Blog of the International Journal of Constitutional Law

New Constitution Attempts, but Is Unlikely, to End Mugabe Reign

A state-owned Zimbabwean newspaper is reporting that the new draft constitution, leaked last week, could prevent President Robert Mugabe from running for office. The salient clause, drafted by members of his own ZANU-PF party, states that “a person is disqualified for election as President if he or she has already held office for one or more periods, whether continuous or not, amounting to 10 years.” Mugabe has ruled Zimbabwe since its independence in 1980, despite presiding over the spectacular decline of one of the continent’s most promising economies. At a time when several entrenched dictatorships have been quickly ousted, this is an unexpected development in a country whose political processes have been perennially complex and opaque.

Executive term limits has long been a contentious issue, as the ZANU-PF is the sole political party in Zimbabwe without term limits for its representatives. Failed attempts to rewrite the constitution in 1999 and 2007 still left the ruling party intact, making this rare display of discord within ZANU-PF a possible consolation to the steady clamor for a truly democratic constitution. South African President Jacob Zuma has also continued his public condemnation of Mugabe, asserting that a new democratic constitution must precede any elections. He is expected to facilitate power-sharing talks.

The aging Mugabe turns 88 today, and has been fending off a 2008 WikiLeaks report on his treatment for prostate cancer. He has repeated his pledge to hold elections this year “with or without a new constitution” against the power-sharing agreement to run a poll after a new constitution has been written and approved. Moreover, Zimbabwe’s constitutional committee will almost certainly remove the clause as it finishes review of the draft. Thus celebrations for the dictator’s birthday continues apace, with a cheerful Mugabe saying he has no plans to retire soon.

UPDATE: As expected, the constitutional committee clarified the term limit clause by adding ‘under this constitution,’ thereby allowing Mugabe to run in the next elections. Genuine democratic reform through the constitutional process remains a bleak prospect.

–Cindy Tan

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Published on February 23, 2012
Author:          Filed under: hp, Zimbabwe

Nathan Brown on Egypt

Nathan Brown has a terrific op-ed in the Guardian here. He makes the excellent point that there will be far too much attention, both inside and outside Egypt, to the constitutional provisions governing Islam. Such provisions are always very vague, and whether the formula is that Islam is “the leading force” or “the basis of law” or “the source of law” is often of much less relevance to actual constitutional operation than is the question of who gets to interpret the clauses. Brown thinks instead that the key issues are likely to be the structure of the political system and the independence of the various monitors and guardians, including the media and the courts.

Brown is surely right. The role of Islam in constitutions seems to me to be of only symbolic importance. But symbols have enormous political consequences for whether or not a constitution is ultimately passed and accepted. In this regard, it is a good thing that the formula adopted are usually written at such a high level of abstraction as to allow great flexibility. While from a liberal (or Coptic) perspective it would be far better if Egypt’s ultimate constitution were simply silent on the issue of Islam, that seems unlikely. In a world of second-best, abstraction may be as much as form of minority protection as more structural institutional protections.


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Published on February 15, 2012
Author:          Filed under: Egypt, hp, Nathan Brown

Notes from Behind the Bench

Willy Forbath and John Ferejohn (visiting from NYU) are running a unique colloquium at Texas this spring.  They’ve invited six of the leading justices from constitutional courts around the world to visit and share insights from their time on the bench.  

Yesterday, Manuel Jose Cepeda of Colombia’s constitutional court — widely viewed as one of the more autonomous and innovative courts in Latin America — was in Austin to lead off the series.  Judge Cepeda’s session turned out to offer an enormously engaging peek into the court’s approach to constitutional interpretation in the face of a series of important historical accidents and waxing and waning political firestorms.  
There are too many thoughtful nuggets from Cepeda’s remarks that I won’t have time to represent them here, though I might spend a few blog posts digesting some of them.  But an offhand, almost throwaway, remark by the judge about the Colombian citizenry’s view of the 1991 constitution stuck with me.  Judge Cepeda speculated that a widespread view among the public of the constitution is that the document is far too easily amended.  By contrast, recall that the 1886 constitution that preceded the current one is thought to have turned voters and elites off due to its inflexibility with respect to amendment.  Taken together, it is interesting to note the strong connection between the degree of the public’s attachment to the document and the document’s amendment rules.  As an aside, it is remarkable how little affection the citizenry and elites displayed for the century-old 1886 document — about 90% of the population voted to replace the 1886 constitution.  If the U.S. constitution is venerated excessively here (see Sandy Levinson’s Constitutional Faith — a must read if there ever was one), perhaps the poor 1886 document suffered the opposite problem.  
I’ll write later on the very surprising role of style — or at least the organizational structure of the text — on constitutional adjudication in Colombia.  (To foreshadow: copy editors have more power than we think!).
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Published on February 14, 2012
Author:          Filed under: amendment, Colombia, constitutional courts, Zachary Elkins

Syria Presses on with Constitutional Referendum

Russia’s support for beleaguered Syrian President Bashar al-Assad remains fiercely intact despite international condemnation of its veto at the UN Security Council. Following a meeting between al-Assad and Russian Foreign Minister Sergei Lavrov earlier this week, Syria insists on dialogue and national solutions, the only remaining one being the original constitutional referendum plan issued by al-Assad last October as part of a larger package of reforms. According to state-run media outlet SANA, a draft was submitted to the President a few days ago. Earlier today, Russian Deputy Foreign Minister Sergei Rybakov applauded the new constitutional draft as a major step towards elections. Lavrov also announced that Syria will set a date for its constitutional referendum soon.

The most controversial article of the current 1973 constitution is Article 8, which establishes the socialist Baathist party as “the leading party in the society and the state.” Long unpopular with Syrians, the article entrenches the current regime and could fuel civil war if retained in the new draft. Al-Assad promised this section of the constitution would receive particular attention by the drafting committee. However, with its membership drawn mostly from the Baathist party and the eleven other parties comprising the pro-regime National Progressive Front, genuine reform is inconceivable. This constitutional process remains in the control of the current government, with the Arab League’s plan for a constitutional assembly to form five months after new elections roundly defeated at the UN. Despite President Obama’s latest condemnation of the constitutional promise, the lack of an actionable intervention plan and apparent international will to check massive violence in Syria allows this constitutional chimera to live on.

–Cindy Tan

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Published on February 10, 2012
Author:          Filed under: authoritarianism, Cindy Tan, hp, Syria

New York Times: “We the People” Loses Appeal to People

The online version of Adam Liptak’s piece in the New York Times on the declining appeal of the U.S. Constitution as a model to foreign countries is here.

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Published on February 6, 2012
Author:          Filed under: Adam Liptak, David Law, hp, U.S. Constitution

Justice Ginsburg to Egypt: Don’t copy the U.S. Constitution

Let’s say you’re a newly democratizing country – say, Egypt – in the market for a new constitution. What constitutions, if any, should you consider as models in drafting your own? According to Justice Ginsburg, the answer is, maybe Canada or South Africa, or constitutions written after World War II more generally. But … not the U.S. Constitution itself. Video clip of her comments (televised in Egypt) here; partial transcript here.

Adam Liptak of the New York Times has a column scheduled for publication on Tuesday in which he will be taking on the topic of the (declining) influence of the U.S. Constitution as a model for constitution-makers in other countries. The column will touch upon Justice Ginsburg’s comments, as well as a forthcoming article that Mila Versteeg and I wrote entitled “The Declining Influence of the United States Constitution” (SSRN link here; look for it in the NYU Law Review come June). (Full disclosure: No, the Comparative Constitutions Blog doesn’t have spies inside the New York Times; I received a call from Mr. Liptak earlier this week.)

The question of where constitutional drafters should and actually do look for inspiration has always been a topic of tremendous interest and importance to other countries, not to mention comparative constitutional law scholars. Quite possibly, Justice Ginsburg’s comments and some media coverage could (re)focus the attention of a wider audience on comparative constitutional law in a way we haven’t seen since the initial furor over Supreme Court citation of foreign law in hugely controversial cases such as Lawrence v. Texas. And to the extent that this new topic attracts the attention of non-comparative constitutional scholars, perhaps the focus might even shift away from the usual scholarly preoccupation with judicial interpretation, toward the actual writing of constitutions in other countries (or, failing that, how the U.S. Constitution itself could perhaps be revised). That would, in my view, be an extremely healthy thing.

POSTSCRIPT: Predictably, the legal blogosphere has taken note of Justice Ginsburg’s comments. Fellow Canadian Paul Horwitz at PrawfsBlawg; and, pleasantly enough, The Volokh Conspiracy coming to Justice Ginsburg’s defense and suggesting that her comments are perfectly fair, not inappropriate, etc.
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Constitutional jurisprudence in paradise (Seychelles)

[I am delighted to post this note on behalf of the Honorable Justice Anthony Francis T. Fernando of the Court of Appeal, Seychelles – the highest court in that small Indian Ocean country. It concerns an important election appeal ruling rendered by the Seychelles Court of Appeal in December 2011. Seychelles was a single-party country until the early 1990s, before moving to a democratic model over the last two decades. The case and full judgment (see link below) are a good illustration of a number of things, among them the reliance on constitutional law and courts for dealing with high politics (see also the recent events in Senegal and in Papua New Guinea), as well as reference to foreign case law in a seldom studied jurisdiction. It also shows how a thoughtful, well-reasoned decision may increase a court’s credibility even in a politically charged setting]. RH

Note on PDM VS Electoral Commission (2011):

The issue that came up for determination before the Seychelles Court of Appeal in the case of Popular Democratic Movement VS The Electoral Commission, an appeal from a judgment of the Constitutional Court of Seychelles; was whether it is the total votes cast including votes which had been rejected; OR the valid votes cast that has to be considered in relation to the determination of the number of ‘proportionately elected members’ a political party may nominate after a general election to the National Assembly. The votes polled by PDM at the 2011 General Elections held in the Seychelles, if determined on the basis of the total votes cast, worked out to 7.4% and if determined on the basis of valid votes, 10.9%.

The National Assembly of the Seychelles consists of 25 members directly elected from the 25 electorates and not more than 10 members elected on the basis of proportional representation. The Constitution provides that “A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregate 10% or more of the votes cast at the election may nominate a proportionately elected member for each 10% of the votes polled”.

In the Preamble to the Constitution, which is an integral part of the Constitution, the people of Seychelles, have, solemnly declared their unswaying commitment, to develop a democratic system.

The Constitution specifies that Seychelles is a sovereign democratic Republic. It is democratic because the Constitution ensures the creation and existence of the government at the will of the people through their participation in the formation of the government at regular intervals.

No doubt as a general proposition one’s right to vote undoubtedly includes his right not to vote or spoil his vote but to equate that right to his constitutional right “to take part in the conduct of public affairs” or to treat that as an exercise of one’s “individual rights and freedoms with due regard to the rights and freedoms of others and the common interest” and generally, to strive towards the fulfillment of the aspirations contained in the Preamble of the Constitution”, namely to “develop a democratic system”; is farfetched. The rights and duties of a citizen set out in the Constitution places an obligation on a citizen to cast a valid vote. The Elections Act enacted in accordance with the Constitution to regulate the right to vote specifies the procedure for voting. Thus the voter must comply with this procedure in exercising his right to vote.

Consequently in determining the membership of the National Assembly whether ‘directly elected’ or ‘proportionately elected’ it is only the wishes of those who decided to cast their votes correctly in favour of a candidate that should be considered.

Furthermore, it would be an anomaly if ‘directly elected’ members were to be determined on the basis of the valid votes cast and the ‘proportionately elected’ members were to be determined on the basis of the total votes cast.

Justice Anthony Francis T. Fernando
Court of Appeal, Seychelles

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Published on February 1, 2012
Author:          Filed under: Ran Hirschl, Seychelles


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Published on January 31, 2012
Author:          Filed under: Uncategorized

Ban Ki-Moon on gay rights in Africa

It’s no secret that the treatment of gays and respect for gay rights in Africa can be spotty at best. (See, e.g., previous coverage on this blog of a particularly chilling chain of events in Uganda here, here, and here. And let’s not forget Zimbabwe either.)

A welcome gesture, then, that UN Secretary-General Ban Ki-Moon used the occasion of an address to the African Union yesterday to urge its leaders to respect gay rights (coverage courtesy of the BBC). He criticized the treatment of gays as “second class citizens or even criminals” and suggested that the “ideas” behind the Universal Declaration of Human Rights require countries to reject such discrimination.

Also worth noting: the mention in the article of efforts by the US and UK to condition foreign aid upon decriminalization of homosexuality. Now there’s some fodder for the Republican primary just waiting to happen.

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Published on January 31, 2012
Author:          Filed under: Africa, African Union, David Law, gay rights, hp, UDHR, Uganda, Zimbabwe

More on China’s new “guiding cases” practice

For more analysis of this new Chinese practice noted in a previous posting, Ruiyi Li of the UK Constitutional Law Group.

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Published on January 28, 2012
Author:          Filed under: China, guiding cases