Senegal: Court Clears Wade for Third Term

Yesterday, Senegal's Constitutional Council ruled that President Abdoulaye Wade can run for a third term, and that popular musician Youssou N'Dour could not run. Riots erupted, leaving a policeman dead. As we described earlier, Wade is relying on a somewhat tortured, though not insane, reading of the constitutional scheme as amended since he acscended to power in 2000. Wade follows the pattern of the long-time opposition leader who calls for democracy, then finds giving up power undesirable.

Wade was originally elected to a seven year term, renewable once, under the prior constitution in 2000. After taking office a new constitutions was adopted, reducing the presidential term to five years, after he completed his first. In 2007 he was re-elected and secured an extension of the term to seven years for future elections. He then argued that his second term was in fact the first one served under the new constitution. There is a genuine legal issue as to whether terms in prior constitutions ought to be counted in any term limits scheme, but the danger of self-dealing suggest that the answer ought to be yes.


When I was in Dakar last month, I found mixed views about Wade, but there were visible signs of disatisfaction with his regime, as evidenced in the photos above!

--TG

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A Constitutional State of Emergency in Nigeria

Last Saturday a terrorist attack by the Islamist insurrectionist group Boko Haram killed well over 100 people in the Nigerian city of Kano. This tragic event may have strengthened the domestic position of beleaguered Nigerian president Goodluck Jonathan at a time when sectarian violence, and increasingly visible popular protests against rising gasoline prices, seem to be pushing the West African nation to the brink of chaos.

On its face, the Boko Haram attack would seem to validate a series of controversial moves made by Jonathan over the last few weeks. On January 1st, the president declared a state of emergency over a small region of the Nigerian North, and one week later expanded it to encompass 15 Nigerian States.

When operating under a state of emergency, a Nigerian president is empowered to make laws and to execute them immediately even where the state competencies affected would normally fall under the purview of Nigeria’s highly independent state and regional governments. The power also allows the executive to overstep, with some exceptions, the limitations on power arising from constitutional guarantee of fundamental rights.

In a region with a troubling history of autocrats unnecessarily invoking emergency provisions so as to consolidate power and rule by decree, such declarations can understandably be met with a high degree of suspicion. Section 305 of the 1999 Nigerian Constitution provides for the imposition of a state of emergency in the country, or a part of it, through the official gazette under the following circumstances:

(3) The President shall have power to issue a Proclamation of a state of emergency only when -

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation;

Prior to the Kano attack, President Jonathan’s stated motivation for the state of emergency (ie. “crushing” Boko Haram by seizing control of uncoordinated regional security apparatus and border controls while creating a special counter-terrorism unit from scratch) had been impugned by both international observers and domestic critics for being disingenuous. The Nigerian Constitution does not allow for emergency executive power to suppress peaceful protests, but does do so in situations involving armed rebellion or an existential threat to the state. As such, the move was initially criticized as a red herring, a cynical power grab aimed at empowering Jonathan’s administration to subvert state powers and repress the Nigerian citizenry with impunity by deliberately exaggerating the threat posed by Boko Haram.

In light of events over the weekend however, criticism has died down considerably. Ironically, by reinforcing the perception that the Islamists do represent an immediate and existential threat to Nigeria’s existence, the attack may have thrown President Jonathan a much-needed lifeline. That being said, Boko Haram has previously stated that they recognize neither the federal constitution nor the authority of President Jonathan.

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Scholarly Announcements for Comparativists

Below, I'm pleased to share three announcements from two groups with which I'm involved. The first is a new Call for Papers from the AALS Section on Law and South Asian Studies. It is open to all comparativists irrespective of seniority.

The next two are targeted to younger comparativists, defined as scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2012. These two announcements are both issued by Younger Comparativists Committee in the American Society of Comparative Law and involve the following: (1) a Call for Papers; and (2) an invitation to serve on one of the Younger Comparativists Committee's three advisory groups.

More details follow.

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"Guiding Cases" in China

The Supreme People's Court of the People's Republic of China has begun the practice of announcing "guiding cases." These are cases that, as explained here, "provide guidance to people's courts in hearing similar cases and handing down judgments, and reference shall be made by judges in hearing similar cases and cited as the basis for reasoning in judgments."

This appears to be quite a significant development. Professor Wu Shuchen of Shandong University describes it this way: "The effect of the Guiding Cases system is as follows: first, it significantly limits the discretionary power of judges and effectively avoids the defect of different verdicts for similar cases; second, it significantly reduces the uncertainty and unpredictability of the law."

Stanford Law School has recently created the China Guiding Cases Project to catalogue the guiding cases, to provide commentary and legal analysis on those cases, and generally to follow these and other fascinating developments in the Chinese legal system.

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South Sudan constitutional process beginning

The world’s newest country, South Sudan, has been wracked by serious inter-ethnic conflict in recent weeks, in which cattle raids have escalated to large-scale pogroms between Nuer and Murle ethnic groups. The situation seems to be deteriorating rapidly, and presents serious challenges to the Government as well as international peacekeepers, who have been unable to stop the violence.

While it will have little immediate impact, one key step in building the state is taking place in Juba, where the process of making the Permanent Constitution is just beginning. Last week, the President called a meeting to consult on appointments to a new Constitutional Review Commission, which will have one year to review the current Transitional Constitution and to propose changes. While the original proposal seems to have been for eleven members, opposition groups pushed for the expansion of the Commission to 45 total members. This is sure to produce greater representation, but could also generate an unwieldy body unable to engage in meaningful deliberation. Much political skill will be required to keep the Commission on track to accomplish its heavy workload.

The process is governed by Sections 202 and 203 of the Transitional Constitution, which does not provide the number of members on the Commission. Besides constitutional reform, the Constitutional Review Commission is to conduct a civic education program, and will have to consult widely to solicit input; for this task, more members might be helpful.

After the draft is prepared by the Constitutional Review Commission, a National Constitutional Conference will be established to deliberate on the draft and gather public input. The whole process must be completed by October 2014 at very latest.

--TG

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Progress in Fiji?

The recent developments in Myanmar remind us that even cosntitutions adopted with low expectations can mark significant political change. In this light, it is worth watching forthcoming developments in Fiji, where military strongman Voreqe Bainimarama yesterday lifted the three-year-old state of emergency, and announced the need to move toward a new constitution. The new draft, he says, will be based on the principle of one-man, one-vote, and will not use ethnicity as a formal basis for politics. The state of emergency was declared after the Court of Appeals found that Bainimarama’s 2006 coup was illegal.

Bainimarama is sticking with a timetable he announced back in 2009, when he said that the constitution-making process would begin in September 2012. Bainimarama appears commited not to reinstate the abrogated 1997 constitution. That document, which led to the election of Fiji’s first-ever ethnic Indian government, was blamed for perversely reinforcing the ethnic bases of politics, despite its intentions otherwise. It remains to be seen whether the new drafting process will use the 1997 text as an informal basis. This approach might save some drafting energy while allowing for the mitigation of the electoral institutions that exacerbated ethnic conflict.

Back in 2009, Bainimarama also said that the process would involve wide consultation among stakeholders. It remains to be seen whether he will deliver on this promise.

--TG

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Hungary's New Constitution

The new constitution of Hungary—called the Fundamental Law of Hungary—became effective a couple of days ago on January 1, 2012. The day after its coming into force, thousands of Hungarians gathered in Budapest to protest the nation's new constitution. Analyses of the day's events are available here, here and here. Princeton's Kim Lane Scheppele is quoted offering some noteworthy observations near the end this article here.

The Hungarian Parliament adopted the new constitution on April 25, 2011. The full text is available here.

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