—Adem Kassie Abebe, Senior Research Fellow, Max Planck Foundation for International Peace and the Rule of Law
Burkina Faso has witnessed two coup d’états in less than twelve months. The first was a popular overthrow of the former president, Blaise Compaore, who was forced out of power in a popular ‘democratic’ coup after demonstrators stormed parliament on 24 October 2014. The coup was a response to Compaore’s attempt to amend Article 37 of the Constitution to allow him to run for a third term, extending his overall rule to a fifth electoral term. He had already led the nation for over 27 years. Notably, in 2005, Compaore had managed to extend his term on a legal technicality after successfully maintaining that the two-term limit, which was adopted in 2000, did not apply to his official power prior to the adoption of the limit.
Following the popular overthrow of Compaore, the military took over political power under the leadership of Issac Zida, a high official in the Presidential Guard. After successful negotiations led by the Economic Community of West African States (ECOWAS) and the African Union, a transitional government led by civilian President, Michel Kafando, who is under the terms of the transitional arrangement not allowed to run for the presidency in the future, was established. Zida was selected to serve as Interim Prime Minister. An election was planned for 11 October 2015 as the culmination of the transitional process.
Before the completion of the transitional period, the Presidential Guard overthrew the interim government on 17 September 2015.
The second coup occurred when the leader of the Presidential Guard (officially Regiment of Presidential Security (RSP)), General Gilbert Diendere, a longtime ally and former chief of staff of Compaore, arrested the leaders of the transitional government and announced its overthrow on 17 September 2015. The RSP is an elite force separate from the regular military. The establishment of special armed units is not uncommon in countries where heads of governments do not sufficiently trust the regular army. The official reason for the overthrow of the transitional government is discontent with the amended electoral law, which blocked political participation of supporters of the former ruling party. The close connection of the RSP to the former ruling party lends some credibility to this claim. Nevertheless, a recommendation by a government commission that the RSP should be disbanded and integrated with the military is widely believed to be the immediate trigger for the coup d’etat. Following domestic popular protests, regional and international pressure, including suspension from the African Union, and particularly after the regular military forces sent an ultimatum to the RSP to disarm or face the consequences, the leader of the RSP officially announced that the transitional government would return. Diendere admitted that the coup was a big mistake, a waste of time and, most of all, precious lives. The civilian government was officially reinstated on Wednesday 23 September 2015.
Under the latest compromise agreement proposed by ECOWAS negotiators, elections would be conducted in November 2015, the amendments to the electoral law will be scrapped, therefore technically allowing members of the former ruling party to run for elections, and the members of the RSP would be granted full immunity. Civil society organizations in Burkina Faso are particularly disgruntled that the leadership of the RSP would not be prosecuted for orchestrating the coup and have threatened to continue to resist the usurpation of power. The reinstated transitional government has announced that the Presidential Guard will be disbanded. It is still not clear if the coup leaders will be held responsible and how. Prime Minister Zida indicated that ‘those who will have to answer to justice will do so’. The leader of the coup has said that he will accept ‘full responsibility’ and is currently under the custody of the security offices. The assets of the coup leaders have also been frozen. It is also not clear if politicians aligned with the former ruling party will actually be allowed to run for elections.
The exclusion of supporters of the former President from competing in the upcoming elections was a result of an amendment to the Electoral Law (Law No.005-2015/CNT), which was adopted to guide the transition. In particular, the amendment excluded from standing for election those who openly supported the proposed amendment of Article 37 of the Constitution (lustration law). In practice, this provision had the direct impact of excluding the members of the former ruling party, including those members of parliament who supported the vote to extend the term of the ousted president.
Members of the former political class contested the logic and purpose of the lustration law. To their credit, members of this excluded class initially resorted to legal means to challenge their ban. After their domestic efforts failed to reverse the law, seven political parties, including the former ruling Congress for Democracy and Progress (CDP), and thirteen individuals challenged the law at the ECOWAS Court of Justice, the judicial arm of the sub-regional organization. The Court has, among others, jurisdiction to receive complaints alleging violations of human rights guaranteed in ECOWAS instruments and the African Charter on Human and Peoples’ Rights.
The Court ruled on 13 July 2015 that the ban on candidacy was overly broad and incompatible with fundamental rights recognized in regional, African and international human rights instruments, in particular the ECOWAS Protocol on Democracy and Good Governance, and the African Charter on Human and Peoples’ Rights. While the right to political participation is not absolute and states may impose certain legitimate limitations, the interim government did not prove to the satisfaction of the Court that the exclusion was necessary for a stable democratic order. The Court ordered the government of Burkina Faso to amend relevant laws to enable excluded individuals to register their candidacy. Indeed, soon after the decision of the Court, the former ruling party announced its nominee for the presidential election planned for October 2015.
The decision of the ECOWAS Court of Justice is similar to the findings of the African Commission on Human and Peoples’ Rights that the banning of former ministers and members of parliament following their removal in a coup d’état from participating in political activities without justifiable reasons violated the right to political participation guaranteed in the African Charter. Nevertheless, the ECOWAS Court of Justice did not make reference to this decision of the Commission. While the decisions of the ECOWAS Court of Justice are directly relevant to member states of the ECOWAS, the decisions of the African Commission have relevance all over the African continent.
The decisions of the two entities are significant because of the popularity of lustration measures in post-conflict societies in Africa and beyond. Their extensive use in post-communist east European countries is particularly well documented. Nevertheless, a number of African governments, such as Rwanda and Nigeria, have also resorted to them in the past. Recently, they have been considered in Ukraine, Libya, and of course in Burkina Faso. Moreover, prominent international organizations sometimes tolerate the exclusion of certain officials of a former authoritarian regime from participation in the political process. For instance, the African Union did not specifically object to the lustration law in Burkina Faso, despite its active involvement in the transitional process, and although some neighboring countries criticized the law. It also appears that Intergovernmental Agency for Development (IGAD), the African Union and other international organizations involved in the South Sudan peace process would prefer the exclusion of a number of high officials.
The decision of the ECOWAS Court of Justice raises significant issues in terms of constitutional and legal measures taken to hold individuals, responsible for undermining the rule of law and constitutionalism, accountable in countries attempting to transition into democracy. Lustration laws may have a deterrence effect on future power holders who may be tempted to manipulate legal and political processes to extend their rule. Indeed, international law allows states to limit fundamental rights, including the right to stand for elections, including on grounds of conviction for serious violations of the law, particularly electoral laws. Nevertheless, these exclusions are by their nature specific and targeted, considering the level of individual guilt and the nature of the offence committed.
Given their impact on the right to political participation, not just the excluded candidates but also the right of voters to select them, the standard of justification for lustration laws must be high. In particular, lustration laws only affect individuals who have undoubtedly participated in activities that seriously undermine democracy and constitutionalism. Such laws must also be specific and targeted and guarantee procedural rights to challenge exclusions in duly established judicial organs. Blanket exclusions that broadly affect a certain group must be seen with suspicion. The question therefore is identifying the most appropriate measures that can be taken against those responsible for scuffling progress towards competitive democracy.
The purpose of the lustration law in Burkina Faso was to exclude individuals who supported the bid of the former president to amend the constitution to extend his term, thereby deterring future anti-constitutional behavior with fatal consequences. Having led the nation for more than 27 years, which were characterized by authoritarian tendencies, the efforts of the former president to extend his term were regrettable. More deplorably, the ensuing instability senselessly claimed a number of lives. Nevertheless, the amendment initiative was in principle not incompatible with the Constitution of Burkina Faso. Nor does international law proscribe attempts to amend constitutions following proper procedures. Indeed, the African Charter on Democracy, Elections and Governance only prohibits efforts aimed at extending terms through mechanisms that undermine democracy, including through constitutional amendments that constitute ‘an infringement on the principles of democratic change of government’ (article 23(5)). As long as an amendment is not enacted in violation of procedural and substantive requirements, it is difficult to qualify it as a violation of ‘principles of democratic change of government’. The fact that the Constitution of Burkina Faso did not prohibit the constitutional amendment of term limits, as is the case in some countries, subjects the possibility of abolishing or extending the term limits to the political process. As such, while the Interim Government argued that the lustration law was necessary to deter anti-constitutional behaviour, which was the source of much trouble, it did not show why the move to abolish the term limit was anti-constitutional.
The exclusion of individuals for supporting a process that was clearly not illegal in Burkina Faso and is not in any way prohibited in international and regional law constitutes a serious limitation of the right of political participation, in particular the right to stand for elections. The decision of the ECOWAS Court of Justice was therefore legitimate. The Court rightly concluded that the amendment to the electoral law casts a wide net and has the potential to undermine electoral competition. The ambiguous nature of the criteria could justify exclusions that are arbitrary and indiscriminate. Even individuals who did not commit serious infractions other than supporting the amendment of the Constitution could technically be excluded. In addition, although the Court did not specifically note it, the exclusion appeared to be permanent. Such an intrusive measure that impedes access to electoral functions to certain citizens in certain organizations requires strong justifications and direct attribution of guilt. Indeed, the latest ECOWAS peace plan to facilitate the return to the transitional government calls for the remedying of the effects of the amendment to the electoral law and allows all people to contend the upcoming elections.
Nevertheless, the Court did not analyze the legitimacy of excluding individuals from participation in future elections as a result of their contribution to unsuccessful attempts at changing constitutional term-limits. In essence, the Court did not engage the value and premises of lustration laws. As a result, it is not clear if the Court would have upheld a narrower legislation that excluded only high officials of the former ruling party. The decision of the Court does not therefore settle the acceptability of lustration laws in the presence of the right to political participation. The absence of such a general determination means that future cases involving lustration laws will be judged on a case-by-case basis. Indeed, as indicated above, it is not clear if the reinstated transitional government will totally scrap the amendment to the electoral law, or whether it would adopt a revised amendment to narrow down the effects of the ban on candidacy. Whether such a revised law would be incompatible with the decision of the Court or the right to political participation would have to be considered afresh.
Suggested Citation: Adem Kassie Abebe, Striking a Difficult Balance: Transitional Justice, Lustration Laws, and Human Rights, Int’l J. Const. L. Blog, Dec. 4, 2015, at: http://www.iconnectblog.com/2015/11/striking-a-difficult-balance-transitional-justice-lustration-laws-and-human-rights