Blog of the International Journal of Constitutional Law

Of Coups and Term Limits: Thoughts on the Niger Referendum This Week

All eyes will be on Niger this Tuesday as President Mamadou Tandja goes ahead with a referendum to allow himself to rule for three more years after completing his constitutional mandate of two terms this December. Recall that when the Constitutional Court ruled his proposal unconstitutional earlier this summer, Tandja assumed emergency powers and disbanded parliament as well as the constitutional court. Given his tactics to date, it seems unlikely Tandja will allow himself to lose.

The international community has been fairly critical. France and the African Union have called on Tandja to abandon his plans. The EU has frozen aid, and ECOWAS is threatening sanctions. (With typical moral clarity, UN Secretary General Ban Ki-Moon has called for restraint and non-violence by all sides on election day.)

Here is a hypothetical. Suppose the military were to step in on Monday to prevent Tandja from going ahead with his referendum. Suppose further that the military then promptly installs a civilian as interim president and calls for new elections. What would be the reaction of the international community? Probably a great sense of relief. It is certainly hard to imagine calls for the return of Tandja to power. But how, precisely, is this hypo different from what happened in Honduras in late June?

President Zelaya, in my reading, did violate the terms of the Honduran constitution, which states fairly clearly that proposals for extension of a term result in immediate loss of office for the proposer. In contrast, nothing in Niger’s Constitution prevents the president from disbanding parliament, so long as elections are called within three months (and they will be held later in August). The president has authority to declare a state of exception and to call referenda. To be sure, the constitutional court is inviolable, and so Tandja has clearly violated the terms of the constitutional text, as well as its spirit, in disbanding the court. But I suspect this alone is not the source of the very different reactions of the international community to the two situations. Honduran President Zelaya is a Chavezista in a region with an extensive history of US-supported military coups. The Obama administration needs to demonstrate a new approach to the region. So the politics matter, and matter a good deal.

Perhaps I am wrong and the anti-coup principle would be evenly applied in Honduras and Niger. This would, in my view, encourage further extensions of the executive term. Without threat of punishment by the military, more executives will seek to hang on to power. Term limits become simply the opening bid in a game wherein the constitution can be manipulated by incumbents to allow themselves to retain office. De facto life-term presidents may be the lesser of two evils, but they may not be. We might alternatively recognize that there may be some circumstances in which a bloodless coup is the least bad alternative. The issue comes down to this: does the military have any legitimate role in constitutional enforcement?


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