Threats to democracy in Africa: The rise of the constitutional coup

Since the early 1990s, there have been significant transformations in political systems in many African countries. These institutional changes have resulted in, for example, the demise of the racially based apartheid system in the Republic of South Africa and the introduction of a nonracial democracy. Many civilian and military dictatorships have fallen, paving the way for the establishment of rule-of-law-based governance systems characterized by constitutionalism and constitutional government, including reforms such as term limits. Nevertheless, many of these countries still struggle to deepen and institutionalize democracy and deal effectively and fully with government impunity, particularly that which is associated with the abuse of executive power and the violation of human rights.

Notably, while presidents in some countries, such as Kenya, Liberia, and Ghana, have abided by their countries’ two-term limit, others have used legislatures subservient to the president to change their constitutions to allow them to stay in power beyond those two terms, and, in some cases, indefinitely. In addition, these and other recent institutional changes have created conditions that make it very difficult for the opposition to participate competitively in elections.

Presidents that have changed their countries’ constitutions to eliminate the two-term limit include Presidents Gnassingbé (Togo), Museveni (Uganda), Déby (Chad), Biya (Cameroon), Kagame (Rwanda), the late Nkurunziza (Burundi), and el-Sisi (Egypt), just to name a few. Changing the constitution to eliminate term and/or age limits for presidents and allow the incumbent president to unconstitutionally extend his mandate has been referred to as a constitutional coup. It is important to note that relatively weak institutions and the absence of a democratic culture have facilitated the ability of incumbents to manipulate constitutions in the countries named in this paragraph. The hope is that, as the level of democratic development improves in these countries, such constitutional coups will become a rarity.

Free and frequent elections as a constraint to governmental tyranny are a necessary but not sufficient condition to guarantee and guard liberty.

Elections and African democracy

In Africa, elections perform at least three important democratizing functions: They (1) help the continent build and sustain effective democratic institutions; (2) provide the people with an effective legal tool to constrain and guard the government and minimize impunity; and (3) enhance the ability of the people to change their government and bring into public service new and more energetic and effective political leaders. Nevertheless, in order for elections to perform these three important functions and do so effectively, these elections must (i) be regular, not infrequent; and (ii) fair, free, competitive, inclusive, transparent, and credible.

At the same time, free and frequent elections as a constraint to governmental tyranny are a necessary but not sufficient condition to guarantee and guard liberty. In fact, while elections can help African countries consolidate, deepen, and entrench democracy, they can also pave the way for sustained majoritarian power to the detriment of the minority, as we have seen in countries like Cameroon.

It is important to note that, although elections are critical to the transition of a country from authoritarianism to constitutional democracy, they can also serve as a tool for the survival of authoritarian governments. For example, authoritarian regimes in countries, such as Cameroon, the Republic of the Congo, and Equatorial Guinea have used elections to legitimize their leaders and remain in power indefinitely.

In each country in the world, groups or factions whose interests may not be in line with those of the country as a whole certainly exist. Indeed, in Africa, one of the most important constraints to democratic consolidation is the violent struggle by various factions, many of which are actually ethnocultural groups, to capture, through elections or other means, the apparatus of government. To combat the abuse of the rights of minorities by majorities—that is, to minimize majoritarian tyranny—a country can create a governmental system in which the people are sovereign but government power and the exercise of it is limited by the constitution, which includes provisions to explicitly protect individual rights, to instill separation of powers through checks and balances, and to enshrine popular sovereignty through elections. However, for such a constitutional democracy to survive and flourish, it must have a “virtuous,” robust, and politically active public, as well as political elites dedicated to maintaining the country’s constitutional institutions.

The constitutional coup as a threat to the entrenchment of democracy

Importantly, term limits “can facilitate democratization in Africa” and “help push semi-authoritarian countries toward democracy by handicapping incumbents and increasing the chances of democratic turnover from one party to another.” For example, in interviews with high-level Kenyan officials, Dr. Alexander H. Noyes, a political scientist at the Rand Corporation, concluded that Mwai Kibaki’s “intention to step down after his second term was up in 2013 made him more inclined to agree to changes that constrained executive powers—including a new constitution in 2010—than if he was running for reelection.”

According to the African Center for Strategic Studies, since 2015, leaders of 13 African countries have “evaded or overseen the further weakening of term limit restrictions that had been in place.” For example, Alassane Ouattara, who has been president of Côte d’Ivoire since 2011 and who was seemingly barred from standing for the presidency this election cycle by the constitution’s two-term limit, argued in August 2020 that his first two mandates do not count because the limits were created by the constitution that was adopted in 2016, which effectively reset the clock. Although he initially declined to run again, the untimely death of his party’s chosen candidate created a vacuum in which he decided to stand again. The country votes this weekend.

These constitutional coups weaken the role of elections as a democratizing tool. Worse, in some countries (Cameroon or The Gambia, for instance), this circumvention of term limits has contributed significantly to the rise of violent and destructive mobilization by marginalized ethnocultural groups.

Elections as a democratizing tool in Africa: Enhanced participation as a tool for legitimization

Thus, in Africa as elsewhere, elections help citizens build effective democratic institutions and provide a tool for guarding the government through regularly and peacefully replacing recalcitrant and poorly performing political elites.

However, if African countries are to use elections to consolidate and entrench democracy, they must make certain that incumbent leaders are not able to (i) change national constitutions to eliminate term and age limits for presidents (as noted above) and other protections that guard the president against various forms of opportunism (as currently taking place in Zambia); (ii) mandate registration fees for candidates seeking to stand for political office, including the presidency, that are beyond the reach of many citizens; (iii) interfere with freedom of the press in ways that make it very difficult for the press to check on the government, provide citizens information about elections, and serve as a platform for the opposition to bring their message to voters; and (iv) use security forces to intimidate and strangle the opposition.

Efforts must be made to ensure that all of a country’s population groups, including especially those which historically have been marginalized (e.g., minority religious and ethnic groups), are provided the wherewithal to participate fully and effectively in elections. In other words, African countries need to make certain that elections are adjudged credible, not just by external observers but also by each country’s citizens.

One concrete way to enhance electoral participation is to provide electors information about all the issues that must be decided by the election. In most African countries, where most citizens are not fluent in their countries’ national language (e.g., French or English), the government should provide election-related information to citizens in a language that they can understand. For example, studies have determined that “inclusive language recognition is linked to higher turnout” for South Africa’s various subcultures during elections. By expressly recognizing the language of each of its various ethnocultural groups and providing them election information in their own language, the South African government significantly increased the participation of these groups in elections and, as a result, in governance generally.

The institutional environment—one in which liberties and political rights are guaranteed and protected—in which elections are held is also critical for a successful democracy. Citizens’ civil liberties and political rights must be guaranteed and protected. For example, citizens must be able to freely and peacefully protest or support government policies or decisions, including those related to elections. In addition, where there is adequate protection for free speech and a free press, as well as freedom for the opposition to campaign unimpeded, citizens can form political organizations to compete for positions in government. Such political competition can contribute significantly to improving the quality of elections and more effectively entrench constitutional democracy.