The revision or modification of state constitutions is important especially if of utmost necessity to the betterment of the state, but there has been a precarious tampering of the fundamental provisions of constitutions in Africa. The case of Burkina Faso which has been plunged into political turmoil, to the recent case of Togo, are glaring examples. Interestingly, constitutional provisions related to the term of office of Heads of state have been modified so as to extend the term of office of these leaders in power. Is it that there are no legal and institutional measures in place to prevent these leaders and their regimes from manipulating fundamental provisions of state constitutions? Are there no political parameters that can be put in place so as to prevent these leaders from manipulating fundamental provisions of state constitutions?
In most African State Constitutions like the Constitutions of the Democratic Republic of Congo, Gabon and Equatorial Guinea, the provision on the mandate of Heads of State is easily modified. There are to provisions in these State Constitutions which prevent the manipulation of important provisions like the mandate of Head of States.
South Africa and Botswana have put in place Constitutional Courts which ensure that the separation of powers is upheld. For instance in South Africa, it is difficult for the executive arm of government to revise fundamental provisions of the 1994 Constitution. Other states like Togo and Burkina Faso put in place Constitutional Councils which have proven to be inefficient in preventing the manipulation of State Constitutions.
The balance of power amongst the executive, the legislature and the judiciary branches of government in African states, remain imbalance. The executive branch of government remains the most powerful. Judges of courts are still appointed by Heads of State and so pay allegiance to the head of this branch of government. With such a status quo, Heads of State will continue to manipulate fundamental provisions of State Constitutions so as to remain in power.
A weak opposition is also a major reason why leaders in Africa continue to manipulate state constitutions. According to an article dated the 18 of November 2014 by ‘Oeil d’Afrique’, political leaders of the Democratic Republic of Congo, Congo-Brazzaville, Burundi, Gabon, Senegal and Equatorial Guinea met in Paris and signed a declaration with aim to halt African Heads of State from modifying fundamental provisions of State Constitutions like terms of office in power. There is no gainsaying that holding such meetings and signing declarations is not a panacea to the status quo. Leaders of opposition parties in most African states have not been able to come to a consensus and select one candidate, during presidential elections.
African states cannot boast of a well-structured and institutional civil society which can be able to estop leaders from modifying fundamental provisions of State constitutions. According to a November 2014 report by France 24, civil society groups planned to join leaders of opposition parties in preventing the President of the Republic of Togo, Faure Gnassingbȇ, from manipulating fundamental provisions of the Constitution of Togo. This action was unsuccessful because civil society groups still do not have one voice as to why fundamental provisions like the term of office of the Head of State should not be modified.
The press in African State is still weak. Many African States like the Gambia cannot boast of an adequately independent press. Many journalists have been arrested and died in African prisons for opinions against the modification of fundamental provisions of State Constitutions.
There thus need for a change of the status quo. Constitutional drafters in collaboration with a vibrant civil society and leaders of political parties need to ensure that there is a provision in State Constitutions which prohibit the manipulation of the term of office of the Head of State.
One of the roles of Constitutional Courts is to check on the abuse of power by one arm of government. There is thus need for state institutions like Constitutional Courts and Councils to be able to challenge the modification of fundamental provisions of State Constitutions in Africa.
Civil society groups in Africa need to be well organized and have one voice when it concerns important issues like the manipulation of the term of office of Heads of State. In this same line, the Press in Africa needs to be vibrant and bold in speaking out against the modification of fundamental provisions of State Constitutions.
It does not suffice to only have a weak separation of powers as we have in most African states. There is need for institutional and political parameters to be able to stop the manipulation of State Constitutions.
This article is originally written in French and published at LibreAfrique.org. as ‘Comment stopper le tripatouillage des Constitutions en Afrique? on the 12 December 2014.