African Jurisprudence
So far, my work at International IDEA has been fascinating. I am currently putting the finishing touches on a report about constitutional jurisdictions in West Africa. While discovering that my French writing skills are incredibly rusty, working on this report has enabled me to learn about several constitutions. As West African countries claimed their independences in the 20th Century, they built their constitutions on the British, French, and Portuguese legal systems. As such, their constitutions are built differently even though they all encompass democratic values. But what is truly striking is the emergence of a common jurisprudence on constitutional matters despite their various legal heritages.
For example, the Constitutional Council of Burkina Faso and the Constitutional Court of Benin have ruled similarly on cases involving political candidates’ eligibility to run for offices. Ultimately, both cases challenged whether the court and council had jurisdiction. Indeed, both constitutions enable specific groups of citizens to bring candidates’ eligibility cases for review before the tribunals. For instance, article 157 of the Constitution of Burkina Faso proposes a certain esotericism and only allows the president, prime minister, or presidents of the senate and of the assembly to seize the Council. But both jurisdictions found ways to enable ordinary citizens to challenge electoral matters before the tribunals, even though they inherited from different legal system. Benin built its democracy on the French model, while Burkina Faso was inspired by the Portuguese Constitution.
However, some jurisdictions interpret their constitutions in different ways on similar questions, which leads to disparities in the region. The Liberian Constitution (largely inspired by the American one), for example, states that “[n]o person shall be eligible to hold the office of President or Vice-President, unless that person is: . . . resident in the Republic ten years prior to his election, provided that the President and the Vice-President shall not come from the same County. » This seemingly straightforward provision became the source of intense debates before the 2011 presidential elections. Indeed, the two civil wars that devastated the country between 1989 and 2006 had forced many people to flee Liberia. Ellen Johnson Sirleaf, president of Liberia at the time and running for a second term, was one of the candidates accused of ineligibility because she had fled the country during the war. Interestingly though, the court found a way to use the word “residence” to allow the candidates to run for office.
The court also analyzed the constitutional text in light of what the country’s founders and drafters of the constitution of 1847 would have wanted. In sum, the court came to the conclusion that the founders could not have envisioned that the country would be ravaged by civil wars for almost fifteen years, and that individuals would have to flee for safety reasons. In the end, the court affirmed that the candidates in question were fit to run for office.
The Togolese court, however, came to a widely different conclusion on a similar case involving a candidate, Mr. Olympio, for the 2003 presidential elections. While the Liberian court interpreted the “letter and spirit” of the Constitution, the Togolese court centered its analysis solely on the letter of its Constitution. Article 62 of the Togolese Constitution states that any candidate to a presidential election must have resided at least twelve months on the national soil in order to be an eligible candidate. Mr. Olympio had not, and the court found him ineligible. But the court unfortunately did not to take into account the fact that Mr. Olympio had been victim of an attack while he was campaigning in the North of the country. This attack is widely believed to have been orchestrated by his main opponent, the then Togolese president. After spending several months in the hospital, Mr. Olympio stopped residing in the country permanently for safety reasons before the elections.
Therefore, both countries were confronted to similar situations involving similar constitutional provisions, and ended up with different results. But in general, the traditional distinctions between common law and civil law countries are shrinking within the legal space of ECOWAS. Hopefully, more and more jurisdictions in West Africa will follow Benin’s, Burkina Faso’s, and Liberia’s lead in advocating a rule of law that emanates from the general will of the people.