A partial supranational solution to the problem of regressive constitutional amendments

–Adem Kessie Abebe, University of Pretoria, South Africa

With the significant reduction in the number of coup d’états, one major constitutional crisis facing countries in Africa and beyond is the enactment of regressive constitutional amendments, amendments that are intended to reinforce the powers of incumbents or otherwise weaken vertical and horizontal accountability mechanisms. The problem of regressive constitutional amendments is a real one, particularly in Africa. Regressive amendments have taken several forms. Perhaps the most vivid manifestation of regressive amendments is found in amendments that abolish presidential term limits (example Cameroon and Algeria in 2008). Some constitutional amendments have reversed unfavourable court decisions and weakened other horizontal accountability mechanisms (example in Zimbabwe and Tanzania). Others changed or manipulated electoral systems and abolished second-round presidential elections to favour incumbents (example in the Democratic Republic of Congo). Clearly, in circumstances where a single party absolutely dominates political power, which is the case in the majority of African countries, cumbersome constitutional amendment procedures have not precluded self-serving and regressive amendments.

Scholars, judges and constitutional drafters are conscious of the limits of even the most rigid procedural safeguards on the powers of constitutional amendments. Pragmatism therefore calls for a need to craft mechanisms of control in addition to the procedural safeguards against potentially repressive amendments. With a view to preclude regressive amendments, some constitutions explicitly prohibit even proposals for amendment to certain constitutional provisions or principles, or impose particularly cumbersome rules of amendment to selected fundamental provisions of the constitution. Others establish procedures through which the substantive validity of constitutional amendments may be challenged in the constitutional court.  Courts in some countries, in particular India, have famously invoked an implied ‘basic structure’ doctrine to preclude amendments that affect the ‘basic’ normative and institutional configuration established in the constitution. The different forms of limits to the power of constitutional amendment have received varied degrees of theoretical and practical justifications and criticism from scholars around the world.

A cursory look at constitutional practice and existing scholarship reveals that the attention has been to find domestic tools of curving a largely domestic problem, the adoption of regressive constitutional amendments. This article suggests that supranational institutions may play an additional role in supressing regressive constitutional amendments. Sometimes, international tribunals may be the only resort. In particular, human rights treaty bodies may help to limit instances of regressive constitutional amendments. This is of course in addition to the activities of inter-governmental organisations and other international actors to use their ‘soft’ powers to discourage the adoption of regressive amendments. A recent decision of the African Court of Human and Peoples’ Rights against Tanzania provides a good example (Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v. The United Republic of Tanzania, Applications 009&011/2011). Interestingly, this decision is the first case in the history of the Court to be decided on merits in which the applicants were successful.

The case involved a challenge to the ban on independent candidacy in all levels of elections in Tanzania. To stand for presidential, parliamentary or local elections, individuals must be members of and be sponsored by registered political parties. The case has a long and interesting history. A constitutional challenge in 1993 against the ban on independent candidates was upheld by the High Court of Tanzania. In response, the government lodged an appeal against the decision in the Court of Appeal. However, it later withdrew the appeal and initiated a constitutional amendment to reverse the decision of the High Court. The eleventh constitutional amendment was enacted in 1994. The effect of this amendment was to reverse the decision of the High Court and (re)ban independent candidacy. A challenge to this constitutional amendment was again upheld by the High Court in a decision delivered in 2006. According to the Court, although Parliament has powers to enact legislation, such powers were not limitless. The Court declared that it had the power to declare certain provisions of the Constitution unconstitutional based on the human rights provisions of the Constitution. The Court created a kind of implied hierarchy between the different parts of the Constitution with the Bill of Rights standing at the helm of the ladder. As such, all laws, which the Court interpreted to include constitutional amendments, which have the effect of limiting the human rights provisions of the Constitution need to be reasonably necessary to achieve a legitimate objective and be proportional. The Court held that the eleventh amendment made unreasonable and unnecessary inroads into the right to political participation and association. It was therefore invalid.

However, the decision of the High Court was reversed by the Court of Appeal in 2009. The Court of Appeal held that courts only have the power to control the procedural validity of constitutional amendments. As long as an amendment scrupulously followed established procedures of constitutional amendment, courts do not have the power to invalidate such an amendment. The Court expressly considered and rejected the ‘basic structure’ doctrine of the Indian Supreme Court. The applicant did not relent. Since Tanzania has made a declaration under article 34(6) of the Protocol Establishing the African Court on Human and People’s Rights allowing individuals and NGOs with observer status before the African Commission on Human and Peoples’ Rights to submit cases to the African Court, the applicants submitted an application challenging the constitutional ban on independent candidacy.

Obviously, unlike a domestic court, the African Court is not concerned whether an alleged violation of Charter rights is a result of constitutional provisions or other ordinary laws. Indeed, it is an established rule of international law that states cannot invoke domestic law, including constitutional law, to abolish international responsibility. In a judgment delivered on 14 June 2013, the African Court ruled that the ban on independent candidacy violated the prohibition against discrimination and the right to equal protection of the law (article 2 and 3), the right to political participation (article 13), and the right to freedom of association (article 10) of the African Charter on Human and Peoples’ Rights. The Court ordered the state to rectify the violation. Given Tanzania is currently undergoing a constitutional reform process, it is likely that the ban on independent candidacy will be abolished.

The decision of the African Court has the effect of invalidating the constitutional amendment that reversed the decision of the High Court. Indeed, the Tanzanian Parliament does not have the power to reverse the decision of the African Court. This example demonstrates the potential of supranational human rights bodies in checking regressive constitutional amendments, which may not be possible at the domestic level. In fact, given the established international law rule that states cannot invoke domestic law, including constitutional law, to avoid international obligations, international human rights law and adjudication provides a potentially significant weapon in limiting regressive constitutional amendments.

However, supranational human rights bodies may only provide a partial limit to regressive amendments. Obviously, not all regressive amendments may directly affect human rights. It is only when a substantial link between an amendment and recognised human rights is established that supranational treaty bodies will have jurisdiction to accept challenges to constitutional amendments. Nevertheless, other supranational tribunals established for different purposes, such as the WTO Tribunal, may also provide additional safeguards against regressive constitutional amendments as far as their material jurisdiction extends. Moreover, international tribunals generally have less democratic legitimacy than domestic constitutional mechanisms. Indeed, non-compliance with decisions of supranational tribunals may partly be attributable to hostility towards supranational human rights organs. Perhaps, future work may assess the comparable legitimacy and effectiveness of domestic and international limits to procedurally valid regressive amendments.

International supranational tribunals provide an additional, not an alternative, safeguard against regressive constitutional amendments. The fact that international tribunals may invalidate a constitutional amendment may force states to reconsider the refusal to authorise their courts to assess the validity of constitutional amendments at least based on human rights standards. Such an empowerment may save states the embarrassment of having proposed amendments invalidated by an international tribunal. It is indeed a paradox to prohibit domestic courts from scrutinising the substantive validity of constitutional amendment when an international tribunal with arguably less democratic legitimacy and physical attachment may invalidate such an amendment. To avoid any potential paradox, the emergence and increasing prominence of international law and adjudication should therefore inform the choices of constitutional drafters and the jurisprudence of constitutional courts.

–Adem Kassie Abebe is a postdoctoral fellow at the University of Pretoria in South Africa. His research focuses on comparative constitutional law and human rights law with an African regional focus. He has published a number of articles on these issues in reputable journals around the world.

Suggested Citation: Adem Kassie Abebe,  A Partial Supranational Solution to the Problem of Regressive Constitutional Amendments, ICONnect blog, June 20, 2013, available at  http://www.iconnectblog.com/2013/06/a-partial-supranational-solution-to-the-problem-of-regressive-constitutional-amendments/