A Constitutional Coup or Institutional Revolution in Togo?

[Editor's note: the constitution was approved in parliament on 19 April 2024].

In Togo, the National Assembly, which has already completed its term, recently ushered in a new constitution that purportedly shifts the country to a parliamentary system of government. The proposed reform, however, more closely mirrors a presidential system with an indirectly elected President of the Council of Ministers, potentially setting the stage for the current president to remain in power indefinitely. Amid significant opposition, particularly against bypassing the constitutional requirement for a referendum on changes to presidential provisions, the president has returned the draft to parliament for reconsideration and public consultation. Despite this, comments from the government imply this is simply a matter of explaining to the population the merits of the project – writes Dr Kangnikoé Bado

On the morning of 26 March 2024, the Togolese woke up to the news of a new constitution, the effect of which would purportedly alter the system of government and in the process allow the incumbent president to serve an unlimited number of terms under a new, but equally powerful, title.

The process of drafting the constitution and its adoption was shrouded in secrecy and has generated serious opposition that could potentially breed instability, at least in the short term. The draft constitution has not been formally promulgated, after the president returned the draft to the National Assembly for a second re-reading, following calls from the Conference of Togolese Catholic Bishops. While the delayed legislative elections have been announced for 29 April 2024, there is expectation that the draft constitution will be promulgated by the outgoing Assembly.  

Contested process

Togo’s constitutional revision procedure is outlined in Article 144 of the 1992 Constitution: the process can be initiated by the president or one-fifth of the members of the unicameral National Assembly, and approval of constitutional amendments requires either a four-fifths majority approval in the Assembly, or two-thirds majority vote with endorsement in a referendum.

It should be noted that at the time of the current revision of the Constitution, the National Assembly was almost entirely composed of members of the ruling party, namely Union pour la République (UNIR). This was because opposition parties boycotted the December 2018 elections, questioning the credibility of the electoral process and the composition of the Independent National Electoral Commission (CENI). Unsurprisingly, therefore, the bill to revise the Constitution did not face any obstacles and was adopted by the National Assembly by a majority of more than four-fifths of its members without the need for a referendum.

Civil society organisations and the Togolese opposition consider that the current parliament, whose term of office has expired, lacks the legitimacy to adopt such far-reaching constitutional changes . . . 

Opposition parties criticised the adoption of a new constitution by the parliament, not least because the formal term of the Assembly ended in December 2023, and its sessions have continued only because of a constitutional provision providing that the extant Assembly continues ‘in office’ until a new one is constituted (Article 52). While the Constitution does not appear to impose specific limitations on the powers of such a caretaker legislature, civil society organisations and the Togolese opposition consider that members of the parliament whose term of office has expired lack the legitimacy to adopt such far-reaching constitutional changes for the future of the country, and so close to elections. The exceptional possibility of remaining in office should only concern the management of ongoing business.

It must be noted that changing the Constitution just a few days before the legislative elections raises questions about compatibility with the ECOWAS Protocol on Democracy and Good Governance, Article 2(1) of which expressly states that ‘No substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of Political actors’. In this regard, the Togolese opposition has asked ECOWAS representatives in Togo to examine the constitutional change currently underway in Togo.

Ostensibly fundamental change

Under the proposed reforms, the President of the Republic would be elected by parliament in a joint session of the two legislative chambers. The president's term of office would be six years. The powers of the head of state are practically relinquished to the proposed President of the Council of Ministers, also with a six-year term, who would represent the Togolese Republic abroad and effectively direct the day-to-day management of the country.

This formally shifts the semi-presidential system of government to a new political system. Because the new President of the Council will be selected by the Assembly, the move has been described as establishing a ‘parliamentary’ system of government. Nevertheless, a close look at the draft constitution (Article 54) indicates that the Assembly would only be able to remove the President of the Council with a three-quarters majority in a vote of no confidence. This high threshold for removal is unusual in parliamentary systems, where an absolute majority is sufficient to remove the head of the executive. Accordingly, under the new hybrid system, the President of the Council will have virtually the same protection as directly elected presidents, who can only be removed through impeachment procedures. The shift may, therefore, more appropriately be characterised as ‘assembly independent’, which is effectively a presidential system with an indirectly elected president.

The draft is silent on the number of terms that the President of the Council may potentially serve, leading to speculation that the draft constitution is primarily designed to bypass the term limits in the current constitution . . .

Although effective power resides with the President of the Council, the draft constitution limits the term of the ceremonial president to a single term, and it is silent on the number of terms that the President of the Council may potentially serve. This omission has generated speculation that the draft constitution is primarily designed to bypass the term limits in the current constitution, which were established following popular protests in 2017 and mediation from ECOWAS. The absence of term limits, while effectively maintaining the presidential system, may undermine the spirit of the ECOWAS-brokered deal.

The draft constitution enshrines a number of other changes, including a symbolic transition from a Fourth to a Fifth Republic, enshrining rights and duties in a solemn declaration of fundamental rights and duties and creating a High Authority for Transparency, the Fight against Corruption and Integrity in Public Life. It also overhauls the ordinary justice system and the independent constitutional authorities, renames the Supreme Court as the Court of Cassation (which retains the attributes of the Supreme Court), and installs an Ombudsperson to replace the Mediator of the Republic.

Why the reform?

The ruling party and its supporters have put forward several arguments in defence of the proposed change. They argue that the new system would revitalise democracy, de-dramatize the presidential office and reduce the cost of presidential elections. Moreover, in Togo's political history, presidential elections have almost always generated instability. They believe that the indirect selection of the head of state and government under the new system may help to pacify political life in Togo. In addition, they argue that the introduction of a parliamentary system will enable citizens to exercise effective control over their leaders and their policies, while participating directly and inclusively in political decision-making. This is because in this system, members of parliament, as representatives of the people, would theoretically have the power to dismiss an ineffective government and force the formation of a new one, unlike in the current system.

Finally, they point out that this is not the first time that Togo has had to experiment with a parliamentary system. Historically, in the years before and just after Togo's independence on 27 April 1960, the country was governed under a parliamentary system, though in this case it was a truer parliamentary system, which provided for an absolute majority vote to dismiss the prime minister (Article 17(1), Constitutional Law of 23 April 1960). The parliamentary system was abolished in 1963.

Opposition to the reform

For the critics of the draft, changing the Constitution poses serious problems for Togolese democracy. First, the process of changing the Constitution initiated by the National Assembly is a flagrant violation of the provisions of the current text. In addition, opponents of constitutional change point to the gross violation of Article 59 of the Constitution, which states that, ‘The President of the Republic is elected by universal, free, direct, equal and secret suffrage for a term of five (05) years, renewable once. This provision may only be amended by referendum’. The constitutional change effectively abolishes this provision, notably the term limits, without a referendum.

An application to the Constitutional Court without representation in parliament would be declared inadmissible, perhaps underscoring the potential downsides to boycotting elections as an opposition strategy.

Accordingly, the opposition political class and civil society believe that the main aim of the change to the constitution is to establish a monarchical regime and a life presidency for the benefit of the current president, who has been in power since 2005 when he replaced his late father who was in power from 1967-2005. Some are talking purely and simply of a constitutional coup d’état in Togo. The procedure for referring cases to the Constitutional Court is very restrictive in Togo. Article 104 of the Constitution specifies that before laws are promulgated, they can only be referred to the Court for constitutional review by the President of the Republic, the Prime Minister, the President of the National Assembly or one-fifth of the members of the National Assembly. Given the current lack of opposition representation in the parliament, an application to the Constitutional Court would be declared inadmissible, perhaps underscoring the potential downsides to boycotting elections as an opposition strategy.

To prevent the country from flaring up into a new era of political violence, Togo's Catholic bishops on 26 March urged the president not to promulgate the new constitution and to engage in a broad political dialogue. The president asked the National Assembly for a second reading of the draft constitution, a process allowed under Article 67 of the Constitution. Subsequently, members of the National Assembly conducted brief consultations with their constituencies. Nevertheless, the interventions of certain members of the government, notably Minister Bawara, give the impression that the change to the Constitution has already been agreed within the ruling party. It would simply be a matter of explaining to the population the merits of the project.

Concluding remarks

While the government has presented the proposed reform as simply a change in the political system, it is ultimately seen as a challenge to the peaceful and regular alternation of powers that presidential term limits established in the current constitution. This goes to the heart of the possibility of free, fair and credible elections, as an incumbent who changes the constitutional rules to run for unlimited terms is unlikely to enable the organisation of credible elections. Were the rules of the electoral game to be respected, the proposed political system in itself is not necessarily a regressive measure. If the proposed reform were to make the term limit provision in the current constitution applicable to the proposed President of the Council of Ministers (including counting of past presidential terms), and if additional reforms are enacted to support free, fair and credible elections, the stakes in the reform will be lower, in the process reducing tensions and political instability.

Dr Kangnikoé Bado is a former researcher at the Max Planck Foundation for International Peace and the Rule of Law, Heidelberg, Germany.

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Suggested citation: Kangnikoé Bado, ‘A Constitutional Coup or Institutional Revolution in Togo?’, ConstitutionNet, International IDEA, 15 April 2024, https://constitutionnet.org/news/voices/constitutional-coup-institutional-revolution-togo

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