By Ayisha Osori
Until the late 1980s, Liberia’s constitution was the only one in Africa to provide clarity for presidential term limits. Without these limits, political succession was a major source of instability on the continent, with many countries dominated by a single leader who insisted on his – and it was always him – indispensability. The end of their rule was invariably by force. In 35 years from 1961 to 1997, Africa witnessed 78 coups d’états.
But by 1995, at least 33 countries had revised their constitutions to include presidential term limits. The Organisation of African Unity (as it then was) built on this trend by developing a rule against coups and what it called “unconstitutional changes in government” with the recommendation that “any manipulation of the constitution aimed at preventing a democratic change of government” be outlawed. By the 2000s elections and term limits had replaced death and coup d’état as the most common way in which African presidents and prime ministers left office. Term limits were one effective way of curtailing the excesses of all-powerful executives and a tool that allowed for greater investment in the independence of critical democracy strengthening institutions such as the judiciary, legislature and election management bodies (EMBs).
Fast forward to 2021, and 16 countries across the continent have either revised their constitutions to remove term limits or seen the extension of the tenure of the incumbent president against the spirit of term limits. A further eight – Eritrea, Ethiopia, The Gambia, Lesotho, Libya, Morocco, Somalia and Eswatini – still have no term limits, whilst another nine countries, have term limits that exist in law, but that has yet to be tested or applied in practice.
According to academic Andreas Schedler, to qualify as democratic “elections must offer an effective choice of political authorities among a community of free and equal citizens”. He identifies seven conditions that should exist if regular elections are to fulfil the promise of effective democratic choice: empowerment, free supply, free demand, inclusion, insulation, integrity and irreversibility.
Empowerment and insulation speak to voters’ ability to vote freely without restrictions, fear or intimidation. In the January 2021 presidential elections in Uganda – where presidential term limits were removed in 2005 and age limits in 2017 – political violence linked to the election resulted in over 50 deaths, while more than 400 individuals have been forcibly ‘disappeared’ in a pre and post-election clampdown. In Guinea, after changing the constitution through a dubious referendum, President Conde contested and won, a third term in 2020 amidst sustained protests that saw at least 12 people killed.
Free supply, free demand and inclusion cover citizens ability to form, join and support opposition parties, candidates and their policies; and mitigate against candidates being prevented from participating in the elections through legal or pseudo-legal means. An increasingly common way of preventing candidates from participating in elections is the sponsorship system where presidential candidates are required to secure a minimum threshold endorsement of registered voters or elected representatives. This, along with high filing fees, effectively narrows the number who can contest.
Ahead of the 2020 presidential elections, Cote d’Ivoire’s election management body required that to be eligible candidates must secure the signatures of at least 1% of the electorate. This gave a significant advantage to the incumbent, Alassane Ouattara, who successfully secured a disputed third-term against reduced opposition. In addition to technical obstacles, more direct threats can be used by incumbents. Ahead of April’s presidential poll in Chad, the leading opponent to President Deby’s sixth term in office, Saleh Kebzabo, withdrew his candidacy after a deadly raid by security forces at the home of another opposition candidate.
The integrity factor relates to the election process, rules and execution. When EMBs or courts are perceived as compromised, the impact on the credibility of the electoral outcome is diminished. Like in Uganda in January, many voters in Congo Brazzaville cast their ballot on 21 March 2021 with continued doubts about the independence of the EMB given that nothing has changed since it oversaw a questionable outcome in 2016. An election that followed the 2015 removal of term limits, that gave President Sassou Nguesso the opportunity to seek a third term in his second spell in power. A fourth term is set to follow.
Finally, the irreversibility condition covers the sanctity of the result and winners taking office peacefully. Elections should have the desired consequences, where the will of the majority of voters is respected. In 2016, Yahya Jammeh tried, albeit unsuccessfully, to ignore and annul the results of the election, but the EMB, supported by regional powers, held firm to force him from office after two decades at the helm.
Those who argue against the imposition of term limits claim that they compromise the sovereignty of the people and their choice, as well as risk undermining the stability and continuity required for the development. They argue that instead of term limits, the focus should be on improving the integrity of elections. But a determination to stay in power predisposes leaders to oversee compromised polls. Presidents contesting for or having won, their sixth term in office in 2021 – Museveni in Uganda, Sassou-Nguesso in Congo Brazzaville and Deby in Chad – do not feel more secure. Instead, with each successive election the violence against the opposition, the rhetoric of intolerance and abuse from state security actors increases. As Schedler has argued, “the desire of those who manipulate elections is to enjoy the fruits of electoral legitimacy without running the risk of democratic uncertainty”.
But respect for term limits alone is not a vaccine against electoral authoritarianism. Niger’s historic transition in February affirmed its commitment, for the first time, to two-term limits, but the vote, which was won by the ruling party candidate amidst protests about the results and an internet shutdown, exposed the fragility of the country’s democracy. Despite adherence to term-limits in Tanzania, a change of the political party in power has not been forthcoming. In places where the ruling party never loses, there can be a systemic weakening of the checks and balances, and critical voices, required for a healthy democracy. Even in places where term-limits are in place and turnovers have occurred – Benin, Senegal and Nigeria – continued vigilance is required. There have been deep erosions to the independence of democracy strengthening institutions in recent years.
Innovative thinking is needed to tackle anti-democratic forces intent on capturing and controlling access to power whilst maintaining a veneer of electoral legitimacy. Africa still has more countries that have strengthened and upheld term limits than not. But constitutional power grabs are on the rise, particularly in West Africa, and the complicit silence of the Africa Union (AU), and regional bodies like ECOWAS, is a concern. In addition to considering the adoption of non-amendable presidential term limits, as has been proposed as part of Burkina Faso’s constitutional review, the AU should lead a collective review of the application of the non-retroactivity principle to constitutional amendments to make it explicit that leaders who oversee constitutional amendments cannot reset their tenures on that basis. The spirit of the principle is to prevent a retroactive application of punitive law and not to give sit tight men a window to legally hijack their countries.
Most importantly citizens must also be encouraged, and supported, through investments in organising and social movement-building to demand change. Afterall half of the dozen African leaders who have tried to evade limits over the past 15 years, were foiled by populations who rallied against these tenure extensions. Listening to, and learning from, the experiences of Burkina Faso, Malawi, Niger, Nigeria, Senegal and Zambia can offer valuable lessons.
Ayisha Osori is Executive Director of Open Society Initiative West Africa
Editor’s note: This is the fourth article in a nine-part series in which leading thinkers and practitioners explore key questions and themes about the current state of electoral democracy in Africa. You can click to read the fourth, third, second and first.