Towards the Fourth Republic of Mali: Analysis of the Draft Constitution
As part of the political transition following the 18 August 2020 military coup, Mali's transitional government has overseen the process of drafting a new constitution to allow a return to constitutional order and civilian rule. The constituent process has been boycotted by key stakeholders, and some provisions of the new draft constitution – notably the concentration of power in the president and expanded role of the military – cause concern. However, barring any last-minute changes, the draft will be submitted to referendum - writes Professor Fousseyni Doumbia
Since its independence in 1960, Mali has had three constitutions and therefore three republics: the Constitution of 22 September 1960 (First Republic); the Constitution of 2 June 1974 (Second Republic); and the current Constitution of 25 February 1992 (Third Republic). The current Constitution has not been revised despite four failed attempts (in 1999, 2011, 2017, and 2019). This lack of reform, due in part to the rigidity of the review process, has not allowed the government to meet particular international commitments (including the West African Economic and Monetary Union (WAEMU) directive of 29 June 2000, requiring all member states to establish an independent Court of Auditors) or to respond to certain changing circumstances (including the commitment to extensive decentralization made in the Agreement for Peace and Reconciliation resulting from the Algiers process concluded in 2015 between the government of Mali and the Coordination of Azawad Movements). The 1992 Constitution has also survived three coups (22 March 2012, 18 August 2020, and 25 May 2021), but its time now appears to be running out.
The constituent process under a military-led transition
The process of drafting a new constitution is underway in Mali to allow a return to constitutional order following the 18 August 2020 military coup against President Ibrahim Boubacar Kéita. On 1 October 2020, the coup leaders adopted a Transitional Charter. The Charter provides for an 18-month political transition (later extended to 24 months) during which institutional and structural reforms must be adopted leading to new elections. This Transitional Charter complements the 1992 Constitution, and prevails in the event of contradiction between the two documents.
To define the roadmap for the transition, the transitional government organized the Assises Nationales de la Refondation (ANR) in December 2021, which were a series of large stakeholder meetings to lay the foundations for political and institutional reforms. Despite a boycott by dozens of political parties, participants in the ANR recommended the drafting of a new constitution.
To implement this recommendation, Colonel Assimi Goïta, the president of the transition, appointed a constitution drafting commission by decree. This commission was responsible for writing a preliminary draft of the constitution within two months, and then another commission was charged with finalizing the draft within two weeks. The Finalization Commission submitted the final draft of the new constitution on 27 February 2023, and its contents were ‘validated’ by the president of the transition.
While the Transitional Charter does not specify the procedure for adopting a new constitution, the transitional timeline calls for the draft constitution to be submitted to the people for approval by referendum, without a prior vote in the National Transitional Council, the interim legislative body. Originally scheduled for 29 March 2023, the constitutional referendum was postponed by the transitional government to allow the newly created Independent Election Management Authority to make necessary preparations for the vote.
Concentration of power in the president
The draft constitution envisages maintaining the political system of the 1992 Constitution but with significantly expanded presidential powers. The President, elected by direct universal suffrage, will be head of state and head of the executive. The President appoints the Prime Minister, the head of government, as well as the Council of Ministers after consultation with the Prime Minister. The Prime Minister and Council of Ministers are politically accountable only to the President (Arts. 57 and 78). As such, the President determines the policy of the nation (Art. 44), while the Prime Minister and his government implement it (Art. 76). In legislative matters, the President's powers have been greatly strengthened. The President may submit bills to parliament (Art. 119); may require parliament, through the government, to vote on a bill in a single vote only on those amendments proposed or accepted by the government (Art. 122); may request the parliament, through the government, to authorize time-limited ordinances on matters usually reserved for parliamentary law-making (Art. 121); and may submit to a referendum any question of national interest or any bill relating to the organization of state institutions after receiving the advisory opinion of the Constitutional Court (Art. 60). The President also has the power to dissolve the National Assembly (Art. 69). In addition, the President has significant discretionary powers of appointment in the civil and military administration (Art. 67). Furthermore, while the President of the Republic is now the head of the executive branch and is thus a political actor in his own right, the President is also the guarantor of the independence of the judiciary (Art. 134) and as such chairs the Supreme Council of the Judiciary (Art. 64). The draft constitution provides for an impeachment of the president by the legislature in cases of high treason, but the substantive and procedural requirements of this mechanism appear to be so onerous that it would be difficult to implement (Art. 73).
The draft constitution establishes a system of government that does not seem to ensure effective accountability between the different branches of government.
In other words, the President will have regulatory power, will be able to exert considerable influence over the legislative process (even though the executive is no longer politically accountable to parliament), will be involved in the management of the judiciary, and will have discretionary power to appoint much of the civilian and military administration. Thus, the draft constitution establishes a system of government that does not seem to ensure effective accountability between the different branches of government.
Despite these concerns, the draft constitution also includes several positive innovations compared to the 1992 Constitution, including adding an eternity clause to limit the number of presidential terms with a view to strengthening the guarantees of democratic alternation at the highest level of the state (Arts. 45 and 185); setting a single, non-renewable term for the members of the Constitutional Court and introducing a more inclusive and balanced panel of appointment authorities to guarantee greater independence of the Court (Art. 145); introducing post-facto judicial review of legislation via incidental referral for better protection of constitutional rights and freedoms (Art. 153); and extending the right of referral to the Superior Council of the Judiciary to individuals to enhance public confidence in the judicial system (Art. 136).
Other proposed reforms also respond to peacebuilding and regional commitments. The creation of a second parliamentary chamber, called the Senate, will result in better territorial representation, including of decentralized local authorities, in the national legislative process, in accordance with one of the key commitments of the Agreement for Peace and Reconciliation resulting from the Algiers process. Further, the establishment of a Court of Auditors (Arts. 156 to 163) to create specialized jurisdiction for controlling state expenditures and revenues responds to the previously mentioned WAEMU Directive.
The draft constitution includes a number of contentious provisions. Among these is the retention of the requirement that presidential candidates must be Malian nationals by birth without another nationality, thus excluding dual citizens and Malian citizens who have acquired their nationality through naturalization. In the same vein, the requirement to renounce a second nationality when running for president poses a problem insofar as the candidate in such a situation has no guarantee of being elected, which would cause him or her a double loss (Art. 46).
The proposal of introducing a second chamber in Mali has been raised before, with the arguments against the notion citing the cost of the endeavour in a vulnerable economy and the unequal bicameralism that gives the National Assembly the last word in the case of a disagreement between the chambers during the law-making process (Art. 123).
The classification of national languages as official languages and French as a working language is confusing (Art. 31), since the use of official languages is to be regulated by organic law. Moreover, while Decree n° 159 PG-RM of 19 July 1982 officially recognizes 13 national languages in Mali, but not spoken by all Malians, French remains the language of unity. The recognition of 13 national languages as official languages would further weaken the social cohesion of citizens.
Mali's democratic stability requires the depoliticization of the army and the demilitarization of the public administration . . .
Another controversial provision concerns the role of the military in the draft constitution. In addition to its military posts, the draft constitution also envisages a role for the army in participating in the ‘economic, social, and cultural development and environmental protection of the country,’ potentially in contradiction of the principle of separation of civil and military power. From now on, the military will be responsible for ensuring ‘the enforcement of the law’ and will be able to leave the barracks if the law is violated, in this case by the civil power (Art. 89). In addition, the state will be obliged to ensure that the armed and security forces have the human and material resources needed to carry out their mission (Art. 93). In this perspective, the armed and security forces, dissatisfied with the means made available to them by the civil power, may be tempted to take responsibility. Mali's democratic stability requires the depoliticization of the army and the demilitarization of the public administration, but several experts fear a risk of constitutionalization of coups d'état in Mali.
Questions about the legitimacy of the constituent process
A large number of the country's political and social class believes that the transition should not have been so ambitious in focusing on major reforms, but that the short transitional period should have been dedicated to organizing elections for a swift return to constitutional order. Many argue that an illegitimate president who came to power through a coup d'état should not undertake major reforms as significant as writing a new constitution.
The military transition in Mali has crystallized internal dissension among Malians over the transition’s trajectory. Numerous actors did not take part in the work of the Assises Nationales de la Refondation, a main conclusion of which was to change the constitution. As a result, several political parties and groups, as well as civil society organizations, have criticized the new draft constitution. Others believe that a revision of the 1992 Constitution would be more relevant, advocating for maintaining the Constitution, but amending it.
The Free Union of the Judiciary (SYLIMA) expressed disappointment that the commission in charge of finalizing the draft constitution only considered one point from its recommendations. SYLIMA reiterated its wish to remove from the draft constitution provisions related to the extension of referral rights for citizens to the Superior Council of the Judiciary (Art. 136), the inclusion of non-judicial personnel in its composition (Art. 137), and the time limit for drafting judicial decisions with sanction for non-compliance (Art. 131). It also called for a true separation of powers.
For its part, the Malian League of Imams and Scholars for Islamic Solidarity (LIMAMA) disapproved of the principle of secularism in the draft of the new constitution, arguing that it is contrary to their religion, and proposed replacing the principle with the expression ‘multi-faith state.’ However, there is nothing in the draft that suggests secularism is opposed to the Muslim religion. On the contrary, the proposal explicitly states that secularism is not opposed to religion and free exercise of worship, and that its objective is to promote and reinforce ‘living together’ (Art. 32). Further, almost all of the signatory groups of the Algiers Agreement also oppose the draft because they believe it does not reflect commitments to the decentralization of power.
The lack of consensus among the nation's active forces regarding the management of the transition is not conducive to such a draft of a new constitution. However, barring any last-minute changes, the draft will be submitted to referendum. In this regard, the ongoing insecurity in the country may prevent some voters from participating in the referendum, which could further exacerbate criticism of the legitimacy of the constituent process.
Professor Fousseyni Doumbia is a lecturer in Public Law and Constitutional Law at the University of Legal and Political Sciences of Bamako. In addition to his activities as a teacher-researcher, Professor Doumbia also works as an international expert on governance and constitutional reform issues in Central and West Africa.
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Suggested citation: Fousseyni Doumbia, ‘Towards the Fourth Republic of Mali: Analysis of the Draft Constitution’, ConstitutionNet, International IDEA, 18 April 2023, https://constitutionnet.org/news/towards-fourth-republic-mali-analysis-draft-constitution