing him to review the currently unamendable presidential term limit. It is hoped that the decision of the Constitutional Court will halt months of political debates and litigation pertaining to the modalities and pertinence of a constitutional reform in the country.

The “Republican Dialogue” and proposed amendment

In March 2022, during a "Republican Dialogue" convened by President Faustin-Archange Touadéra after his re-election, members of the majority party proposed an overhaul of the 2016 Constitution among the final recommendations to be adopted by the dialogue participants. Opposition parties – which had boycotted the dialogue – and civil society groups strongly opposed the proposal, arguing that a constitutional reform would provide an opportunity for the President to extend his stay in office. President Touadéra is expected to complete his second and final term in 2026. In May 2022, a group of parliamentarians from the majority party, MCU, which is also the party of the President, submitted a constitutional amendment bill to the National Assembly. The proposed constitutional amendments to the 2016 Constitution included the abolishment of presidential term limits, the creation of the office of Vice-President, the prohibition of dual citizenship for presidential candidates, as well as the modification of the composition of the Constitutional Court (wherein heads of state would become ex officio members).

The Government explicitly stated that the adoption of a new constitution would enable it to bypass constitutional obstructions and rewrite provisions that are deemed unamendable.

In July 2022, during an extraordinary meeting of the Council of Ministers, the Government endorsed the terms of the constitutional amendment bill but strategically opted to repeal the existing Constitution and write a new one. The Government explicitly stated that the adoption of a new constitution would enable it to bypass constitutional obstructions and rewrite provisions that are deemed unamendable. It referred mainly to article 153 of the Constitution, relating to unamendability of provisions relating to the number and duration of presidential mandates. On 9 August 2022, in a memo addressed to the Government, on behalf of the Bureau of the National Assembly, the President of the National Assembly urged the Government to initiate a constitutional referendum procedure and establish an inclusive constituent body. Consequently, during his address to the Nation on 13 August 2022, President Touadéra confirmed his intention to initiate a constitutional reform. He invoked not only the above-mentioned National Assembly memo but, more importantly, “popular demand” for a new constitution adapted to the country’s social, political, and environmental circumstances.

It was against this background that President Touadéra signed four decrees to establish the Constitution Drafting Committee and appoint its members. On 26 August 2022, he signed his first decree establishing a committee responsible for drafting a new constitution for CAR (Decree no. 22.348). The Drafting Committee was mainly tasked with developing a draft constitution and related documents which would be submitted to the President no later than three months from the date of the Committee’s installation. The Drafting Committee was composed of fifty-three members representing various viewpoints, appointed by their respective entities on the basis of their expertise, experience, credibility and moral integrity. The Committee included representatives of Government institutions, National Assembly, independent constitutional bodies, political parties, civil society, academics, traditional leaders and minority groups.

Political opposition and civil society petitions against the presidential decrees

On 31 August 2022, opposition parties, including a coalition of eleven opposition parties (the Republican Bloc for the Defense of the Constitution (BRDC)), filed a petition against the Decree of 26 August 2022 before the Constitutional Court. The petitioners submitted that the current Constitution was silent on the President’s power to organise a constitutional referendum with the aim of repealing the Constitution. They argued that the constitutional reform process was unconstitutional since it intended to review unamendable constitutional provisions (i.e., articles 35 and 153 of the Constitution).  Another decree contested by civil society members before the Constitutional Court was Decree no. 22.367 of 12 September 2022, confirming the appointment of members of the constitution Drafting Committee (which was pursuant to Decree no. 22.348 of 26 August 2022). Civil society groups argued that the initial court petition by the opposition parties had suspended the applicability of the presidential decree of 26 August 2022. Hence, President Touadéra had no legal grounds for signing subsequent decrees until the Constitutional Court had made its decision on the initial decree. Crucially, the claimants contended that the Government had no constitutional basis for organizing a referendum to adopt a new constitution since article 152 of the Constitution, pertaining to the modalities of a constitutional referendum, only refers to a constitutional “revision” and not repeal nor replacement.

The Constitutional Court’s ruling

In a ground-breaking decision, on 23 September the Constitutional Court addressed all petitions filed against the presidential decrees issued in the context of the proposed constitutional referendum. On the proposed abrogation of the 2016 Constitution and its replacement by a new one, the Court ruled that the powers vested in the Bureau and President of the National Assembly – whose memo President Touadéra used to partly justify the reform drive – are merely powers of management and administration. The Court concluded that they do not have any constitutional power to initiate the repeal of the Constitution, nor ask the Government to set up a constituent body. Similarly, the Court found that there is no constitutional provision allowing the President to initiate the abrogation of the Constitution and establish a constituent body.

Regarding the constitutional consequences of the repeal of the Constitution, the Court ruled that the abrogation and entry into force of a new constitution would equally lead to the abrogation of the President’s and parliamentarians’ current electoral mandates. New elections would therefore need to be organised. Crucially, the Constitutional Court defined the typical circumstances that could justify the abrogation of a constitution, including state disruption such as a coup d’état or when there are imperative reasons to change the very nature of a political regime. The Court found that CAR was not in such a situation. It therefore concluded that abrogating the Constitution in the current circumstances would amount to violating the constitutional order. It declared the four presidential decrees related to the establishment of a Constitution Drafting Committee and the appointment of its members unconstitutional and annulled them.

The Court highlighted that only the National Assembly and the Senate represent “popular sovereignty” and can initiate a referendum.

On the constitutional amendment and the organisation of a constitutional referendum in CAR, the Court invoked article 152 of the Constitution, which provides for the involvement of both the National Assembly and the Senate. However, since the CAR Senate has yet to be installed, the Court found that a constitutional amendment would be impossible and unconstitutional at this stage. The Senate has not been installed because Senators are elected by local elected officials, and local elections are only expected to take place in January 2023. The Court highlighted that only the National Assembly and the Senate represent “popular sovereignty” and can initiate a referendum. It therefore ruled out “popular demand” – as cited by the President – as a mechanism for initiating a constitutional amendment.

In any case, in terms of unamendable constitutional provisions, the Court held that a constitutional referendum could not be used to amend the presidential term as it would be in violation of article 153 (which prohibits certain constitutional amendments including the term and duration of presidential mandates) and article 38 (articulating the exact wording of the presidential oath, which stipulates  that the president will observe the Constitution and refrain from amending the term and duration of the presidential mandate). It should be recalled that in June 2020, the CAR Constitutional Court held that article 153 was protected by ‘constitutional locks’ (verrous constitutionnel), and could not be amended. However, in the same decision, the Court seemed to imply that unamendable provisions could be changed through referendum, in accordance with the ‘constituent power’. The wording of the 23 September 2022 Court decision closes this interpretation, as it is unequivocal about the unamendable status of article 153 of the Constitution. The Court even invoked the nonretractable nature of an oath as per article 38 of the Constitution.

Conclusion

With this major decision, the Constitutional Court has once again consolidated its position as a key player in promoting constitutionalism and peace in the country. Both opposition parties and allies of the majority party have remained mobilised through demonstrations and intimidations, mainly from supporters of the constitutional reform. Special Advisor to the President, Fidèle Gouandjika, was quoted as accepting the Court decision, while lamenting the Government had not consulted the Court before issuing the decrees. In support of a constitutional reform, the political party Front républicain initiated a petition calling for the organisation of a referendum which would ask CAR citizens whether they wish to hold a constitutional referendum. Nevertheless, the Court decision has the merit of including key constitutional requirements for initiating a constitutional amendment. The Government may want to prioritise the implementation of the Court’s recommendations (e.g., installation of a Senate) in order to hold a constitutional referendum in the near future. The decision of the CAR Constitutional Court is expected to send a clear message across Africa. It establishes that amendments to presidential terms are preventable phenomenon, should there be independent and enabling institutions protecting the constitutional order.

From a broader perspective, the CAR Court decision is evidence that the limitation of presidential terms can still be imposed on the incumbent president despite the apparent support of the political apparatus, including the parliament. Conducive circumstances such as the existence of a robust constitution, effective separation of powers and citizens’ direct access to Constitutional or Supreme Courts might be key elements for successfully enforcing presidential term limits. If implemented peacefully, the Court decision could set a ground-breaking example of constitutional democracy in the Central African Region and beyond. As for CAR, ultimately, it is hoped that the recurrent debate on the amendment of the presidential term under the 2016 Constitution will eventually come to a close and that any constitutional amendment initiated in the country will take place in a more consensual context and in the best interest of the people of CAR.

Dr. Sonia Vohito holds a PhD in comparative constitutional law from the University of Pretoria, Institute for International and Comparative Law in Africa, South Africa. She is a human rights and child rights specialist.

♦ ♦ ♦ 

Suggested citation: Sonia Vohito, ‘Courts vs Incumbents: Guaranteeing Alternation of Power in the Central African Republic’, ConstitutionNet, International IDEA, 29 September 2022, https://constitutionnet.org/news/courts-vs-incumbents-central-african-republic

Click here for updates on constitutional developments in Central African Republic.