Beyond Term Limits: Restraining Chief Executives in Africa

—Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

On 8 March 2021, the Mo Ibrahim Foundation announced that President Mahamadou Issoufou of Niger won the 2020 Ibrahim Prize for Achievement in African Leadership. The Mo Ibrahim Prize aims to help African countries to solve, or at least ease, what Rosalind Dixon and David Landau called “the end game problem” presidents face at the end of their tenure: that is whether to comply with term limits, ‘which in the short run may lead to the loss of power and privileges associated with high electoral office and in the long run, may bring in only limited and uncertain reputational benefits.’[1] By recognizing former executives as “exceptional role models for the continent” and awarding them some $5 million USD, the Mo Ibrahim Prize tries to ensure that these executives continue in other public roles on the continent. Although we do not know how this influences the decisions of African executives, the reputational and financial benefits that come with the Mo Ibrahim Prize can ease “the end game problem”.

Since its establishment in 2007, only five leaders have won this prize: Joaquim Chissano of Mozambique (2007), Festus Mogae of Botswana (2008), Pedro Pires of Cabo Verde (2011), Hifikepunye Pohamba of Namibia (2014), and Ellen Johnson Sirleaf of Liberia (2017), while Nelson Mandela was also the inaugural Honorary Laureate in 2007. These leaders and their countries have different democratic records: for instance, according to the 2020 Economist Intelligence Unit’s Democracy Index, Cabo Verde, Botswana, South Africa, and Namibia are “flawed democracies”, Liberia is a “hybrid regime”, while Mozambique and Issoufou’s Niger are “authoritarian regimes”.

However, all these leaders have at least one thing in common: they respected their constitutional term limits. Issoufou was first elected President in 2011 and stepped down at the end of his second term, “demonstrating his clear respect for the constitution”, according to the press release of the Mo Ibrahim Foundation. The prize committee further states that “[t]hroughout his time in office, he has fostered economic growth, shown unwavering commitment to regional stability and to the constitution, and championed African democracy.” Yet, according to the 2020 Ibrahim Index of African Governance that covers ten years of data from 2010-2019, a time period that roughly covers Issoufou’s presidency, Niger is ranked 28^th in its overall governance out of 54 countries, much lower than Paul Kagame’s Rwanda (ranked 11^th) and Yoweri Museveni’s Uganda (ranked 22^nd). Nonetheless, unlike Issoufou, Museveni and Kagame were not willing to step down at the end of their terms. Museveni, a 76-year-old former rebel leader in office since 1986, removed both constitutional term limits and age limits to stay in office. Similarly, Kagame a 63-year-old former rebel leader in office since 2000, extended the constitution’s two-term limit, which would allow him to stay in office possibly until 2034.

Issoufou’s decision to step down after his second term marked the first peaceful transfer of power in Niger’s history since its independence in 1960. By virtue of this fact alone, Issoufou may deserve the 2020 Ibrahim Prize for Achievement in African Leadership.

The respect for term limits is increasingly associated with and considered as a litmus test for democracy, the rule of law, and constitutionalism on the continent. Nonetheless, the 2020 Bertelsmann Transformation Index Africa Report shows that while leadership changes results in ‘an initial wave of optimism’, the general trajectory is more of continuity than change: “the more things change the more they stay the same”. Three decades after the democratic transition in the 1990s, sub-Saharan Africa has only one “full democracy’, six “flawed democracies”, thirteen “hybrid regimes”, and twenty-two “authoritarian states”, according to the 2020 Economist Intelligence Unit’s Democracy Index. Based on the 2020 Freedom House Report, “[o]nly seven countries in sub-Saharan Africa are now in the Free category and only 9 percent of the people in sub-Saharan Africa now live in Free countries.” While there are important national and sub-regional differences in democratic performance, the quality of democracy on the continent is generally low (as the Afrobarometer survey shows) and many countries are at the bottom in democracy indexes globally.

In as much as we closely investigate presidential term limit provisions and their evasion, we do not seem to give equal emphasis on what presidents can do while they are in the office: we pay more attention to the temporal limitation of executive power than its substantive limitation, while both are important.  

Since the onset of the third wave of democratization in Africa in the 1990s, the continent has developed rules of entry and exit to political office, both anchored towards the peaceful transition of power and consolidation of democracy, the absence of which has bedeviled many African states in the first two decades following independence. While the introduction of term limits in many African constitutions makes the practice of “presidents for life” legally a thing of the past, the introduction of the rules of unconstitutional changes of government by the African Union (AU) both protects incumbents from coups (and other unlawful means of accessing political power) and prohibits them from undemocratically extending their tenure. Practically, these rules of entry and exit to political office have worked in some instances while failing in others: for example, term limits have ended the tenure of several strong African presidents such as Olusegun Obasanjo of Nigeria and Daniel Arap Moi of Kenya, while many others such as Museveni and Kagame have managed to change or evade them. Similarly, the AU’s rules of unconstitutional changes of government have played an important role in restoring constitutional order in some states such as in Madagascar (2013), while doing little in other states such as in Egypt (2013). As term limits and the rules of unconstitutional changes of government are key constitutional devices to regulate entry and exit to political office democratically, we have to find creative ways to make them more effective. 

Thus far, however, the main focus has been more on changing the “office holder” rather than on reforming the “office” itself, which in some ways creates the conditions for the evasion of term limits.[2] Beyond opening the political office to multiparty competition and limiting the tenure of presidents for life, many constitutions of African states did not sufficiently change the substantive allocation of power between the branches of government, nor did they change the practice of executive power.[3] As in the ancien régime, presidents still enjoy more powers than the legislature and the judiciary. These powers range from the expression of the symbolic supremacy of the president over any other person or organ as in Uganda, to wider appointment and emergency powers that can diminish the principle of separation of powers and checks and balances, and to presidential immunity.[4]

Additionally, in many of the region’s constitutions, legislative and policy initiation—including those pertaining to national budgets—are the prerogatives of the executive, while the role of parliament remains limited to either passing or not passing bills. Even in this role, given the phenomenon of dominant or one-party systems coupled with wider presidential leverage, parliaments are usually receptive to executive bills and proposals.[5] Moreover, through subsidiary legislation, the executive enjoys even wider discretion, thereby escaping both parliamentary and judicial oversight.[6]

Most importantly, the democratic constitutions of the 1990s focused on reforming the written text while retaining much of the legal framework that provides government and public administration with their significant and untamed political power. The independence constitutions retained colonial legal systems—which were inherently coercive, exploitative, and discretionary—as the foundation of public administration in postcolonial Africa. The republican constitutions, rather than reforming these legal systems, added some other statutes and decrees that gave even more power to the government as well as to the administrative apparatus. Similarly, the constitutional reforms of the 1990s focused on the written constitutions while reaffirming the continuity of legal systems. For instance, Museveni not only refused to reform the repressive laws that were in force, but he even reinforced them.[7] Even in Ghana, a state which currently has one of the promising democratic experiments on the continent, “[t]he influence of the colonial militaristic orientation to policing, with its quintessential lack of accountability and respect for the fundamental rights of citizens, remains strong and visible.”[8] Despite the many constitutional reforms, the repressive parts of the legal systems continue with little alteration across the continent. The continuity of the repressive parts of the legal systems maintains the power of the executive (as the executive controls public administration) as both a matter of law and practice, despite some progressive constitutional changes. By operating within the boundaries of the legal systems, executives can reclaim the powers that the constitutional reforms took away.

Ultimately, as H. Kwasi Prempeh observed, “[o]nce installed in office and for the duration of his term, the contemporary African president generally retains within the constitutional and political orbit the essential attributes of imperium long associated with presidential power in postcolonial Africa.”[9] Even in the best of times, respect for term limits and commitment to multiparty democracy can only help to replace one strong executive with another strong executive that operates with the same modus operandi of the ancien régime while in office. At the worst of times, the president can simply amend the term limit provision and remain in office, and the military may come back to politics, for instance, as it did in Mali (2012 & 2020), Guinea Bissau (2012), Burkina Faso (2015), Zimbabwe (2017), and Sudan (2019).    

However, if we pay some attention to what presidents can do while they are in the office, revise the power map among the branches of government, and reform public administration, we may be able to tame the imperial impulses of African presidents. And just maybe, we will be able to minimize–if not completely avoid–the evasion of term limits.

Suggested citation: Berihun Adugna Gebeye, Beyond Term Limits: Restraining Chief Executives in Africa, Int’l J. Const. L. Blog, Mar. 24, 2021, at: http://www.iconnectblog.com/2021/03/beyond-term-limits-limiting-the-powers-of-executives-in-africa/

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[1] Rosalind Dixon and David Landau, ‘Constitutional End Games: Making Presidential Term Limits Stick’ (2020) 71 Hastings Law Journal 359, 362.

[2] See Mila Versteeg and others, ‘The Law and Politics of Presidential Term Limit Evasion’ (2020) 120 Columbia Law Review 173.

[3] See H Kwasi Prempeh, ‘Progress and Retreat in Africa: Presidents Untamed’ (2008) 19 Journal of Democracy 109.

[4] See Charles Manga Fombad and Enyinna Nwauche, ‘Africa’s Imperial Presidents: Immunity, Impunity and Accountability’ (2012) 5 African Journal of Legal Studies 91, 91-118.

[5] See Renske Doorenspleet and Lia Nijzink (eds), One-Party Dominance in African Democracies (Lynne Rienner Publishers 2013).

[6] See H Kwasi Prempeh, ‘Africa’s “Constitutionalism Revival”: False Start or New Dawn?’ (2007) 5 International Journal of Constitutional Law 469.

[7] Migai Akech, ‘Constraining Government Power in Africa’ (2011) 22 Journal of Democracy 96, 100.

[8] Justice Tankebe, ‘Colonialism, Legitimation, and Policing in Ghana’ (2008) 36 International Journal of Law, Crime and Justice 67, 82.

[9] Prempeh, ‘Africa’s “Constitutionalism Revival”’ (n 6) 497.