C. Genevieve Jenkins | Burkina Faso: Coup undermines constitution, regional and international law

18 September 2015 – Interim president Michael Kafando and interim prime minister Yacouba Isaac Zida were arrested by the Regiment of Presidential Security (“RSP”) as part of the military coup d’etat on 17 September 2015, just ahead of elections scheduled for next month. The interim leaders were reportedly being held hostage, along with the minister of housing and the minister of public administration, but Kafando and the ministers were released today. Zida, who used to be a high-ranking member of the RSP, remains under “house arrest.” International denunciations of the coup have been swift, and civilians are protesting the military takeover. Reports indicate that the military has been violently repressing public protests. At least 3 people are dead, and at least another 60 injured.

In the past year, Burkina Faso has undergone a series of political shifts. In October 2014, popular unrest culminating with protestors setting the parliament building on fire led to the ouster of leader Blaise Compaoré, who had held power for 27 years. Compaoré had attempted to change the Constitution to extend his time in office. After his removal, he fled to the Ivory Coast, where he has been living in exile since. Following his removal from office, an interim government was established until elections could take place.

Relations between the RSP and Compaoré’s supporters, on one side, and the interim government, on the other, had not been good. In February 2015, Zida attempted to reform the RSP. The RSP, in turn, attempted to force him to resign. And, in April 2015, the interim parliament passed a controversial law excluding from the political process all persons and political parties who had supported Compaoré’s effort to change the Constitution — effectively excluding all of Compaoré’s supporters. But in July 2015, the Economic Community of West African States (ECOWAS) Court of Justice determined that the law contravened international instruments that Burkina Faso had signed, including the ECOWAS Revised Treaty of 1993 (“Revised Treaty”), the ECOWAS Protocol on Democracy and Good Governance (“Democracy Protocol”), and the African Charter on Human and Peoples’ Rights, along with related UN instruments. The majority of individuals now running for office are linked with Compaoré’s regime.

The final conflict between the RSP and the interim government apparently came two days before the coup, when a government commission recommended dismantling the 1,200-strong RSP and redeploying RSP members elsewhere in the military. Given this background, some commentators believe the coup should not have come as a surprise.

The military leaders behind the coup have close ties to Compaoré. General Gilbert Diendere, formerly an aide to Compaoré, declared himself the head of the ruling authority established on 17 September 2015. Lieutenant-Colonel Mamadou Bamba made a televised announcement that the new “National Democratic Council” intends to hold elections soon, in which all persons will be entitled to vote. However, the coup’s leaders say elections scheduled for October 2015 are “too soon”. The coup leaders have enacted a night-time curfew and closed land and air borders.

Violation of the Constitution and Transitional Charter

The Constitution of Burkina Faso explicitly provides that power seized by coup is illegal, as “the source of all legitimacy follows from this Constitution” (Art. 167). It also provides that any violation of the Constitution is a “grave crime”. Only the National Assembly is constitutionally qualified to vote either the president or the prime minister out of office (Arts. 115, 139).

Under the Constitution, the Burkinabe are considered “electors” and “have the right to participate in the conduct of the affairs of the State and of society”. Universal and direct suffrage is guaranteed by the Constitution, and the President of Burkina Faso may only be elected by an absolute majority of the vote, although this was altered to allow for appointment of the transitional government. Those persons who have taken over the country by force do not hold power legitimately, based either on the Constitution or the Transitional Charter.

The Transitional Charter (signed 13 November 2014) was intended to complement the Constitution. It was drafted following Compaoré’s resignation, based on the need to fill the power vacuum left in his absence. The Charter was explicitly based on principles of reconciliation and inclusion. It provided that the interim president, appointed by a nomination college, was considered the president of Burkina Faso although his/her appointment was not by popular election. The interim president could not be someone affiliated with any political party, someone who had supported Compaoré’s proposed constitutional amendment, or someone who was an active or retired member of the military. The interim president was not eligible to run for elections at the end of the transition period.

The interim prime minister was to be appointmed by the interim president. The Charter also provided for a 90-person National Transition Council, no one of whom could have been openly supportive of Compaoré’s proposed constitutional amendment. Members of the transitional government were not eligible for the presidential and legislative elections planned for the end of the transition period, which the Charter limited to no more than 12 months.

So, those RSP leaders now in power have assumed that power illegally and in clear violation of Burkina Faso’s Constitution and Transitional Charter.

Violation of Regional and International Law

There is no question that this military coup d’etat against a legally installed interim government also violates regional, continental, and international law.

Regionally, Burkina Faso is party to the ECOWAS Revised Treaty and the ECOWAS Democracy Protocol. The Revised Treaty commits States to promote democratic governance, on pain of sanction. And the Democracy Protocol mandates that elections are to be free, fair and transparent, with “zero tolerance” for power that is grabbed unconstitutionally. The Protocol also makes it clear that military coups d’états are anathema; militaries are to be apolitical, non-partisan, and loyal to the State.

Burkina Faso has ratified many of the African Union treaties, including the African Charter on Human and Peoples’ Rights and the African Charter on Democracy, Elections and Governance. The duties in these treaties echo the ECOWAS provisions, and so the coup leaders have violated these international obligations too, both by their actions in supplanting the interim government and by the subsequent violent suppression of protests.

In 2000, the Member States of the Organization of African Unity (OAU), predecessor to the African Union (AU), expressed “grave concern about the resurgence of coup d’etat in Africa.” The OAU concluded that wherever such an unconstitutional change of government takes place by military coup d’etat, it should be immediately and publicly condemned, and that the OAU will not tolerate or recognize such illegal action. The OAU Decision goes on to provide that perpetrators of an unconstitutional change should be given 6 months to restore constitutional order, after which the unconstitutional government may be subject to sanctions.

The Deputy Chairman of the African Union condemned the coup on the same day it occurred. Based on the 2000 OAU Decision, it appears that the coup leaders will have 6 months during which they can restore the country to constitutional order.

The coup leaders’ actions also contravene a number of United Nations treaties that Burkina Faso is party to, most pertinently, the International Covenant on Civil and Political Rights. Depending on how the detained interim leaders have been treated, the coup leaders also risk running afoul of those regional and international agreements prohibiting torture or other cruel, inhuman or degrading treatment.

It is clear, then, that the RSP’s takeover of the Burkina Faso government is illegal. It contravenes the country’s Constitution and Transitional Charter, along with many provisions of regional, continental, and international instruments. The international community should continue to put pressure on the illegally installed government to ensure that the Burkinabe are able to vote in fair and free elections in October 2015.

Genevieve Jenkins

About Genevieve Jenkins

Genevieve is a Co-founder and the Director of Environmental Justice for the African Legal Centre. In addition to almost three years' legal experience at Latham & Watkins, Genevieve has worked as an intern for the Law, Environment and Development Centre of the School for Oriental and African Studies (University of London), a legal advisor to Lawyers for Human Rights (Environmental Rights Programme) in Johannesburg, and a foreign law clerk to Justice van der Westhuizen on the Constitutional Court of South Africa. Her academic writing has focused on climate change, constitutional environmental rights, and rule of law. She has an LL.M in Public International Law from Queen Mary College (University of London) and is a member of the California Bar.