Burkina Faso: Introductory Note
Augustin LoadaEdited By: Institute for International and Comparative Law in Africa
I. Origins and Historical Development of the Constitution
Until the end of the 1980s the post-colonial political history of Burkina Faso was characterized by great instability. Since independence from France in 1960, the country has experienced alternating periods of constitutional order and emergency rule. This instability is a reflection of the risks, weaknesses, and uncertainties of the democratic process in Burkina Faso. However, a long process of democratization began in the early 1990s and continues today.
Following independence, the constitution of the First Republic of Upper Volta was a presidentialist constitution, which granted extraordinary powers to President Maurice Yaméogo. His authoritarianism and poor management were the cause of his downfall on 3 January 1966, following a popular uprising. He was succeeded by General Sangoulé Lamizana. After three years of military rule, a new parliamentary-type constitution was adopted by referendum on 14 June 1970. A special feature of this constitution was to establish a sort of diarchy in the executive, between the Prime Minister and the President of the Republic. The constitution provided for the latter to be the highest-ranking army officer. This reflected the military’s influence on political life in Burkina Faso since its first involvement in politics on 3 January 1966. Similarly, the constitution allocated one-third of ministerial positions to the military. The constitutional regime of the Second Republic was, however, short-lived. On 8 February 1974, the Head of State decided to end this constitutional experiment, following a crisis between the Prime Minister and the President of the National Assembly.
After three years of emergency rule, a new constitution establishing the Third Republic was adopted by referendum on 27 November 1977. The outgoing President, General Lamizana, was a candidate in the presidential election of 14 May 1978. He was elected in the second round on 28 May 1978. This unique democratic experiment in a sub-regional environment characterized by one-party rule was even shorter lived than the last one. It was interrupted by a military coup on 25 November 1980, which opened a Pandora’s Box. Burkina Faso experienced an era of political instability marked by a cascade of military coups in 1982, 1983, and 1987. The period from 1983 to 1987 was the revolutionary regime of Captain Thomas Sankara. He changed the name of the country—Upper Volta—by borrowing from the vocabulary of local languages. Henceforth, the country was called ‘Burkina Faso’ and its citizens ‘Burkinabè’, which mean, respectively, ‘the land of upright people’ and ‘upright people’. Deep political, economic, and social changes were launched, at the cost of several human rights violations. For the Sankara regime, the ‘bourgeoisie democracy’ that existed in Burkina Faso only benefited an exploitative minority. The political plan of the young revolutionary elite was to set up a ‘people’s democracy’ that was more concerned about popular welfare and made the people the key role players in writing their own history. This experiment was brutally interrupted on 15 October 1987 when the young leader was murdered during a bloody coup d’état. Following three years of one-man rule, Captain Blaise Compaoré, the country’s new leader, eventually conceded to a political opening up following both internal and external pressure.
Under both internal1 and external2 pressure, and in a speech to the nation on 31 December 1989, President Blaise Compaoré said he wished to move towards the rule of law in Burkina Faso. On 20 April 1990 the President of Burkina Faso signed a decree outlining the composition and powers of a Constitutional Commission responsible for drafting a new constitution. This was, however, not done in a democratic manner. Indeed, the regime in power—the Popular Front—tried hard to control the Commission by appointing representatives who were, in large part, loyal to it. The new constitution was thus tailored to suit President Compaoré.
Despite its limitations, the founding Constitution of the Fourth Republic of Burkina Faso was widely approved by referendum on 2 June 1991 and welcomed by the majority of political parties and civil society organizations. The new Constitution was liberal to the point of enshrining the principles of the secular state, the rule of law, and pluralist democracy through its references to the main international and African human rights legal instruments. The first 30 articles of the Constitution are devoted to protecting the rights and freedoms of citizens. In addition, the Constitution considers itself as the only source of legitimacy. Therefore, any power that does not derive its source from the Constitution, especially from a coup, is illegal and subject to civil disobedience on the part of citizens (Article 167).
The holding of presidential and parliamentary elections (in December 1991 and May 1992, respectively) was the foundation of the Fourth Republic of Burkina Faso; subsequently, the routine holding of elections and the uninterrupted functioning of constitutional institutions demonstrated that the democratic process was taking root. Burkinabè constitutionalism, however, remained characterized by numerous shortcomings. In this regard, there was a strong concentration of power in the Head of State, who therefore looked like a ‘constitutional monarch’. The result was a weakening of all institutional mechanisms established to ensure the separation of powers, freedom of the press, and the effective realization of human rights and duties. In practice, the Constitution had not really managed to prevent or limit the abuses of the regime led by President Compaoré.
In addition, the Constitution was the subject of various manipulations emanating from constitutional reforms—in particular, on the duration and number of presidential terms enshrined in Article 37. Up until 2015, the Constitution had been amended eight times.3 The first of these modifications took place in 1997 and involved the presidential term, among other issues; it undermined the democratic process instead of consolidating it, in the sense that removing the limit on presidential terms made it more difficult to achieve democratic change in Burkina Faso through elections. However, the murder of journalist Norbert Zongo on 13 December 1998, and the unprecedented socio-political crisis that ensued, forced the regime to reintroduce the limitations clause in the constitutional revision of 11 April 2000. Henceforth, no President could serve more than two consecutive terms. Nevertheless, after serving two consecutive terms (1991-1998 and 1998-2005), President Compaoré decided to run in the 2005 presidential elections. Invoking the principle of non-retroactivity of the law, the Conseil Constitutionnel (Constitutional Council) ruled in October 2005 that he could run for another two terms. Once re-elected in November 2005, President Compaoré could therefore be a candidate for a final term in November 2010. He could not legally run in the 2015 presidential elections.
Anticipating the end of President Compaoré’s last term, the Congress for Democracy and Progress (CDP) party decided from July 2009 to initiate a revision of the Constitution of June 1991. This initiative was immediately interpreted by many Burkinabè as a ploy to remove the clause limiting the number of presidential terms. Civil society and opposition political parties began to help Burkinabè understand the real issues involved in such a reform: to prevent the occurrence of democratic change by allowing the incumbent President to remain in power beyond the limit set by the Constitution. After dithering, the government adopted a constitutional amendment bill on 21 October 2014, based on Articles 161 and 165 of the Constitution. Rather than remove the limitations clause contained in Article 37, the bill still provided that ‘the President shall be elected for five years’, although he was now ‘eligible for re-election twice’. Moreover, in its transitional provisions the bill provided that the clause was applicable to the current term. Blaise Compaoré could therefore still run for another two consecutive terms! This was a violation of Article 23(5) of the African Charter on Democracy, Elections and Governance ratified by Burkina Faso in 2010. This article prohibits ‘any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’, considered by the Charter as a form of unconstitutional change of government.
The draft was referred to the National Assembly which, sitting in plenary on 23 October 2014, adopted the agenda which had been drawn up by the conference of Presidents the day before, by a qualified majority of 98 votes out of 127. The examination and adoption of the constitutional amendment bill was scheduled for 30 October 2014. However, this plan failed due to a popular uprising on that day. The demonstration turned into an insurrection. The National Assembly and the government were dissolved that same day. The next day, 31 October 2014, under pressure from the people who remained mobilized, Compaoré announced his resignation at the cost of hundreds of wounded and thirty dead.
A Constitutional Charter was adopted by consensus by the representatives of political forces and civil society in Burkina Faso, in addition to the existing Constitution. The Charter enshrined the advent of a transitional regime. This regime’s primary mandate would be to hold new presidential and legislative elections that would lay the foundations for a new democratic regime in Burkina Faso. These two elections were held on 29 November 2015. They were won by the People’s Movement for Progress (MPP) whose candidate, Roch Marc Christian Kaboré, was elected President of Burkina Faso. His party won the parliamentary elections but was forced to form a coalition with other parties in order to obtain a majority in Parliament.
Another mission of the transitional regime was to initiate institutional reforms to strengthen democracy. Thus the Constitution was revised by Law No. 072-2015 / CNT of 5 November 2015. The innovations of this law included, among others, a lock-in clause limiting the number of presidential terms, which can henceforth no longer be revised, and the return to a single chamber with the abolition of the Senate, the creation of which had been highly controversial. Finally, the National Transitional Council drafted a constitution for a Fifth Republic. It is now up to the new authorities of Burkina Faso to decide the fate of this proposal.
II. Fundamental Principles of the Constitution
The constitutional evolution of post-colonial Burkina Faso reveals a commitment to the fundamental principles of pluralist democracy. Authoritarianism has certainly often featured in the exercise of power, but this has usually been a moderate authoritarianism. Regimes which were tempted to be dictatorial exposed themselves to popular uprisings or social resistance. Overall, most political regimes strove to respect fundamental rights and freedoms, with the notable exception of the revolutionary period. Indeed, from 1983 to 1987, in the name of ‘popular democracy’, the young ruling elite imposed the most draconian regime in Burkina Faso’s post-colonial history, not without resistance from civil society. Individuals and organizations suspected of being ‘counter-revolutionary’ or ‘reactionary’ saw their rights and freedoms violated.
Apart from the constitution of the First Republic, all constitutions adopted in Burkina Faso have enshrined the principle of a limited number of presidential terms, even if the historical experience has been one of failure to implement this principle. In addition, freedom of the media, of political parties, and of association was widely respected under the Lamizana regime, notwithstanding some restrictive measures during crisis periods. Despite its central role during this period, the army demonstrated democratic openness and restraint in the management of power. The fact that the outgoing President, General Lamizana, was a candidate in the 1978 presidential election in a sub-regional context characterized by the single party state and elections without a choice of candidates was symptomatic of the commitment of Burkina Faso’s elite at the time to multiparty democracy. The military coups of the 1980s, however, caused Burkina Faso to fall into political violence. In the early 1990s, however, after a long period of instability, the country returned to normal constitutional life under the chairmanship of Captain Blaise Compaoré.
The Constitution of Burkina Faso of 2 June 1991 enshrines several fundamental principles necessary for building a pluralistic, democratic, prosperous, and equal society based on the rule of law and principles of good governance. Economically, it enshrines the right to property, which cannot be challenged, except in the public interest and after fair compensation determined in accordance with the law (Article 15). Similarly, the Constitution guarantees the freedom to conduct business (Article 16) and thus lays the foundation for a market economy.
Politically, it provides for a semi-presidential system based on the separation of executive, legislative, and judicial powers. Executive power is shared between the President of Burkina Faso as Head of State, and the Prime Minister as Head of Government. The exorbitant powers conferred on the President of Burkina Faso, however, are indicative of his indisputable primacy. Originally elected by direct universal suffrage for a term of seven years—and, since the 2000 constitutional amendment, for a term of five years—the President of Burkina Faso determines, among other matters, the principal direction of state policy and appoints the Prime Minister and Head of Government, who carries out national policy. The presidentialism that characterized this regime was strengthened by the existence of an ultra-dominant party that wielded a hegemony on all facets of state power (executive, legislative, and judicial) for almost twenty-seven years. The Parliament of Burkina Faso became unicameral following the abolition of the second chamber in 2002. A decade later, a constitutional amendment was passed on 11 June 2012, restoring bicameralism, among other things. However, the re-establishment of the Senate, the second chamber, had strong opposition as President Compaoré was suspected of trying to create an instrument to orchestrate a constitutional revision that would enable him to serve a fifth presidential term. The constitutional revision of 5 November 2015 restored the unicameral parliament by abolishing the Senate, which had not even had time to begin its work.
With regard to the judiciary, the Constitution enshrines the principle of independence. However, the majority of Burkinabè feel that its credibility remains limited, despite reforms in recent years. In particular, the constitutional revision of 5 November 2015 has further strengthened the independence of the judiciary by cutting the umbilical cord between the executive and the High Council of the Judiciary (HCJ), the body responsible for regulating justice. Henceforth the positions of President and Vice-President of the HJC are now assigned respectively to the First President of the Court of Cassation and the First President of the Conseil d’Etat, rather than to the Head of State and the Minister of Justice, respectively. The major challenge remains, however, to strengthen the capacity of members of the judiciary to perform their duties with professionalism.
The Constitution of Burkina Faso enshrines popular will as the only source of government legitimacy. In this context it is a fundamental right to participate in the management of public affairs, including the right to elect or to be elected. An independent national electoral commission (INEC) was set up in Burkina Faso, in 2001, to ensure that this right is guaranteed in a transparent and genuine manner. Until the late 1980s, elections were organized by the government itself, through the Ministries of the Interior or of Territorial Administration. However, the extreme politicization of government administration, and the lack of trust from opposition parties and civil society with regard to the impartiality of territorial administration, resulted in a near universal rejection of this type of election administration in favour of independent electoral management, namely the INEC. The professionalism of the latter has strengthened over the years. Nevertheless, the INEC always needs to assert its independence vis-à-vis the government, including financially, and struggles to overcome the attempts at manipulation emanating from competing political forces, especially at the local level.
According to Article 31 of the Constitution, Burkina Faso is a unitary state: a state with one source of political and governmental action. In this regard, the country inherited a centralized administrative system from the colonial period, which was never fundamentally challenged by successive political regimes. In a country with more than 60 ethnic groups, including the Moaga group, which accounts for almost half of the population, and a mosaic of other groups, the elite see the unitary state as the legal form best suited to the socio-cultural context of Burkina Faso. However, for better management and to ease government centralization, a policy of decentralization and administrative devolution has been implemented cautiously since independence. It was not until the advent of the Fourth Republic in 1991 that a genuine process of decentralization was launched, with the organization of local elections in 1995, 2000, 2006, and 2012. Regional and local authorities (over 350 rural and urban centers, and 13 regions) were established, even though they still suffer from a weak institutional capacity.
One of the major innovations of the constitutional amendment of 5 November 2015 was reaffirmed in the Preamble of the Constitution: ‘the republican identity of the defence and security forces’. Article 51 also provides that ‘the President of Burkina Faso is the Commander-in-Chief of the national armed forces; in this capacity, he shall preside over the High Council of Defence. He shall appoint the National Defence Chief of Staff’. However, given the omnipresence of the military in politics since it seized power on 3 January 1966, a major challenge remains for the military to submit to civilian rule and come under democratic control of the elected executive and legislature. In recent years, the governance of the defence sector and the security of Burkina Faso has become a concern. There are sometimes tensions in the relations between civilians and the military, in addition to military mutinies and attempts to destabilize civilian governments in recent years. A more comprehensive reform of governance in this sector has been recommended as part of the transition, which began after the fall of the Compaoré regime in late October 2014, in particular to strengthen the republican character of the defence and security forces and to ensure their de-politicization.
Relations between the state and religious groups are governed primarily by the principle of secularism, a term which has never been defined under the law in Burkina Faso. In general, the State strives to maintain harmonious relations with religious groups, which often work in the social sector (health, education, access to clean water, the fight against poverty, etc.), complementing the relevant sectoral policies of the State. Tensions are not absent from relations between the State and some communities, due either to poorly-perceived State decisions by one or more religious communities, or due to positions taken by the latter that are poorly received by politicians. Tensions within communities or between religious communities also exist, even if these are often low-intensity conflicts. However, maintaining peaceful coexistence between different religious groups has become a major political issue today in Burkina Faso, due to the rise of conservative tendencies and the political demands in some communities, all of which could be catalysts for religious intolerance and the undermining of social cohesion.
III. Human Rights Protection
The Preamble of the Constitution endorses the Universal Declaration of Human Rights and the main international and regional human rights instruments. Regional instruments include the African Charter on Human and Peoples’ Rights, the African Charter on Democracy, Elections and Governance, and the Economic Community of West African States (ECOWAS) Protocol on Democracy and Good Governance. The rights and freedoms enshrined in these instruments are included, at least in part, in the body of the Constitution, which devotes its first part to the human rights and duties of citizens. In the first 13 articles of its first chapter, the Constitution lists all the civil rights and duties granted to citizens. It then devotes four articles to political rights and duties, and another thirteen articles to economic, social, and cultural rights.
All these fundamental rights are protected against violation by private individuals. Under Article 125 of the Constitution, the responsibility to protect lies with the judiciary. In reality, human rights must be protected as a priority, mostly from public authorities, because they have greater means and pose greater threats. Human rights protection and implementation is not the exclusive responsibility of the State; these responsibilities are equally applicable to all citizens, civil society organizations as well as different role players in the public and private sectors.
Despite its prolixity on human rights, the 1991 Constitution of Burkina Faso does not provide absolute rights. Its Title I is not devoted exclusively to human rights; it also provides for duties, following the example of the African Charter on Human Rights and Peoples’ Rights, to which it refers in the Preamble. This is a reflection of the communitarian conception of African societies in which there is no distinction between rights and duties, on the one hand, and between the individual and the community, on the other, but rather harmony between the two. It also reflects a view at odds with the liberal conception of human rights that puts individual rights above duties or collective rights. It is important to note that duties are only symbolically dealt with in Title I. Indeed, of over thirty articles on rights and duties, only three deal with the duties of the citizen:
– the duty to contribute to the defence of territorial integrity and to fulfill national service when required;
– the duty to honour one’s tax obligations; and
– the duty of parents to raise their children and the latter’s duty to respect their parents.
However, the manner in which these rights are formulated, consecrated, or guaranteed—in particular, how economic, social, and cultural rights are formulated—casts doubt on the intention of the Constitution’s drafters to ensure the effective protection of human rights. By way of illustration, given that the Constitution provides in Article 18 that ‘education, instruction, training, social security, housing (…) are social and cultural rights guaranteed by this Constitution which aims to promote them’, one wonders whether the Constitution does not, at the same time, intend to dilute the binding nature of these rights. In the same vein, the Constitution provides in Article 19 paragraph 1 that ‘the right to work shall be guaranteed equally to all persons’; in its Article 20, that ‘the State shall ensure the constant improvement of labour rights and the protection of workers’; and in its Article 26, that ‘the right to health is guaranteed. The State shall work for its promotion.’ These words used by the Constitution’s drafters no doubt represent a desire to avoid placing constraints on or limiting the power of the Public Authority under the pretext of a lack of State resources. Such a choice casts doubt on the justiciability of economic, social, and cultural rights.
Moreover, Burkina Faso does not have a sufficiently developed culture of human rights. Ignorance, poverty, and regressive customs often lead individuals and groups to ignore human rights in their social relations. Examples include social violence, female genital mutilation, and the lynching of delinquents or suspected thieves by the people themselves. State authorities are not blameless. In these cases, however, human rights violations come about due to the desire for efficiency, a lack of resources (such as infrastructure), and/or the absence of a true conviction of human rights. Inhuman, cruel, degrading, and humiliating treatment and physical or mental torture are therefore common in Burkina Faso. The same goes for the abuse and mistreatment of children, as well as arbitrary arrest and detention. Public authorities often organize human rights training and awareness activities for police officers. Practices which are prohibited by the Constitution are too deeply anchored in social mores or with the security forces, who are more concerned about effective and expeditious methods than with human rights, to expect them to disappear readily. This is especially so when the law which should punish such violations is itself not credible.
IV. Separation of Powers
The Constitution organizes the power of the State around the principle of separation of powers. Thus it makes a distinction between the executive (to which it devotes two titles: one to the President of Burkina Faso (Title III) and the other to the government (Title IV)); the legislature, assigned to Parliament (Title V); and finally, the judiciary (Title VIII).
The President of Burkina Faso has strong powers of his own, as well as powers shared with the Prime Minister. With regard to his own powers, he may call a referendum on the advice of the Prime Minister and the President of the National Assembly (Article 49). He also has other personal powers, which are exercised in respect of the government, Parliament, and the judiciary. In times of crisis, the powers of the President of Burkina Faso are increased under Article 59 of the Constitution. With respect to the government, the President of Burkina Faso
– appoints the Prime Minister—whose appointment is further approved by Parliament—and dismisses him, either through the former’s resignation or on his own initiative in the best interests of the nation (Article 46);
– chairs the Council of Ministers (Article 47); and
– determines the principal direction of state policy (Article 36, paragraph 3).
With respect to Parliament, the President of Burkina Faso
– may communicate with the National Assembly, either directly in person or through messages (Article 51);
– contributes to the legislative process through the enactment of laws or by exercizing his privilege to request a second reading of the law (Article 48);
– is vested with the power to dissolve the National Assembly (Article 50).
With regard to the judiciary, the President of Burkina Faso
– as guarantor of judicial independence, chairs the annual meeting of the High Council of the Judiciary (Article 131);
– appoints the President of the Constitutional Council and six of its members (Article 153); and
– exercises the right of pardon and has the sole right to grant amnesty (Article 54).
The President of Burkina Faso also shares powers with the Prime Minister. This is the requirement for the Prime Minister to counter-sign acts such as those concerning the exercise of self-regulatory power (Article 100), the delegation of legislative power (Article 99), and the management of international relations and defence, etc. For its part, the government has many powers to implement policy set by the President of Burkina Faso.
As can be seen, although the President of Burkina Faso does not wield executive power alone, he has been granted important functions that make him a real ‘monarch’, and this in an environment with relatively weak checks on government. Despite the autonomy or institutional independence they enjoy, the two other powers—the legislature and the judiciary—are not able effectively to counter the omnipotence of the executive.
With regard to the legislature, embodied by Parliament, it has fluctuated between bicameralism and unicameralism according to the whims of President Compaoré and his ruling coalition. The bicameral system, which was originally established in the Constitution, was abolished in 2002 and restored in 2012 following the reform of the Constitution. The latter provided for the establishment of a second chamber, namely the Senate (Article 78). Parliament, however, remained unicameral due to popular opposition to the creation of the Senate. This de facto unicameralism was finally endorsed in the constitutional revision of 5 November 2015, which abolished the Senate.
Members of Parliament are responsible for passing laws. They have the right to set taxes and monitor government action. In legislative matters, Parliament’s powers are to pass laws (Article 97), authorize and approve the ratification of international agreements (Article 149), and pass the budget (Article 103). With regard to monitoring government action, Parliament intervenes by
– requesting information from the government through oral or written questions, or questions on current issues; and
– imposing sanctions, by questioning the government’s responsibility through a vote of no confidence or a censure motion.
Monitoring of government action can also be done through parliamentary investigation commissions established to review the management of a public service or a national company.
In practice, the relationship between the executive and the legislature is heavily tilted in favour of the executive. In fact, the National Assembly does not play its role effectively enough. The reasons for this situation are, first of all, due to the excessive streamlining of procedures through which it can exercise its powers to vote or monitor government action. Consequently, almost all laws passed by Parliament originate from the government. Law reform is rare. Similarly, initiatives to monitor government action are often too accommodating of the executive. These initiatives are limited essentially to the use of information control mechanisms (oral or written questions, or questions on current issues) that enable it to obtain the information that the executive is interested in providing, but rarely to remedy executive malfunctioning, especially within the administrative set-up. As for parliamentary inquiries, in which Members of Parliament (‘MPs’) have greater powers, the majority use them very sparingly so as not to embarrass the executive. For its part, the parliamentary opposition, which could act as a ‘vigilant sentinel’ within the National Assembly, has been struggling to assert itself, given the parliamentary majority and strict parliamentary discipline that often exists within the majority party. In the 2012 and especially the 2015 legislative elections, a significant parliamentary opposition emerged, thus opening up better prospects. Finally, regarding the mechanisms that allow MPs to question government responsibility in Parliament (on motions of confidence and censure), their use is so strictly governed by the Constitution that they have never been exercised. Moreover, the strong discipline that prevails in a docile parliamentary majority and the weakness of the parliamentary opposition until 2012 ended up making government accountability before Parliament more theoretical than real.
Judicial power is vested in the courts of Burkina Faso. The Constitution enshrines them as the guardians of individual and collective freedoms (Article 125). The constitutional revision of 11 April 2000 abolished the Supreme Court and created three apex courts, namely the Court of Cassation, the Conseil d’Etat, and the Court of Accounts, plus the Constitutional Council. A Tribunal des Conflits was instituted by the constitutional reform of 2012 in order to resolve conflicts of jurisdiction between the various types of courts.
The judiciary is independent under Article 129 of the Constitution. As such, judges have security of tenure and other safeguards for their independence. This independence was strengthened by the constitutional revision of 5 November 2015. Although the President of Burkina Faso remains the guarantor of judicial independence, he no longer presides over the High Council of the Judiciary. Henceforth, the President of this judicial regulatory body is the First President of the Court of Cassation and the Vice-President is the first President of the Conseil d’Etat (Article 132). Nevertheless, in his capacity as guarantor of judicial independence, the President of Burkina Faso presides over a meeting of the HCJ in November each year to discuss issues relating to strengthening judicial independence. If necessary, an extraordinary meeting can also be held (Article 131).
The criminal liability of the President of Burkina Faso is decided upon by the High Court of Justice (Article 138). He is only liable for acts committed during his term and in the exercise of his presidential duties, in three cases:
– high treason;
– failure to uphold the Constitution; and
– misappropriation of public funds.
The High Court of Justice is competent to rule on the criminal liability of members of the government for crimes committed in the exercise of their duties (Article 76). The High Court of Justice, however, did not operate during the Compaoré regime from 1991 to 2014. It was not until the advent of the transitional parliament that this court was reactivated. Thus in the course of 2015, members of the transitional parliament voted to prosecute President Compaoré and several officials of his regime, who will be tried by the High Court of Justice.
Ultimately, the preponderance of presidential power led to a subordination of the other poles of power (legislative and judicial). This resulted in ineffective counter-powers which were necessary to moderate governance under the Compaoré regime. This was compounded by the existence of a hegemonic party that controlled the entire political playing field. As a result, Parliament did everything to avoid taking any action that would interfere in the decisions or choices of the executive. Judicial weakness, in particular, has often led to the opening of a Pandora’s Box. Rightly or wrongly, the judiciary is often accused of lacking independence, impartiality, and efficiency in the settlement of disputes. This is especially so in cases where one party has, by virtue of its position, the ability to mobilize resources or support within and outside the judiciary. The classical case is one in which the dignitaries of the regime, their families, or networks are involved. Political power is exercised through the Office of the Prosecutor, which decides whether or not to prosecute. If it fails to cover up the matter, it can arrange for the case to be investigated or tried by sympathetic magistrates whose political loyalty is assured. However the appointment of ‘safe judges’, the famous expression used by a Burkinabè Minister of Justice,4 is not the only explanation for the lack of courage among Burkinabè judges. The first is because under the Compaoré regime, the HCJ was largely under the influence of the executive, even for managing judges’ careers, because the majority of its members were ex-officio members or were appointed directly by the regime. The second is that in the political context of the time, judges had a singularly small margin of maneuverability in political matters, due to the vulnerability of their careers. There are still other real and objective difficulties. These include the difficult working conditions of magistrates, the severe shortage of equipment and other means, insufficient human resources, especially in the number of judges, and the direct and negative instructions they receive from the Ministry of Justice in the exercise of their duties. One of the biggest challenges of governance in Burkina Faso that the new authorities will face will undoubtedly be to restore trust between the judiciary and individuals.
Burkina Faso is a unitary state, not a federal one. As such, political and administrative power is principally organized on the basis of decentralization. The history of decentralization in Burkina Faso dates back to the colonial period, but it was in 1960 that the first local authorities appeared. However, their autonomy vis-à-vis the central government was still limited. The fall of the regime of the First Republic in 1966 and the political instability that ensued helped suspend the idea of decentralization and local development until the early 1990s. The Constitution of the Fourth Republic of 2 June 1991 enshrined the principle of territorial organization in local authorities and the free administration of the local government.
Burkina Faso now has a rich legislative and regulatory arsenal, if constantly changing, for the implementation of decentralization. The process of drafting a policy on decentralization was characterized by progress mindedness. In 1998 a series of laws were adopted to establish guidelines for implementing decentralization. These guidance documents were overhauled in 2004, with the adoption of a law creating a general code for local authorities. This law established regions, urban municipalities, and rural municipalities. To date, the country is structured around thirteen regions, forty-nine urban municipalities, two cities with special status (the political capital Ouagadougou and Bobo-Dioulasso, the economic capital), and 302 rural municipalities. Unlike other decentralized bodies, decentralized territorial authorities have legal personality and enjoy administrative and financial autonomy. They are freely self-administered by elected municipal or regional councils and have regulatory power for the exercise of powers transferred to them. Their funding comes from their own resources and budgetary allocations from the State, which funds their activities. Development partners, commonly known as donors, as well as decentralized cooperation with local governments in a number of Western countries, are also an important source of funding for local authorities in Burkina Faso.
On 1 March 2007 a strategic framework for implementing decentralization was adopted by decree, setting out the priority areas for implementing the decentralization process during the period 2006-2015. This strategic framework is based on five major points:
– social empowerment and political decentralization;
– the transfer of state skills and resources to local governments;
– building local capacity;
– supporting the drafting and implementation of local development plans; and
– the control and coordination of the decentralization process.
On the political front, local elections have been held regularly since 1995 without interruption. Democracy at the grassroots level was consolidated with the holding of the second municipal elections in 2000; the establishment of communes across the whole country and the holding of the third municipal elections in 2006; and finally, the holding of the fourth local elections, involving both legislative and municipal elections, on 2 December 2012. Although routine municipal elections suggest that decentralization has taken hold, the process is confronted with enormous difficulties: poor ownership of the very concept and problems faced by different role players, the infrastructure gap, and a shortage of equipment, inadequate human resources, and weak financial resources to support decentralization.
According to Afrobarometer surveys conducted in Burkina Faso in 2012, the vast majority of Burkinabè—nearly seven out of ten persons—have never contacted a local councilor regarding an important problem or to express an opinion on issues. Only a few (31 per cent) said they had contacted local officials at least once. In general, Burkinabè have confidence in their municipal councils and appreciate their local representatives taking time to listen. However, a majority of respondents argue that municipal councilors are more or less involved in corrupt activities. In fact in many towns, cases of corruption have hit the headlines, particularly with regard to housing development. This has led the central government to dismiss mayors or to protests by locals. Afrobarometer surveys also show that Burkinabè have a negative opinion of the performance of municipal councils in various domains. The areas in which most negative views exist are undoubtedly those relating to the maintenance of roads, local market places, health and hygiene standards in restaurants and maquis, municipal cleanliness, such as through rubbish collection, and the management of land use, particularly in urban areas. Generally, negative opinions towards the performance of elected officials are more pronounced in urban than rural areas. Despite these shortcomings in the management of local municipalities, the majority of Burkinabè seem satisfied with the manner in which the councils have served out their terms.
After more than twenty years of decentralization in Burkina Faso, there is a poor degree of citizenship at the grassroots level. The majority of people believe that most electoral accountability mechanisms are too ineffective to drive change at the grassroots level. In addition, most of them shun the management of local power structures, despite legislative mechanisms guaranteeing their full participation as citizens in the development of their community. In order to counter this citizen disengagement at the grassroots level, the different role players need to make additional efforts in order to instill a culture of responsible and participatory democracy at the local level. In other words, one of the major challenges for decentralization is to boost or enhance citizen participation in local government management. This is one of the conditions necessary for the decentralization process to succeed.
VI. Constitutional Adjudication
Constitutional adjudication is carried out by a dedicated court, the Constitutional Council, which was established by the constitutional reform of 11 April 2000. Its main functions are monitoring the constitutionality of laws, interpreting constitutional provisions, and managing litigation that emanates from national elections (Article 152). However, the Council does not have clear competence in the protection of fundamental rights; this distinguishes it from other African Constitutional Councils.
The composition and procedures of the Constitutional Council have evolved somewhat with successive constitutional revisions. Since the revision of 5 November 2015, Article 153 now provides for ten judges, including the President of the Constitutional Council, who is appointed by the President of Burkina Faso. The other nine members are made up as follows: three judges proposed by the Minister of Justice and appointed by the President of Burkina Faso; three experts appointed by the President of Burkina Faso, including at least one legal expert; and three experts appointed by the President of the National Assembly, including at least one legal expert. Members of the Constitutional Council are appointed for a single term of nine years. However, one-third of the judges are replaced every three years, under conditions provided by law, except for the President of the Constitutional Council. In the absence of constitutional or statutory provisions guaranteeing his security of tenure and independence, the latter may be removed at any time by the President of Burkina Faso. The First President of the Constitutional Council was, in the past, dismissed without cause by the President of Burkina Faso. This is a serious legal loophole that threatens the independence of the Constitutional Council.
Referral to the Constitutional Council has been progressively expanded; this is a major asset for the growth of constitutionalism. In addition to the highest personalities of the State (the President of Burkina Faso, the Prime Minister, and the President of the National Assembly), matters can also be referred to the Constitutional Council by at least one-tenth of the Members of Parliament (as opposed to one-fifth prior to the constitutional reform of 2012) and any interested citizen. This latest innovation—‘class action’—was introduced by the constitutional revision of 5 November 2015. Henceforth, ordinary citizens may bring matters before the Constitutional Council on the constitutionality of laws, either directly or by raising a plea of unconstitutionality in a court case involving them. That court must issue a stay of proceedings until the Constitutional Council has ruled on the question of constitutionality, which it must do within thirty days. Since 2012, the Constitutional Council has enjoyed wide powers of self-referral in all matters within its competence, and may invoke these powers if it deems it necessary.
Until the fall of the Compaoré regime on 31 October 2014, the Constitutional Council was unable to act with impartiality and objectivity. Under that regime, the legal system was used to serve the ruling elite. For twenty-seven years the regime ensured that the Constitutional Council remained void of all substance and that it was unable to act as a counterweight to the government. Indeed, no member of this body was independent vis-à-vis the ruling party. Judges were appointed on the basis of their allegiance to the regime. The consequence was that the decisions of the Constitutional Council were largely tainted by partisanship, whenever the case was political. Several cases illustrate this assertion. In 2005, the Constitutional Council approved the candidature of Blaise Compaoré for the presidential election, even though he had completed his two terms as head of state. The Council justified this decision on the principle of non-retroactivity of laws, arguing that the constitutional revision of 2000 (which restored presidential term limits and reduced them from seven to five years) had reset the timer to zero. An even greater illustration of the Constitutional Council’s lack of independence concerned two conflicting decisions in 2007 regarding a loan agreement between Burkina Faso and the Islamic Development Bank.5 The Prime Minister had approached the Constitutional Council to determine whether Burkina Faso, as a secular state, could engage in a transaction governed by Islamic law. The Constitutional Council said no at first, but took a contrary decision under pressure from the powers that were.
The Constitutional Council has therefore only made a moderate contribution to the entrenchment of constitutionalism in Burkina Faso, judging not only from the small number of decisions but also by their lack of boldness. Until recently, several political and institutional factors could explain this situation. In addition to an unfavourable political environment caused by the authoritarianism of the Compaoré regime, the following can also be listed: the failure of citizens to bring matters before the Council (until November 2015), a weak parliamentary opposition whose fragmentation and division prevented it from gathering the necessary votes prior to 2012, and the optional oversight of ordinary legislation, as well as few and complex challenges to the constitutionality of legislation.
However, since the popular uprising that ended President Compaoré’s rule, the Constitutional Council has been operating in a more favourable political and institutional environment. The right of referral has been extended to ordinary citizens and the Constitutional Council has rendered opinions and decisions that might be called daring. An example in this regard is the manner in which the Constitutional Council implemented the judgment of the ECOWAS Court of Justice of 13 July 2015 in the case of ‘—and others v. Burkina Faso’.6 In its judgments the Constitutional Council did not hesitate to invalidate the candidatures of a number of persons belonging to the former regime. They were declared ineligible to stand in the 2015 legislative and presidential elections for having supported the constitutional revision of October 2014 that triggered the popular uprising, although the ECOWAS Court of Justice had ordered the government of Burkina Faso to lift the restrictions that made them ineligible.
VII. International Law and Regional Integration
According to Article 151 of the Constitution, ‘duly ratified or approved treaties and agreements shall, upon publication, rank higher than laws, subject, for each agreement or treaty, to its implementation by the other party’. The Constitution itself is silent with regard to the hierarchy between the Constitution and treaties and agreements. It states, however, that if the Constitutional Council establishes a conflict between an international agreement and the Constitution, authorization to ratify or approve the agreement may only occur after the revision of the Constitution (Article 150).
The negotiation, conclusion, signature, and ratification of treaties and agreements are within the competence of the President of Burkina Faso under Article 148. However, ‘peace treaties, trade treaties, treaties that implicate State finances, those that modify legislative provisions and treaties relating to the status of persons can only be ratified or approved by virtue of a law. They take effect only after being ratified or approved’ (Article 149). In this regard, most treaties ratified by Parliament relate to funding, given the fact that the government of Burkina Faso is highly dependent on official development assistance. With regard to the transfer of sovereignty, Title XII, entitled African Unity, provides that ‘Burkina Faso may conclude agreements establishing associations or communities with any African State involving a total or partial surrender of sovereignty’ (Article 146). However, agreements that deal with ‘the entrance of Burkina Faso into a confederation, a federation or a union of African states are subject to approval by popular referendum’. For purposes of ratification, there is a division of powers between the President of Burkina Faso, Parliament, and the people.
All the constitutional provisions referred to above form the basis of an active policy of regional integration. In reality, this policy choice is essential for Burkina Faso, a landlocked Sahelian country sharing borders with six neighbouring countries and with few natural resources. Burkina Faso has made regional integration one of the engines of its economic and social development, especially because approximately half of its population is made up of immigrants. This has resulted in the signing and ratification of many agreements on regional integration. These agreements notably include the Economic and Monetary Union of West Africa (UEMOA) and the Economic Community of West African States (ECOWAS), the two most dynamic regional integration organizations in the sub-region.
In the area of international law, Burkina Faso has ratified most international human rights instruments. In general, within the framework of its cooperation with Western powers and international organizations, Burkina Faso tends to systematically accede to all international instruments relating to peace, development, democracy, human rights, etc. This activism could be explained by a desire for international legitimation, which may be achieved by offering diplomatic, political, and economic support. However, this does not mean that Burkina Faso’s adherence to international law reflects a genuine political will to implement the principles contained in international instruments. As a matter of fact, the ratification of these international legal instruments does not always translate into tangible effects. Burkina Faso has, for example, ratified the 2001 ECOWAS Protocol on Democracy and Good Governance and the 2007 African Charter on Democracy, Elections and Governance, which were subsequently incorporated into the preamble of the revised Constitution of 5 November 2015. Under the Compaoré regime, however, the principles laid down by these instruments were trampled upon by the government, as evidenced by the willingness of President Compaoré to remain in power by violating the principle of democratic change.
The government of Burkina Faso does not always have the capacity to internalize and uphold international human rights law. This can be seen in the human rights of women and children, for which the main international instruments have been ratified by Burkina Faso. With women, for example, much progress has been made with regard to access to political rights and basic social rights. The overall empowerment of women, however, has only been partially achieved. Politically, Parliament passed a law in 2009 imposing a 30 per cent quota for both sexes on electoral lists. The application of this law, however, has had limited effect to the extent that its implementation has not led to a significant increase in the number of women in decision-making positions or with political influence. With regard to the rights of the child, Burkina Faso is still struggling to eradicate child labour. It is also struggling to provide education for all. The weaknesses in the application of international instruments can be explained by several factors, including poor financial resources, persistent socio-cultural obstacles, mass illiteracy in a mainly rural population, and the lack of will among the ruling elite.
A constitutional analysis of Burkina Faso indicates an inexorable trend towards democratization of the political system. Burkina Faso has always struggled with democracy. It was here, in January 1966, that one of the first popular uprisings in a post-colonial African country took place. In the years that followed this insurrection, political parties and civil society organizations have fiercely resisted all attempts to limit political pluralism, as well as individual and collective rights and freedoms. There is, therefore, a democratic tradition that was certainly affected by the succession of military regimes but has remained a constant element in the political culture. Since the return to regular constitutionalism in 1991, progress and gains have been made with regard to constitutionalism and the rule of law. Survey data shows that Burkinabè prefer democracy to any other political regime. In fact, according to the Afrobarometer Network, the support for democracy among Burkinabè has remained high over the years. It has even significantly increased more recently, from 58 per cent in 2008 to 72 per cent in 2012 and 81 per cent in 2015. It is even higher than the average (73 per cent) of the sixteen African countries assessed in 2014. This significant evolution of democratic culture explains to some extent the popular insurrection of October 2014, an act which indicates a fierce determination to combat all forms of authoritarianism in Burkina Faso. The involvement of citizens, civil society organizations, the media, and democratic political parties to uphold values and principles is an important factor which is manifested by the systematic rejection of all attempts by the ruling elite to return to authoritarianism.
This public pressure can lead to qualitative changes in the consolidation of democratic institutions. It was already evident during the transition period (November 2014 to December 2015) that institutions such as Parliament, the government, and the Constitutional Council had intensified their efforts to adapt to social demands and to respond to the citizens’ demand for better governance. The popular uprising of 30 and 31 October 2014, which ended the rule of President Compaoré, has certainly opened up new possibilities in this area. The transitional government that followed thereafter, on 13 March 2015, set up a National Commission for Reconciliation and Reforms, one of whose tasks was to propose constitutional reforms. At the end of its work, the Commission submitted an initial draft constitution and proposed that it be turned into a draft and submitted to the people at the same time as the municipal elections in 2016. While waiting for the newly elected leaders to express an opinion on this issue, and in order to be on the safe side, the National Transitional Council undertook reforms of the current Constitution in the revision of 5 November 2015, which helped to consolidate constitutionalism in Burkina Faso. Nevertheless, the consolidation of democracy and the rule of law in Burkina Faso is a long process, sometimes strewn with obstacles, as all the forces of the old regime have not been completely disarmed. Even though the future of the young constitutional democracy is a promising one in view of the transformations undertaken since the popular uprising, this process remains uncertain.
1 In this regard, a number of factors should be mentioned, including internal pressure from opposition parties and civil society in Burkina Faso, and the imperative of democratic legitimacy for the Popular Front regime, which emerged from the bloody coup of 15 October 1987, and in which President Thomas Sankara was assassinated.
2 External factors were mainly the democratic requirements imposed by donors, and the collapse of the Communist bloc.
3 The first time was in 1997 (Law No. 002/97/ADP of 27 January 1997), the second in 2000 (Law No. 3-2000/AN of 11 April 2000), the third in 2002 (Law No. 1-2002/AN of 22 January 2002), the fourth in 2009 (Law No. 15-2009/AN of 30 April 2009), and the fifth and sixth times were in 2012 (Law No. 023-2012/AN of 18 May 2012 and Law No. 033-2012/AN of 11 June 2012). The seventh amendment occurred with Law No. 035-2013/AN of 12 November 2013 and the eighth with Law No. 072-2015/CNT of 5 November 2015.
4 This Minister of Justice admitted ‘appointing to positions of responsibility only judges who are beholden to him’. See L’Événement, No. 58, 25 December 2004 and No. 59, 10 January 2005, and L’Indépendant, No. 593, 18 January 2005.
5 On this question, see CGD, Avis et décisions du Conseil constitutionne (Opinions and decisions of the Constitutional Council, 2009).
6 2015-21/CC/EL of 25 August 2015 and 2015-26/CC/EPF of 10 September 2015.