Photo: Presidential ballots after counting, by MONUSCO via flickr.com, CC BY-SA 2.0

Sub-Sahara Africa Fights over Presidential Term Limits

Should he stay or should he go? With regards to the president, the answer to this question is subject of heated debates in Burundi, Congo, DR Congo and Rwanda. The hollowing out of term limits raises grave concerns about the political transformation of many Central and East African countries.

It’s election time in Central and East Africa! This would not be so interesting news if it was not for the fact that the presidents of most countries who saw elections recently or are seeing them soon are constitutionally forced to resign. However, constitutional term limits do not seem to prevent the presidents from clinging to power.

In March of this year Republic of Congo‘s president Denis Sassou Nguesso was re-elected after a constitutional referendum removed term limits in last October. In Burundi, the attempt to change the constitution failed. However, under enormous pressure by the ruling elite the constitutional court legalized President Pierre Nkurunziza’s candidature for elections, which he won in August 2015, commencing his third term in office. In Rwanda, a new constitution was voted for in a referendum in December 2015, effectively allowing President Paul Kagame to have a fresh start and run for another two terms starting with the elections in 2017. In the DR Congo, the government is currently doing anything possible to block the road to elections, due this fall, in order to allow President Joseph Kabila to continue his rule. The Tanzanian president Jakaya Kikwete appeared almost anachronistic when he stepped down in October 2015 without much fuss.

The current dynamics confirm an ongoing trend in Sub-Sahara Africa. Since the 1990s, the vast majority of African countries have constitutionally fixed presidential term limits. Ever since, the number of presidents who tried to re-write or undermine the constitution in order to stay in power beyond their last (usually second) term outnumbers those who simply adhered to term limits.

What is striking about all these cases is that incumbents do not resort to bluntly extraconstitutional means to prolong their rule. Rather, they stick to formal procedures such as a change of the constitution through parliament and/or a referendum or by calling on the constitutional court to interpret the law in their favor.

Africa’s hollow states

Since the 1990s, formal democracy has become the norm in Africa. The most obvious manifestation is that over the past two decades the way in which political leaders come into office or leave power is constraint by increasingly competitive elections. This is a clear sign that political leaders now largely accept the necessity to periodically acquire political legitimacy through the ballot box or may even be voted out of office and replaced by the opposition.

Even in those cases where repression is increasing, politics is progressively regulated through formal rules and procedures and even the heads of state feel the need to play by certain official rules.

However, where ruling parties and elites exert political control over institutions that are meant to guard against unconstrained executive power – parliaments, senates and courts – rules become easily manipulated and unable to provide effective constraints. In other words, where ruling elites make and modify the rules of democracy which they are supposed to respect, norms can become empty shells, or worse, means to legitimize rather than constrain authoritarian tendencies.

The latest findings of the Bertelsmann Stiftung’s Transformation Index, BTI 2016, with its system of multilayered indicators of democracy and governance, reflects the paradox of an increasing institutionalization of power flanked by a hollowing out of the normative essence of institutions of democracy and the rule of law.

If we look at those East and Central African countries where presidents are currently trying to circumvent term limits (Burundi, Congo, DR Congo, Rwanda), we see that the BTI’s Rule of Law and Stability of Democratic Institutions criteria stayed low but relatively stable since 2010. Burundi is the exception: there we observe a decrease of the rule of law by 0.8 points and a decrease in stability of democratic institutions by 2.0 points.

However, political participation suffered in all of these four countries since the BTI 2010: 1.5 points for Burundi and the DR Congo, 1.0 point for Rwanda and 0.5 points for the Republic of Congo. The overall democracy rating will most probably further decrease in the next BTI given that all countries experienced or are experiencing the hollowing out of term limits, flawed elections and a slide into long-term presidencies.

National and international actors should take a clear stance against third term bids

Whereas the undermining of term limits caused widespread violent protest in Burundi, the DR Congo and the Republic of Congo, Rwanda remains peaceful. However, the degree of open protest should not be misinterpreted as an indicator for acceptance or disagreement within the population. Rather, a multiplicity of factors such as the nature and organizational capacity of civil society, the room for political expression, assembly and association, as well as effectiveness of governments and security institutions to prevent and clamp down protests are all influencing popular uprising.

In Burundi, the discussion around term limits has too long revolved around the question whether a legal loophole would allow a third term for President Nkurunziza. When the constitutional court had the third term bid officially legalized – under massive pressure by the government –, the argument against a third term lost much of its legitimacy. It was only after it became obvious that civil society, the opposition as well as an angry youth would not stop to take to the streets, and after the military became involved and a refugee crisis unfolded that the international condemnation of Nkurunziza’s third term became more pronounced.

What the Burundian case clearly showed is that a hesitant and ambiguous response to third term bids is little helpful for those actors within a political system who advocate for term limits and respect of democratic norms beyond formal procedures.

The contradiction between formal rules and procedures and the latter’s normative objectives will continue to be of concern in African states in the coming years. The controversies around term limits show that high levels of compliance with formal rules have not strengthened democracy in the sense that democratic institutions effectively constrain political rule.

Already now, amendments of formal rules in order to increase a president’s power have become the norm, rather than the exception, and authoritarian tendencies within the framework of superficial democracy and the rule of law are on the rise. It remains to be seen whether the responses of the populace as well as the international community will become strong enough to counter these concerns about the political transformation of many African countries.

Claudia Simons is a researcher at the German Institute for International and Security Affairs (SWP) in Berlin. She is one of 246 country experts who worked on the latest edition of the Bertelsmann Stiftung’s Transformation Index, BTI 2016.

Photo: Presidential ballots after counting, by MONUSCO via flickr.com, CC BY-SA 2.0

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