News

African Democrats Look for Ways to Curb ‘Imperial Presidency’

Militaries still overthrow constitutional democracies in Africa, as seen this year in Mali. But more often, civilian dictatorships emerge without much fanfare or publicity. In recent years, they’ve been made possible by the growth of unlimited powers of the presidency and by the absence of oversight of the executive by courts and parliament.

Multimedia

Audio
William Eagle

The “imperial presidency.” It’s the name given by many constitutional scholars and opposition politicians to unchecked powers that some say practically make the executive into a monarchy.

Strong presidents are part of a long tradition in Africa, from powerful colonial governors to leaders linked to one-party rule. Scholars say nearly everyone is complicit: they note many founding fathers believed that only powerful leaders could foster national unity and development. Their authority was not to be questioned by public debate or by other branches of government.

Professor of law Kwasi Prempeh, who teaches at Seton Hall Law School in Newark, New Jersey, said many African constitutions were amended in the 1990s to reflect multi-party democracy. But he said they left the issue of presidential power unanswered.

"What is executive power? It comes from constitutional tradition," he explained, "from a litany of laws going back to [the military era of] the 1960s [and even to the colonial era], controlling economy and security – all in legislation. We should step back and look at all laws carried over from one regime to the next [when we re-write our constitutions]. A lot of laws from the past have really cast a dark shadow on our new constitutions."

Opponents said Senegalese President Abdoulaye Wade 's decision to run for another term violated the constitution. Voters failed to renew his mandate in 2012.
Opponents said Senegalese President Abdoulaye Wade 's decision to run for another term violated the constitution. Voters failed to renew his mandate in 2012.

Those laws, adopted by parliaments and regimes in the past, give the president overwhelming powers over a broad range of areas, such as the police, internal security, the economy, land allocation, and state corporations.  Prempeh said they’ve become entrenched over time, and have come to define the president’s powers.

Accumulated powers

Prempeh said other modes of unchecked behavior persist. Among them are presidential directives, which some callgovernment by press release.” In addition, legislatures and courts often rely on the president for their budgets and other resources. He notes that budgetary support from overseas donors often goes through the president’s finance ministers, not the parliament. As a result, both the legislature and the courts often fail to act as a form of “checks and balances” against presidential power.

Some legislatures have openly relinquished power. Prempeh said in 2001, Ghana’s national assembly renewed a law from the 1960s giving the president the sole authority to establish government ministries and departments. In many countries, the president appoints legislators to the cabinet and to other positions. Prempeh said in Zambia, former president Federick Chiluba appointed nearly half of all legislators to his administration, effectively buying off potential rivals within the party.

Some legislatures have even ceded to the president the power to name the speaker of parliament, ensuring the interference of the executive branch in the body’s day-to-day business. In many countries, the president, not the parliament, originates legislation, including the budget. It can be approved or rejected, but not amended by the legislature.

The president, sometimes with the support of his party’s majority in parliament, often has the power to name members of the judiciary, including constitutional courts. They often rule in favor of presidents who want to overturn term limits.

Redefining power

Scholars have various ideas for limiting the power of the executive.

Prempeh argues for a review of all existing laws that focus power in the presidency. Constitutional reforms would make clear the powers of the three branches of government and ensure funding for each does not depend on the president.

Prempeh also called for rules encouraging the democratization of political parties, which he says often revolve around the personalities funding them, rather than ideas. Today, he said, political parties lack internal democracy and can fire members who do not follow the party line. He said parties are therefore hijacked by presidents, who use their control of ‘slush funds’ to fund their parties.

"In Ghana," he explained, "there are provisions in constitution which says the internal governance of parties should conform to democratic principles. The general understanding [even though this has not been tested in court] is that one person cannot hijack the party and turn it into their personal estate.

"You are not going to have an undemocratic party producing democratic politicians. If the party is not democratic, does not hold primaries or allow anyone to contest for president, then that is the beginning of autocracy."

Professor Prempeh says former Zambian president Frederick Chiluba appointed nearly half of the legislature to government posts.
Professor Prempeh says former Zambian president Frederick Chiluba appointed nearly half of the legislature to government posts.

Tom Ginsburg is professor of international law at the  University of Chicago Law School and professor of political science. He and Professor Prempeh support the introduction of constitutional courts, like the one in South Africa. It can review government policy and mandate changes if the court finds violations of the constitution.

The French connection

Ginsburg said that in francophone Africa, there are constitutional courts that can hear cases – and suggest amendments -- brought to them by the president, deputies and other political groups. Most of those cases judge the legality of laws passed by parliament, but only before they’ve been signed.

He said the courts are based on an idea introduced by a well-known French leader from the 1960s who stood for a strong executive power over the legislature.

"It’s really a mechanism for the political system to work out problems within legislation before it becomes law," said Ginsburg. "It was originally designed by former president Charles De Gaulle to check the French parliament and has fit well in political culture of francophone West Africa, in which strong men can use the constitutional court to prevent parliament from becoming too independent."

"France amended its constitutional court in 2008 to provide for individual complaints against laws after they have been promulgated, and that was a radical change in France. But most of the former French colonies have not followed that. They have retained the old model. Maybe in coming decades they’ll change their system and that would allow further development of constitutional courts, which would be an independent check on government."

A new start

Prempeh said that new constitutions should rethink the idea of retaining wholesale the judges from the past.

"You are delivering a state-of-the-art constitution to a holdover judiciary whose traditions and habits [have been formed in] an authoritarian period," he said. "And then you expect that somehow overnight…the same [judges] will turn around and begin to come up with very liberal j[interpretations and] jurisprudence to back up the constitution."

He suggests a solution from Kenya, where a new constitution was adopted in 2010: sitting judges were put on leave and had to re-apply for their jobs.

And he said constitutional changes could provide parliament with a greater say.  One idea would mandate that certain actions like appointments to independent constitutional offices be approved by a super-majority.

He said ruling parties are holding on to their parliamentary majorities with fewer numbers, thus forcing them to negotiate with opposition parties in order to govern.  And that, said Prempeh, is an opening for enhanced democracy.

This forum has been closed.
Comments
     
There are no comments in this forum. Be first and add one

Featured Videos

Your JavaScript is turned off or you have an old version of Adobe's Flash Player. Get the latest Flash player.
Making Music, Fleeing Bombs: New Film on Sudan’s Internal Refugeesi
X
Carolyn Weaver
July 06, 2015 6:47 PM
In 2012, Sudanese filmmaker Hajooj Kuka went to make a documentary among civil war refugees in Sudan’s Blue Nile and Nuba Mountains region. What he found surprised him: music was helping to save people from bombing raids by their own government. VOA’s Carolyn Weaver has more.
Video

Video Making Music, Fleeing Bombs: New Film on Sudan’s Internal Refugees

In 2012, Sudanese filmmaker Hajooj Kuka went to make a documentary among civil war refugees in Sudan’s Blue Nile and Nuba Mountains region. What he found surprised him: music was helping to save people from bombing raids by their own government. VOA’s Carolyn Weaver has more.
Video

Video Rice Farmers Frustrated As Drought Grips Thailand

A severe drought in Thailand is limiting the growing season of the country’s important rice crop. Farmers are blaming the government for not doing more to protect a key export. Steve Sandford reports from Chiang Mai, Thailand.
Video

Video 'From This Day Forward' Reveals Difficult Journey of Transgender Parent

In her documentary, "From This Day Forward", filmmaker Sharon Shattuck reveals the personal journey of her transgender father, as he told his family that he always felt he was a woman inside and decided to live as one. VOA’s Penelope Poulou has more.
Video

Video Floodwaters Threaten Iconic American Home

The Farnsworth House in the Midwest State of Illinois is one of the most iconic homes in America. Thousands of tourists visit the site every year. Its location near a river inspired the design of the house, but, as VOA’s Kane Farabaugh reports, that very location is now threatening the existence of this National Historic Landmark.
Video

Video Olympics Construction Scars Sacred Korean Mountain

Environmentalists in South Korea are protesting a Winter Olympics construction project to build a ski slope through a 500-year-old protected forest. Brian Padden reports that although there is strong national support for hosting the 2018 Pyeongchang Winter Olympics, there are growing public concerns over the costs and possible ecological damage at the revered mountain.
Video

Video Xenophobia Victims in South Africa Flee Violence, Then Return

Many Malawians fled South Africa early this year after xenophobic attacks on African immigrants. But many quickly found life was no better at home and have returned to South Africa – often illegally and without jobs, and facing the tough task of having to start over. Lameck Masina and Anita Powell file from Johannesburg.
Video

Video Family of American Marine Calls for Release From Iranian Prison

As the crowd of journalists covering the Iran talks swells, so too do the opportunities for media coverage.  Hoping to catch the attention of high-level diplomats, the family of American-Iranian marine Amir Hekmati is in Vienna, pleading for his release from an Iranian prison after nearly 4 years.  VOA’s Heather Murdock reports from Vienna.
Video

Video UK Holds Terror Drill as MPs Mull Tunisia Response

After pledging a tough response to last Friday’s terror attack in Tunisia, which came just days before the 10th anniversary of the bomb attacks on London’s transport network, British security services are shifting their focus to overseas counter-terror operations. VOA's Henry Ridgwell has more.
Video

Video Obama on Cuba: This is What Change Looks Like

President Barack Obama says the United States will soon reopen its embassy in Cuba for the first time since 1961, ending a half-century of isolation. VOA White House correspondent Luis Ramirez reports.
Video

Video Hate Groups Spread Influence Via Internet

Hate groups of various kinds are using the Internet for propaganda and recruitment, and a Jewish human rights organization that monitors these groups, the Simon Wiesenthal Center, says their influence is growing. The messages are different, but the calls to hatred or violence are similar. VOA's Mike O’Sullivan reports.
Video

Video Blind Somali Journalist Defies Odds in Mogadishu

Despite improving security in the last few years, Somalia remains one of the most dangerous countries to be a journalist – even more so for someone who cannot see. Abdulaziz Billow has the story of journalist Abdifatah Hassan Kalgacal, who has been reporting from the Somali capital for the last decade despite being blind.
Video

Video Rabbi Hits Road to Heal Jewish-Muslim Relations in France

France is on high alert after last week's terrorist attack near the city Lyon, just six months after deadly Paris shootings. The attack have added new tensions to relations between French Jews and Muslims. France’s Jewish and Muslim communities also share a common heritage, though, and as far as one French rabbi is concerned, they are destined to be friends. From the Paris suburb of La Courneuve, Lisa Bryant reports about Rabbi Michel Serfaty and his friendship bus.

VOA Blogs