Togo’s popular protests and demands for constitutional reform

Despite recurrent political crisis, the Togolese government has successfully manipulated the constitution and avoided the implementation of successive political agreements. The latest popular protests represent the most serious opposition yet. Nevertheless, the government has chosen to bypass the opposition and to present proposed reform to reinstate the two-term limit for constitutional referendum. This manoeuvre falls short of the demands underlying decades of political crisis and is likely to worsen the political insecurity – writes Dr Kangnikoé Bado.

Introduction

Togo has been led by the Gnassingbé family for all but a few initial years of its post-independence existence. Despite repeated political crisis and cross party agreements, the government and ruling party have consistently failed to respect their commitments to opposition parties and to implement the necessary constitutional reforms. This habitual resort to delaying tactics has led to ongoing popular protests that seek to reinstate crucial elements of the original version of the 1992 Constitution, which was drafted following a national conference and overwhelmingly approved in a referendum. The protesters particularly seek the reintroduction of presidential term limits with retroactive effect.

Togo has been led by the Gnassingbé family for all but a few initial years of its post-independence existence.

The ruling party has rejected opposition proposals for constitutional reform, and instead tabled and approved its own constitutional reforms reinstating term limits, but without retroactive effect, thus allowing President Faure Gnassingbé to complete his current term, and to run for two more terms. As a result, opposition parties boycotted the National Assembly. Because of that controversy, the Assembly could not reach the 4/5 majority required to avoid the referendum requirement. The Speaker has indicated that a referendum will be organised in the coming days.

Background to the demands for constitutional reform

After gaining independence in April 1960, Togo underwent a turbulent political history marked especially by the assassination of the first democratically elected president and the subsequent establishment of an authoritarian regime. In January 1963, President Sylvanus Olympio, who successfully led the struggle for independence, was killed in a bloody military coup led by a group including Gnassingbé Eyadéma, former president and father of current President Faure Gnassingbè. A civilian, Nicolas Grunitzsky, took office and led the country until 1967, when the army took over and installed its chief, Gnassingbé Eyadema, as president of the country. Eyadema set up a new party (Rassemblement du Peuple Togolais) in 1969, won one party elections held in 1979 and 1985, and adopted a constitution in 1980. In the early 1990s, his one party dictatorship and brutal regime faced growing opposition. In June 1991, he reluctantly agreed to hold a national conference. However, when the conference declared itself ‘sovereign’, he refused to accept its conclusions as binding. Nevertheless, the national sovereign conference revoked the 1980 Constitution, adopted a draft constitution instituting a multiparty system, and forced Eyadema to surrender power to a transitional government.

In 1992, a new Constitution was approved in a referendum by an overwhelming majority of the Togolese (97.4 per cent). Under the Constitution, the Togolese Republic is based on the principle of government of the people, by the people and for the people. In that spirit, the preamble states that any political regime founded on arbitrary rule, dictatorship or injustice should be fought. The president is elected by direct universal suffrage for a five-year term, renewable only once, through a majority two-round electoral system.  

The first multiparty presidential election was held in August 1993. Gnassingbé Eyadéma won by default as the opposition boycotted the poll, alleging serious irregularities during the electoral process. In 1998, Eyadema won a second term under contestable conditions. A political deadlock ensued, which only eased after the signing of an agreement among all political parties in 1999. Eyadema also publicly promised to leave office after his second and final term.

In December 2002, the National Assembly approved constitutional amendments removing presidential term limits and changing the voting system for presidential elections. 

Opposition groups also boycotted the October 2002 legislative elections, the elections, again denouncing the seriously flawed electoral process, and the failure of the government to abide by the 1999 agreement, which included the revamping of the membership of the Electoral Commission. The government’s decision not to reform the electoral commission and the boycott of the opposition enabled the ruling party to win 72 of the 81 parliamentary seats. This gave Eyadéma a large majority in the National Assembly to amend the Constitution. Accordingly, in December 2002, at the request of Eyadéma, the National Assembly approved constitutional amendments removing presidential term limits and changing the voting system for presidential elections from two rounds to one round system where whoever wins the most votes will become president, even if they receive less than 50 per cent of the votes.  The amendments paved the way for Eyadéma’s indefinite stay in power.  Indeed, Gnassingbé Eyadéma was re-elected in 2003.

In addition, the amendments included a requirement for presidential candidates to reside in Togo for at least one year prior to the election. That specific amendment targeted the main opposition leader, Gilchrist Olympio, who was residing in exile, and could not fulfil the new constitutional requirement. Furthermore, with a view to preparing the ground for an eventual hereditary succession, the minimum age to be a candidate to the presidency was lowered from forty-five to thirty-five years. 

In February 2005, President Gnassingbé Eyadéma suffered a heart attack and died aboard the presidential jet while seeking urgent medical treatment abroad. On the same day, leaders of the Togolese armed forces declared his son Faure Gnassingbè as the new president. Faure Gnassingbè had won a seat in the National Assembly following the 2002 legislative elections, and joined his father´s cabinet as Minister of Mines in 2003.

The amendments to the rule on incompatibility allowed Faure Gnassingbé, who was Minister of Mines, to become on that same Sunday successively a Member of the National Assembly, President of the National Assembly and interim President of the Republic.

This declaration installing Faure Gnassingbé was a blatant violation of the constitutional succession rule where in case of vacancy of the presidency due to death, resignation or incapacity, the President of the National Assembly provisionally exercises presidential functions. The army and senior officials of the regime proceeded with a number of legally dubious manoeuvers. First, the government closed land, air and maritime borders of the country to prevent the President of the National Assembly, Mr. Fanbaré Ouatara Natchaba, who was abroad, from returning and assuming the functions of interim president. Subsequently, the Assembly held an extraordinary session on Sunday, 6 February 2005 and approved a number of important reforms. First, the prohibition on constitutional amendments during an interim period was amended, which was followed by amendments related to the duration of the interim period. In addition, relevant provisions of the Electoral Code affirming the incompatibility of the functions of members of parliament and cabinet membership were removed. The amendments to the rule on incompatibility allowed Faure Gnassingbé, who was Minister of Mines, to become on that same Sunday successively a Member of the National Assembly, President of the National Assembly and interim President of the Republic.  

Despite this clear violation of the Constitution, on Monday, 7 February 2005, the Togolese Constitutional Court confirmed Faure Gnassingbè as interim President. This attitude of the Constitutional Court was criticised as ‘treason’ and many public demonstrations were organized to call for the restoration of the constitutional order. Apart from domestic actors, international organisations such as the Economic Community of West African States (ECOWAS), the African Union, and the European Union condemned what they called a ‘constitutional Coup d´Etat’.

Under growing pressure from all these actors, Faure Gnassingbé stepped down on 25 February 2005. The first Vice-President of the National Assembly, Abbass Bonfoh, an influential member of the ruling party, was elected president of the Assembly and became the acting president of the country pending the holding of elections. He organized a presidential election where Faure Gnassingbé faced Emmanuel Bob Akitani, the main candidate designated by a coalition of six opposition parties. The electoral process was marred with serious violations of fundamental rights and the Minister of the Interior, although a member of the ruling party, called for the postponement of the presidential election. He was immediately dismissed and found refuge in the German embassy in Lomé, Togo. 

A Comprehensive Political Agreement was signed following the post-election violence in 2005. 

The presidential election was held on 24 April 2005 and despite serious violations of the electoral law, the National Independent Electoral Commission declared the election free and fair and Faure Gnassingbé as the winner. Large scale protests followed the publication of the results of the presidential election where at least 500 people were killed.  To address years of political impasse, Faure Gnassingbé and opposition parties signed the 2006 Comprehensive Political Agreement (Accord Politique Global) in Burkina Faso, which led to the formation of a government of national unity.

Failure to implement the 2006 Comprehensive Political Agreement

Under the Political Agreement, the new government of national unity would organize the 2007 legislative elections. The first priority of the government of national unity would be the implementation of the recommendations and the commitments undertaken by the signatories. The key recommendations related to institutional and constitutional reforms, the revision of the electoral code and the reform of the national security forces. The signatories agreed that the National Independent Electoral Commission (CENI) and the Constitutional Court should be reformed and a Senate put in place. Specifically, all the institutional and legislative reforms should be in line with the original version of the 1992 Constitution, including the restoration of presidential term limits. Moreover, all the signatories agreed that necessary modifications of the electoral framework should be made in order to guarantee free, democratic and transparent elections. 

Draft constitutional amendments giving effect to the Agreement were rejected by the ruling party in 2014 and 2015.

Although the national unity government was formed on 20 September 2006 under Prime Minister Yawovi Agboyibo, an influential member of the opposition, all the efforts of the opposition to implement fundamental provisions of the agreement failed, as the ruling party (Rassemblement du Peuple Togolais, today Union pour la République) was not willing to implement some key provisions of that agreement. In the meantime, Faure Gnassingbé was re-elected as president in 2010 and in 2015 for a third term.

On 4 April 2012, many human rights organisations and opposition parties created an alliance called ‘Collectif Sauvons le Togo’ with the aim of pressuring the ruling party to implement the provisions of the Agreement and to respect the rule of law and democracy. Their efforts led to the elaboration of draft constitutional amendments which were, nevertheless, rejected by the ruling party in 2014 and 2015.

On 28 February 2017, the opposition party (Alliance Nationale pour le Changement) brought an action against the ruling party before the Constitutional Court to force the Bureau of the National Assembly (Bureau de l´Assemblée Nationale) to table a draft law on constitutional amendments proposed by the opposition to the plenary session of the Assembly. The Court affirmed that this draft law on amendments was called for by the Political Agreement and concluded that the tabling of a draft constitutional amendment does not require consensus before the vote as alleged by the ruling party. The Court ordered the Bureau to submit swiftly to a vote the draft law on constitutional amendments. Despite the decision, the ruling party delayed the process until the opposition staged mass protests on 19 August, and on 6 and 7 September 2017. Also some members of national security forces are against reforms because of fear of potential legal proceedings against them for violations they have committed over the years.  Even some external actors, such as France, are concerned about possible constitutional reform, as it could undermine their interests safeguarded by the current government.    

Under the reforms approved in September 2017, President Faure Gnassingbé would finish his current term and could run for two more terms.

On  19 August 2017, the Parti National Panafricain (PNP), founded in 2014 by Tipki Atchadam, organized the first protest to force the government to restore the 1992 Constitution and to bring an end to the fifty-year Gnassingbé ‘dynasty’. National security forces brutally repressed the protests and some people were killed and many were injured. Other opposition parties were shocked by the degree of violence and joined the protest movement. Key opposition coalitions and the PNP called for further public demonstrations on 6 and 7 September across the country.

Despite the popular protests and pressure from opposition parties and prominent human rights groups, the ruling party has resisted opposition demands for constitutional reforms. Instead, it approved on 19 September a constitutional amendment reinstating term limits in a session the opposition boycotted. The approved reforms not only fail to address other opposition demands, but also mean that the new term limits would not apply to the current and previous terms of President Faure Gnassingbé. For that reason, the amendment did not receive the 4/5 majority required to avoid a constitutional referendum. The Speaker of the National Assembly has indicated that a referendum will be organised soon.

Contentious substantive issues 

Overall, the protesters and opposition groups would like to see the restoration and the immediate retroactive application of the original version of the 1992 Constitution, particularly in relation to term limits. Indeed, the immediate resignation of Faure Gnassingbé has taken central stage, beyond demands for constitutional reform. The consequence of this restoration would be that Faure Gnassingbé has to step down as the Constitution prohibits anyone from exercising more than two presidential terms. There is no legal obstacle to the retroactive effect of the constitutional amendments as the Constitutional Court has already confirmed the possibility of retroactive application of constitutional amendment.

Togo is the only country in the West African region that objects to what is becoming regional trend towards a two-term limit for presidents. 

Regional pressure may also prove to be important here.  Togo and The Gambia were until early 2017 the only countries within the ECOWAS Community where a democratic changeover of power had not happened since the beginning of the democratization process in the 1990s. The constitutional rule of a two-term limit for presidents appears to be gaining the force of common practice in the West African region. At an ECOWAS Summit held in Accra (Ghana) in May 2015, a protocol was proposed to impose a region-wide two-term limit for presidents. Togo and The Gambia were the only countries that categorically rejected the protocol. However, things have changed in the meantime, as former Gambian dictator Yahya Jammeh lost presidential elections and was forced by ECOWAS to step down on 21 January 2017.  Under the new leadership, Gambia is expected to reinstate presidential term limits and to undertake other constitutional reforms. Accordingly, today, Togo is the only country that objects to what is becoming regional trend towards a two-term limit for presidents. Two former presidents in the region (Olusegun Obasanjo of Nigeria and Jerry John Rawlings of Ghana) have publicly expressed support for the claims of the opposition and the people for a change of government in Togo.

Opposition groups also consider the plurality one-round voting system for presidential elections particularly not adapted to a multiparty system and seek the restoration of the original two-round system. The two-round system will allow opposition groups to field candidates of their choice in the first round, and rally behind a preferred candidate in the second round.

Opposition groups consider the Constitutional Court and the National Electoral Commission in their current configurations as favouring the ruling party.

While the reinstatement of the above provisions is the most urgent and contentious, the demands for reform go beyond. Opposition groups also consider the Constitutional Court and the National Electoral Commission in their current configurations as favouring the ruling party. Calls for reform thus include a request for constitutional amendments related to the reform of these key institutions. Under the current Constitution, the President of the Republic, the National Assembly and the Senate, whose powers are exercised by the Assembly as it is not in operation, each appoint three members of the Constitutional Court for a renewable seven-year term. Considering the dominance of the ruling party, opposition groups seek to reduce the powers of the political entities and enhance the involvement of professional groups, such as association of judges and university professors, in the appointment process. The National Electoral Commission has seventeen members: five nominated by the legislative majority, five by the parliamentary opposition and three by extra parliamentary oppositions parties. Civil society groups nominate three members and the government one member. While this process may appear representative, manipulations have allowed the ruling party to consistently control the Commission.    

The ruling party has failed to honour more than twenty political agreements since the beginning of the democratisation process in Togo.

Moreover, more than two million Togolese out of a total population of about seven million, live in the diaspora, with many having fled the country because of persecution or serious human rights violations in the 1990s.  The opposition demands include giving the diaspora the right to vote, in particular as they continue to contribute greatly to the social and economic welfare of the country.

Concluding remarks: Toward a new transition to democracy in Togo

The political situation prevailing in Togo is worrisome. The current plan to bypass the opposition and to call a constitutional referendum to approve amendments that fall short of the demands underlying the political crisis of the last two decades is likely to worsen the political insecurity and undermine the compromise and consensus necessary for a stable transition to a democratic system. The ruling party has failed to honour more than twenty political agreements since the beginning of the democratisation process in Togo. For that reason, both the opposition and the ruling party are under increasing pressure from the Togolese, including those living in the diaspora, to take decisive steps to enact political reforms and to ensure a transfer of power from the Gnassingbé family and the army to a democratically elected civilian government.

By choosing the path of referendum, the ruling party will force the opposition to a dilemma.

Nevertheless, there does not seem to be a breakthrough because opposition groups continue to boycott the National Assembly, and the ruling party is reluctant to implement crucial elements of the needed constitutional reforms, particularly the immediate application of any presidential term limits, and has opted to bypass the opposition. Moreover, by choosing the path of referendum, the ruling party will force the opposition to a dilemma: whether they call to vote against or boycott the referendum, the ruling party is likely to win the referendum, since the Constitutional Court and the Electoral Commission are closely linked to the ruling party. They are therefore likely to reject the referendum as illegitimate.

Similar constitutional manoeuvers were employed to allow the former president of Burkina Faso, Blaise Compaoré, to run for office upon completing his second and final term. The manoeuvres ultimately failed, after popular protests forced him to flee the country in October 2014. If the Togolese government fails to heed the popular demands, the same scenario might happen in Togo to bring to an end the 50 years long autocratic system. Such a development would represent the beginning of a second transition to democracy after the first National Sovereign Conference of 1991 in Togo.

Dr Kangnikoé Bado is a Togolese researcher at the Max Planck Institute for Social Law and Social Policy, Munich, Germany.