The “Constitutional Coup” – less violent, equally dangerous

By Terence Corrigan*.Nearly a decade ago, in 2017, Africa in Fact ran a piece entitled “Africa’s presidents and the term-limit controversy”. It described a strategy that incumbent leaders were using to cling to office beyond the limits imposed on them by their respective constitutions.As it typically emerged from a constitutional change designed to give a sitting head of something in excess of a specified two terms, it was given the shorthand moniker of “third termism”. “Constitutional amendments or wholesale constitutional changes to alter term limits have provided avenues to stay in office,” the article commented. “The rules are being changed, though not (technically) violated.” This was a phenomenon that suggested a misdirection from Africa’s democratic evolution. If the continent had made progress in moving away from the military coup which had been such a feature of African politics since the 1960s, analysts identified this as the “constitutional coup”. At the time, this issue was in focus as Rwanda’s long-serving President, Paul Kagame, was running for re-election, having already held the country’s presidency since 2000. In 2003, Rwanda adopted a new constitution which limited presidential incumbents to two seven-year terms. But in 2015, a constitutional amendment was adopted that changed the framework. Kagame would be permitted to contest for a third term, after which a new regime would revise individual presidential terms to five years, while limiting future incumbents to two terms. Kagame would be eligible to run for these as well. This he did. Presenting himself for re-election in 2024, he won well over 99% of the vote in a poll widely criticised for intimidation and fraud. He is expected to stand again in 2029, which could see him hold the office until 2034. Beyond that is anyone’s guess. Kagame will by then be 79, but as he has become deeply identified with both the ruling Rwandan Patriotic Front and the Rwandan state itself, it’s hardly unthinkable that another accommodation might be made to further prolong his time in office. Kagame was following a well-worn path. Africa had turned to multiparty democracy in the 1980s and 1990s, with a promise that the era of presidents-for-life, party aristocrats and political messiahs was over. But in the late 1990s, Namibian President Sam Nujoma introduced a bill to allow himself to remain in office beyond his allotted two terms, on the questionable technicality that since he had initially been elected by a Constituent Assembly and not by a popular vote, his first term should be excluded from the total. Subsequently, incumbents in countries as diverse and Zambia, Guinea, Burundi and Chad attempted with variable success to rewrite the rules to prolong their time in office. It’s worth bearing in mind that in 2017, Rwanda was viewed as a rare developmental success in Africa; Kagame was held up in many quarters as indispensable to this, his authoritarian impulses notwithstanding. The same cannot be said for many others attempting the same thing. One of these, today, is Zimbabwe’s Emmerson Mnangagwa. Taking power through a military coup in 2017 – precisely the sort of transition that Africa was supposed to have left behind – Mnangagwa proceeded to operate very much in the mould of the continent’s old-school autocrats. Not only did he have a questionable history in Zimbabwe’s feared internal security apparatus, but as president presided over the ongoing suppression of dissent, electoral manipulation and corrosive patronage. To this he and his government has added the strategies of a modernised autocracy, including an engineered extension of his term of office. A pending Constitutional Amendment aims to expand the powers of the Zimbabwean executive, removing direct elections for the Presidency, while extending his term from five to seven years. This would mean, in effect, that Mnangagwa – now 83 years old – would not step down in 2028, but could continue to 2030. From there, perhaps another extension could be made. Zimbabwe, after all, has extensive experience with superannuated presidents holding office. Tendai Biti, long-time Zimbabwean opposition politician and Finance Minister during the country’s ill-fated experiment with coalition governance, recently told a conference at the Gordon Institute of Business Science in Johannesburg that the issue was existential for Zimbabwe. Term limits, he said, were a response to a crisis that owed much to an inability of the state to renew itself through new leadership and new ideas, and where power was permanently bound to one individual. “We sought to deal with this with this idea of an imperial super-president with powers to appoint virtually every public office in the executive, in the judiciary, in the state.” These sentiments hold for much of the continent’s democratic journey. And hence the importance of the descriptor “constitutional coup”, and why it is more than a rhetorically balanced turn of phrase. Isabel Bosman-Burnett, researcher in African Governance and Diplomacy at the South African Institute of International Affairs, told Africa in Fact: “I think the term ‘constitutional coup’ is a useful one and describes something that seems to be on the rise. Yes, the extension of presidential terms poses a danger to African democracy (but also democracies elsewhere) because it allows a single party or individual to monopolise power, creates an unhealthy democratic environment where opposition voices are either discouraged or silenced (often forcefully), and it defeats the objective of allowing voters to hold leaders accountable and demand change peacefully through the ballot because it is not generally the case that leaders who extended presidential term limits step down. When presidential term limits are extended it should be a warning that a country is drifting further away from democracy and heading down a path towards authoritarianism. Unlimited presidential terms are incompatible with democracy and oppose key values like the rule of law and processes of checks and balances.” The invariable argument made in favour of extending an incumbent’s term is that he or she is a necessary driver of the country’s developmental prospects. As previously noted, this justification was prominent in Kagame’s case; it has also typically referenced the role of iconic figures elsewhere in the world, such as Singapore’s Lee Kwan Yew. Retaining a competent and popular leader is in this view an eminently democratic choice. And in any event, several leading democracies have imposed no limits on the incumbencies of their leaders. For Africa, though, it’s an issue that needs to be seen in relation to the continent’s unsteady democratic trajectory. While there is copious evidence that Africa’s people remain committed to democracy, the same cannot always be said of its elites. And democratic commitment has been strained by a perceived failure across the continent to achieve the sort of developmental gains that were hoped for. Persistent socio-economic deprivation and insecurity, as well as the assertion by authoritarian actors globally of the legitimacy of their models, has opened the door for arguments that democratic restraints are dispensable in the interests of development and cohesion. Yet sensibilities demand, for the most part, nominal adherence to democratic norms. Elections must be held, the form of democracy kept in place, but its substance – democratic unpredictability and the prospects of change – strictly constrained. This is what the political scientist Andreas Schedler has called the “menu of manipulation”. Scholars and democracy advocates correctly see the term-limit controversy as a democratic hazard. According to a 2021 analysis by Joseph Siegle and Candace Cook of the Africa Center for Strategic Studies, a think tank in the United States, long-term incumbency buttressed by term-limit manipulations is associated with numerous pathologies such as greater corruption and being more prone to conflict than peer countries whose leaders relinquish power timeously. For Ambassador Aderemi Ajibewa Professor of International Relations and former Director of Political Affairs at the Economic Community of West African States (ECOWAS), what begins with a “constitutional coup” can shift a country’s political prospects towards more violent and openly democratic outcomes: “These practices blur the lines between formal electoral democracy and authoritarian governance, eroding public trust and inadvertently creating conditions conducive to military interventions.” This is not to be underestimated, as the military coup itself has re-emerged as a feature of the continent’s politics, attracting some genuine enthusiasm – where elected governments can provide neither security nor prosperity, the hard edge of “can-do” authoritarianism can appear appealing. Ambassador Ajibewa points out that term extensions have an impact beyond individual countries. Formally, the African Union demands democratic adherence to democratic norms, a framework for which is laid out in the 2000 Declaration on the Framework for an OAU [Organisation of African Unity, the antecedent of the AU] Response to Unconstitutional Changes of Government and the 2007 African Charter on Democracy, Elections and Governance. These documents require regular elections as the primary means to change governments. They demand respect for countries’ constitutions. They condemn coups and the refusal of incumbents to leave office. Thus, the recent military takeovers – popular or not with their respective populations – are generally condemned. (In practice, responses are inconsistent; in the case of Zimbabwe in 2017, after some initial concerns were expressed, both the AU and the Regional Economic Community, the South African Development Community, acquiesced in the military’s actions.) Term limits and perpetual incumbencies, however, are what Ambassador Ajibewa calls a “normative grey area”. ECOWAS has experienced a number of cases of this – in Côte d’Ivoire, Guinea, and Togo, for example – and has attempted to establish regional instruments for dealing with it. He points to the ECOWAS Protocol on Democracy and Good Governance, which restricts amendments to Constitutions or electoral laws six months prior to an election. But this constitutes weak protection, as such changes can be brought in prior to this window. Elections are then held with these changes being a fait accompli. “This grey area complicates the AU and RECs’ responses,” Ambassador Ajibewa continues, “as these transitions technically adhere to constitutional procedures but go against democratic principles. The AU and RECs face difficulties in addressing these without clearer, enforceable frameworks for addressing such democratic backslides. Constitutional coups disrupt political stability and undermine democratic progress in Africa.” This is the crux of the issue. The visuals of camo-clad soldiers escorting the civilian cabinet to detention is clear and comprehensible. Those of a familiar figure in a tailored suit solemnly taking a third or fourth oath of office are much more ambiguous. Constitutional coups exist with a veneer of respectability and are articulated in a vocabulary of democracy. But in so doing, they skew the operation and incentives in democratic systems and reduce constitutional strictures from robust elements of democratic architecture that need to be respected and navigated, to obstacles to be overcome and reconstituted for the advantage of the incumbent. The constitutional coup denotes not only the abuse of political power by a particular executive, but the corrosion of constitutionalism itself. And precisely for this reason, the constitutional coup is arguably more damaging than the military coup. It is a strategy that risks trapping a country in a permanent democratic grey zone. This is a form of politics and governance that displays a democratic form, while denuding it of a significant part of democratic substance. With leaders keeping themselves in power by shifting the constitutional order to suit themselves, the political order would invariably ossify around them. The institutions necessary for a durable constitutional democratic order would struggle to mature. And, as Siegle and Cook argue, this opens the door to the “big man” style of governance that characterised Africa before its democratic transitions. How should the continent and its people respond? Part of the answer, of course, lies in the country-level activism that has over the past three decades confronted and sometimes defeated term-limit abrogations. But this must be paired with the acknowledgement that since 2017, the overall state of democracy on the continent has deteriorated. The stakes are, in a sense, higher. Similarly, continental and regional bodies need to insist on term-limit conventions and treat their undermining as an unacceptable breach of democratic norms. Ambassador Ajibewa told Africa in Fact that a response also needed to account for the genuine frustrations of people at governance failings and how this had made non-democratic options attractive. This would apply both to those seeing salvation in a (supposedly) resolute military regime and to those placing their faith in the perpetual incumbency of an individual. All of this also demands making the case for the importance of term limits and their place in democratic systems. Says Bosman-Burnett: “Term limits are not undemocratic. On the contrary, they are a democratic safeguard. Elected leaders get a limited time to deliver on the promises of democratic governance and when, in the assessment of the electorate, they are not performing or their time is up, other candidates should be able to step in.” Dr Greg Mills, veteran South African international affairs scholar and convenor of the Platform for African Democrats, adds that not only are extended incumbencies harmful to democracies, but that they are invariably ineffective in dealing with the problems they claim to exist to tackle. “Despite the recurrent enthusiasm for authoritarianism as a model to ‘get things done’, the sort of ‘benign dictator’ who is not corrupt but efficient, who maintains a paternalistic but admirable benevolence, almost never exists,” says Mills. “The reality of such a model is, for the most part, quite different. Few of Africa’s dictators have proven benign or developmentally astute. Most end their rule in chaos or violence, usually fatally so for the leadership.” .Read more:.Andrew Kenny: Why Rwanda’s Kagame is the most dangerous man in the world.Indeed, in recent years, these critiques have been directed at the Rwandan experience, arguing that its impressive story has been built on aid dependency, repression and a highly selective narrative. Seen thus, Kagame’s refusal to vacate office was less a guarantee of success than a threat of regression. “History and human nature teach us that power is seductive,” observe Siegle and Cook. This is the danger inherent in “third termism”. At a moment when the continent faces a resurgent wave of military coups, the constitutional coup might seem esoteric and a secondary concern. For those invested in Africa’s democratic success, this would be a grave mistake. This is an extended version of an article published recently in Africa in Fact, the journal of Good Governance Africa. .*Terence Corrigan is the Project and Publications Manager at the Institute of Race Relations (IRR), where he is in overall charge of bespoke work, and long-form publications. A native of KwaZulu-Natal, he holds a BA (Hons) from the University of KwaZulu-Natal (Pietermaritzburg), and an MPhil from the University of Free State. He has held various positions at the IRR, South African Institute of International Affairs, SBP (formerly the Small Business Project) and the Gauteng Legislature – as well as having taught English in Taiwan. He is a regular commentator in the South African media and his interests include African governance, land and agrarian issues, political culture and political thought, corporate governance, economic growth and business policy. Corrigan is a connoisseur of films, an amateur historian and a lover of the German language..This article was first published by Daily Friend and is republished with permission..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox every morning on weekdays. Register here.Support South Africa's bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here.

The “Constitutional Coup” – less violent, equally dangerous

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