After a Coup, Can the Constitutional Order Be Repaired? Adem Abebe on Rebuilding Constitutions in West Africa

As democracy promoters, we also need to pay a lot of attention to the material needs of people... When these material needs are not satisfied, people will be more willing to give nondemocratic forms a chance.

Adem Abebe

This episode was made in partnership with the Constitution Building Programme at International IDEA

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Adem Abebe is a senior advisor on constitution-building processes at International IDEA. He supports transitions from conflict and authoritarianism to peace and democracy, generates cutting edge knowledge, convenes platforms for dialogue and advocates for change. Adem is also Vice President of the African Network of Constitutional Lawyers, which promotes democratic constitutionalism across the continent.

Key Highlights

• Introduction - 0:20
• Why Military Coups Happen - 4:05
• Holding Back Political Institutions - 19:23
• Restoring Constitutional Order - 34:31
• The Role of Constitutions - 48:54

Key Links

Follow Adem Abebe on X @AdamAbebe

Learn more about International IDEA

Learn about the Constitution-Building Programme at International IDEA at Constitutionnet.org

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Transcript

Over the past few years Africa has seen a rise in successful military coups. We discussed the phenomenon on a past episode with Naunihal Singh. However, in that conversation we did not explore what happens to restore political order afterwards. What does happen is international actors from the African Union and ECOWAS to intergovernmental organizations like International IDEA must decide in what ways they will help to restore constitutional order again.

Recently, we saw how those efforts can go astray. Burkina Faso, Mali, and Niger are withdrawing from the Economic Community of West African States known as ECOWAS. All three countries are governed under military juntas after very recent military coups. It highlights the delicate need to balance engagement with the necessity to establish political norms in the region.

Last week we focused on the repair of a constitutional order after an episode of democratic backsliding. This week we discuss the repair of the constitutional order after it is shattered by military intervention. Adem Abebe is a senior advisor on constitution-building processes at International IDEA. I first came to know Adem through his work as a constitutional scholar. He was a coeditor alongside Rosalind Dixon and Tom Ginsburg of a volume called Comparative Constitutional Law in Africa. So, I found him insightful because he was able to blend practical experience within a bigger picture understanding of the larger issues.

Our conversation explores coups from several perspectives. We consider why coups happen, but also how we move past a constitutional breakdown to restore democracy and constitutional order. The answers are complicated, but help us better understand democracy including why it breaks down and what it means to restore it once again.

This is the third of a series of podcasts on issues relating to constitutional change which is part of a partnership with the Constitution Building Programme at International IDEA. IDEA is an intergovernmental organization that supports democracy worldwide and the constitutions program conducts research and supports countries in strengthening democratic constitutions around the world. You can find more information at www.idea.int, the link is also in the show notes.

The podcast is also sponsored by the Kellogg Institute for International Studies, part of the Keough School of Global Affairs at the University of Notre Dame. The Kellogg Institute was founded by Guillermo O’Donnell, one of the giants of democratic thought, more than 40 years ago. It continues to sponsor research on democracy and human development. Check them out at Kellogg.nd.edu. You’ll find a link in the show notes to their website. If you’re interested in becoming a sponsor of the podcast, please send me an email to jkempf@democracyparadox.com.

But for now… this is my conversation with Adem Abebe…

jmk

Adem Abebe, welcome to the Democracy Paradox.

Adem Abebe

Thank you very much, Justin, for having me.

jmk

Well, Adem, a lot has been going on in Africa, especially within Western Africa in recent years with all of the recent coups occurring and just constitutional breakdowns when you think about it. One case that was particularly disturbing was in Niger. I think it provides a good example to start out to just paint a picture of what's actually happening in Africa right now and it's disturbing, because it felt like that was a country that was really at a democratic turning point in a lot of ways. It still wasn't considered entirely democratic. It still had a lot of flaws. It was a very flawed democracy But it had shown some real democratic progress with its first peaceful transfer of power in the 2021 elections. So why did the military end up seizing power from civilian rule just last year?

Adem Abebe

Well, I think that the fall of Niger, if we can call it that, was depressing indeed. As you say, if you look at it in isolation, in terms of democratic progress for the first time in its independence history, it has witnessed a relatively peaceful transfer of power following relatively competitive elections. The candidate of the incumbent party won, but he had to go for a second round and the party didn't win a majority in the parliament. It was a relatively competitive election. Then on top of that, in Niger in particular, the military has historically, especially in the past two decades, been seen as a democratizing force.

In 2009-10, there was an incumbent that organized a self-coup, President Tandja, who banned the parliament, who banned the constitutional court and the military intervened, stopped him and enabled the designing of what is one of the most progressive constitutions in Francophone Africa. So, if you look at these factors, you would think the chances of a coup were lower. At the same time, there were also some fragilities. Part of it in particular was with the fact that Bazoum was not seen as a legitimate candidate. So even though he won the elections, it was mainly through the incumbency advantage that came with the party that he represented. But otherwise, because he came from a minority group in Niger, he was not seen as a legitimate leader.

So, in a way, you have elections that are critical for legitimacy, but are not sufficient in a context like Niger where identities and social relationships are critical. Because of this, there was actually an attempted coup two days before Bazoum was sworn in. Quite interestingly, the general that ultimately removed Bazoum was the one who disrupted that coup at that particular moment. But that coup attempt had already created jitters. Because Bazoum felt like there were threats around, he started to think about reshuffling some of the security sector actors including potentially removing general Tchiani. So, you have this lack of legitimacy despite the electoral win and an attempt to reshuffle the security sector that created a personal interest in the army to intervene.

But if you see it in isolation, I think despite the fragilities, the chances of a coup were lower, but what increases the chances is when you bring in the regional context where we've had coups in the past few years in Mali and actually if you count Sudan already, there was one, and then you had Mali, and then Chad and Burkina Faso and all the militaries in these places have managed to occupy power and resist pressure from African and regional international actors to give up power. So, what I think flipped the chance was with the regional context. Otherwise, as you said, according to the Global State of Democracy, the International Institute for Democracy and Electoral Support outlines, Niger was showing a steady but stable progress in terms of key democracy indicators.

jmk

I find it interesting that you said the military was seen by many as a democratizing force because we normally don't think of the military as being democratic or anti-democratic. We think of it in more established democracies as just being a neutral force. What does the military in a lot of these West African countries, whether they're experiencing coups or whether they're not experiencing coups, what does it see as their role within the government? I mean, does it see its role as being fundamentally political?

Adem Abebe

Well, it's obviously, it's very difficult to have a single story about military civilian relations in different countries. But in general, I think it goes two ways. One is that incumbent leaders tend to rely on the military to maintain the regime and so rigid maintenance is very critical and for that you need the support of the military. The military also then uses that as leverage to secure its place, its role and benefits from the system.

So, it goes both ways and unfortunately, I think in a context where politics has not become properly democratized, where the security sector is often called in to settle political disputes, it's very difficult to withdraw the military from the political sphere. It's very complex, but there is a sort of dependence, mutual dependence, between military and incumbent leaders. That is a consequence of the torn transition into a more democratic framework where the military is seen as a protector of the state rather than the protector of a particular region.

jmk

I can't help but think that the geopolitical environment is partly responsible for this, because there's been such an emphasis within the Sahel and even within wider parts of the northern and even western Africa to be fighting against jihadists and fighting against insurgents in a lot of these countries. It just makes me think that maybe Western powers are spending too much time building the capacity and institutionalizing the military and security forces without spending enough time focusing on the institutionalization of more civilian political institutions, such as legislatures, elections, and so on. Is that part of the problem here? The fact that the military is overinstitutionalized and other institutions, political institutions are underinstitutionalized?

Adem Abebe

That's indeed an important consideration. As you may know, 9/11, there was a securitization of bilateral and multilateral relations, and particularly in the Sahel. Especially after what happened in Libya in 2011, that kind of unleashed large numbers of arms and sent soldiers, mercenaries from across the Sahara, who were essentially dispersed. That added to the security dilemmas there, including from fundamentalist religious groups. So, the relationship between Western nations and some of these African countries had a security element at its core.

All of that means, in terms of trading, in terms of allocation of resources, the military had prioritization. At the same time, I think it's very important to also note that there was support for other aspects of the democratic process in terms of supporting parliament, in terms of supporting political parties and electoral processes, all of that. But I think you are right to say that the accent was indeed on the military security aspect of the relationship and that gives the military the authority, the legitimacy and the networks that provide opportunity for ambitious elements to make the leap when the opportunity arises.

jmk

Going back to the situation in Niger, you described a very complex situation and one where the military has intervened at times to both secure democracy and at other times to undermine democracy. Should we be treating all military coups the same? Are some coup leaders more likely to even facilitate a transition back to democracy than maybe other efforts who undermine the constitutional order?

Adem Abebe

Well, I think it's an important question. The fact is the issues that policymakers at the African Union level, at the ECOWAS level, and of course, intellectuals in Africa are constantly grappling with are all the same. The general agreement is that at one level coups must be rejected as mechanisms of circulation of power. I think circulation of power is critical, but that should happen through democratic elections, through term limits and others. So at one level, I think they should be treated the same in the sense that they should not be accepted. But then there's a second level, which is also quite important, and that is that, as you said, including in Niger, empirically some coups have essentially triggered the transition. They had accelerated the transition or prevented an individual from taking over.

The second and related point is that when you respond to coups, it's very important to understand the nuances. In that sense, I think what is important is the tendency is to look at the normative frameworks as anti-coup rather than pro-constitutionalism. So, if you look at it in a backward-looking, anti-coup standard, then you will be rejecting them, sanctioning them, and not engaging them, rather than actually identifying the broader factors that led to coups and addressing them.

In that sense, I think International IDEA where I work, for instance, works in a very innovative arrangement with the Dutch Ministry of Foreign Affairs, where we use the social contract approach in analyzing post-coup places like Niger and also defining our responses. We try to look at coups as symptoms of a fundamental problem, a breakdown of the social contract, and that informs some of our interventions. So, we must have a red line, a bright red line, to say no to coups. At the same time, once they happen, it's important to have more nuance in trying to figure out the best way of engaging them and I think understanding our normative frameworks as a constitutionalism promoting framework can be helpful.

jmk

It sounds like most coups begin before the military even becomes involved because the constitutional breakdown, the symptoms that lead to the coup, already exist before the military decides to take action. Of course, there's going to be exceptions out there where you have leaders who step in, even though the constitutional system might be functioning perfectly well, and just want to seize power. But it sounds like most of the time when the military steps in, there's already deep systemic problems and constitutional breakdowns that are occurring. So really, even though the coup begins when the military becomes involved, there's almost like a pre-coup that exists that creates the environment to almost encourage it to happen. Am I understanding that right?

Adem Abebe

So, the pre-coup factors might be distinct in different places. For instance, in Mali, some scholars describe the military as the most organized trade union and so the military felt like they were not provided the support and the resources and the training to tackle an insurgency that was essentially pushing the army out of large parts of the country. There was a lot of frustration in terms of the corporate interests of the army and the rebels were taking over large parts of the country and all. So, you have this context where the security situation has deteriorated to a level where military intervention is seen as necessary. It's not seen as undermining democracy, but as a necessary way to tackle an impending insurgency.

In other places like Guinea-Conakry, for instance, you have a president that has been there who was historically an opposition leader and who had opposed third terms. But he comes to power, serves his 10 years and then he thinks I should be here. If I'm not here whatever I have built is going to collapse. Then the military removes him after he organized a fake referendum in elections to stay in power.

So, you have a difference, indeed, where pre-coup elements provide the justification for the military to intervene. So, you are accurate in saying that the military does not come out of the blue. There are background contexts that make military interventions more likely than in other places. So, if you look at the broader political situation, economic situation, in terms of a massive youth bulge, high levels of urbanization, partly because of conflict, but partly also because of climate change and then, of course, a slowing economy.

These are factors that are valid across Africa for why coups have been concentrated in that part of the world and provides the explanation to the question that you raised. There are background contexts that are exacerbated by this general context that then provides the military a justification. Especially if you look at the first coups, they have their own internal reasons and just like democracy, the more coups happen, the more likely they are to have this neighborhood effect. If you look at Niger, the domino effect, was perhaps a stronger explanatory factor. But if you look at Mali, for instance, or Guinea-Conakry, there were really strong factors that made the possibility of military intervention very likely.

jmk

And the domino effect doesn't just happen to countries within the region, like neighboring countries. It can happen within the same country, like in Burkina Faso where we've had two coups within a period of 12 months.

Adem Abebe

That's right.

jmk

I mean, coups can happen even within the same country over and over again, once that cycle has kind of started.

Adem Abebe

Yes, the biggest predictor, essentially, of a coup happening is whether the country has experienced a coup before, especially a successful coup. You are accurate in saying that.

jmk

So, while there might be conditions within a country that make a coup more likely to happen, that give the military some kind of justification for them stepping in, it does seem that it would be very easy for military leaders to pull the trigger to start a coup d'etat early rather than allowing the civilian leaders to work those problems out. Because if civilian leaders get the chance to be able to actually successfully work through those problems, that would actually allow those institutions that exist, those democratic institutions or just political institutions, to strengthen so that when they see those problems again in the future, they've got a roadmap and that they're able to work through those problems even more easily.

If you have the military step in as a deus ex machina, that just steps in every single time that there's a problem, it never gives those institutions a chance to be able to gain strength, gain legitimacy, and learn how to work through some of those problems. So, while it sounds like we're kind of justifying military leaders or giving them a little bit of a pass for getting involved, at the same time, those military leaders oftentimes are stepping in too early or not even allowing the civilian leaders to solve the problems themselves and essentially creating the environment that almost encourages a coup once we see problems happen again in the future, because the civilian government never learns how to solve those deeper systemic problems.

Adem Abebe

That's right. If you look at the records, the good coups, if there is anything like that, are the exceptions. A coup happens back in 2010 in Niger and the military then enables a transition, but these are the exceptions in reality, because coups are not just bad for democracy, they don't just disrupt a more organic process of political development, but they undermine the economy. They undermine the capacity of the state. They're bad. There was a recent study by the UNDP looking at the economic cost of coups and it's staggering. There's no question, as we tried to cover earlier, coups should be rejected. They are bad for democracy. They're bad for the state capacity. They're bad for the economy and, of course, they're bad for stability as well.

If you look at Mali or Burkina Faso and even Niger, levels of insecurity, the levels of popular desperation and humanitarian needs have actually accelerated. They have become much, much worse. So, the point that I was trying to make was that as a red line, they should be rejected. But once they are there, once they are there, I think they are a reality and we have to try and figure out how best to understand coups as manifestations of a more fundamental problem and, and perhaps as the Dutch and International IDEA are trying to do, approach it from a broader systemic approach in terms of how to address the problems of the social contract that lead to illegitimate governments or governments lacking legitimacy that then provide a justification for actors like the military to disrupt that more organic, but slower and more certain process of political development.

jmk

So, let's think about these problems as constitutional problems. I know that it's natural to link constitutions and democracy together, but let's just think of it in terms of an issue with how the constitutional order is constructed. Is the problem that exists within these countries embedded within their constitutional design or is it a problem with the execution of that design? Do we put the blame on how the leaders are governing or is the issue with how we design the system under which they're expected to govern?

Adem Abebe

Well, I think they are very interrelated. Perhaps going backwards a bit may help. When most African countries became independent, they had to adopt constitutions. But the context within which constitutions were adopted were very different in a lot of places, whether it's the US or France, the state was already there. The purpose of the constitution often is in organizing the government in enabling it and as necessary, also constraining it. In most of Africa, the constitutions have this extreme burden of not only organizing the government and constraining it, but building the state itself, building a more encompassing social political identity. The burden is extremely high on African constitutions. As James Madison said, the first purpose of a constitution is to enable the government and then to constrain.

But in our sense, the purpose of the constitution starts even earlier in building the society, building the state capacity. All of that often leads to a very, very powerful executive formally, but even more so in practice. Unfortunately, the empowered executives have been powerful enough to oppress the opposition and all, but that has not simultaneously led to a more capable state that is able to provide security, that is able to provide basic services to its population. So, in a way, an original fundamental challenge of constitutions is in the context of states that had very little history of being a state and even less generating a nation of some sort of acceptable racial political community. That's why there's a much higher burden on constitutions.

But there's a second layer that you spoke about, which is a problem of constitutionalism, because executives have been very powerful, partly as a result of a constitutional artifact. Because they have been very, very powerful, they have created powerful entities that they have not been able to control. So, there has been a lot of progress. We must say it's a very big continent. In countries like Ghana, countries like Kenya, Senegal, they have made a lot of progress and they have been resilient to some of the pressures that their democratic systems have been facing. But at the fundamental level in a lot of African countries, constitutions still have that burden that I think would have been very difficult in any place.

So, yes, there is partly a question of constitutional design in terms of creating the monstrous executive that is often personalized. But at the same time, there have also been problems, of course, also training the government. It's a combination of essentially the burden that constitutions have to bear, but also the fact that they have empowered executives vis a vis other actors, including vis a vis society at large, and also the inability of key institutions to keep the executive in check in particular.

jmk

So, when we see a military coup happen, I just imagine that that's a complete disruption of the constitutional order because the African Union has been very vocal that they want to create an anti-coup norm. There really isn't a pathway for the military to intervene within constitutions within African governments. And yet, that's exactly what has happened. So, the entire constitutional framework, the entire constitutional order, it's just fundamentally broken when there's a military coup. So, do those military leaders, once they have a successful coup d'etat, are they looking to repair that constitutional order? Are they looking to legitimize themselves? Are they looking to find a pathway to a transition so that they can establish legitimate government again? How do they get from this moment of complete constitutional rupture back to something that is legally considered more legitimate within a constitutional framework once again?

Adem Abebe

So, if you look at the rhetoric, the big differences between military leaders pre-1990 and military leaders today is that pre-1990 the military intervenes to capture power. They want to control power and stay and lead the government. Today at the rhetorical level at least they come in and say they have removed the elected government because of security challenges, because of governance and corruption. They immediately proclaim commitment to ideals of rule of law, of democracy, of constitutionalism and, in fact, one of the first processes they initiate is a constitution making process and they try to look at some of the gaps in the constitution and engage the people coming up with a new, more appropriate, more resilient constitutional framework.

So, in that sense, they accept that they are there to enable a transition, but of course, not all military regimes are the same as we discussed. Increasingly, especially if you look at the military leadership in Mali and in Burkina Faso, they seem more ideological. So, they don't seem to accept that, for instance, the military should be under civilian control or that the military should be depoliticized. Some of these military leaders are challenging the consensus, at least at the liberal level, but also generally at the African and subregional levels, in terms of the relationship that must be there between soldiers and civilian leaders. But overall, often the disagreement between these military leaders and the African Union and ECOWAS and other subregional governments is on the role of the military during the transition.

There's often an acceptance, even in Mali, even in Burkina Faso, that they are there to enable a transition, but particularly where there's insurgencies, they want to be given more time to tackle it. So, they say we need to prioritize securing the country. You need a country before you can have a democracy. That is the thinking. I think some of the military leaders are more ideological in the sense that they challenge some of the accepted wisdom around the relationship, at least at the constitutional level between civilian and military authorities. But at a higher level, at least at the rhetorical level, they accept that they are a transitional force. How long should they be there and what should be the nature of the transition and whether they should have a role post-transition as military, as individuals, that is where the differences are.

It's important to note that these are not coup leaders of the pre-1990 period where they come and say we are here. We have disposed a bad government. We're going to build a good government. They really accept, at least at the rhetorical level, that they are transitional actors and sometimes I think using that rhetoric to help them navigate more effectively the transitional processes in a manner that strengthens the civilian political authorities rather than weakens them is the challenge.

jmk

So, if you come in with a real politic framework, that kind of mindset, this sounds kind of positive. It sounds like there was a military coup and that was bad, but it sounds like they're going to come out of this situation in a much stronger position and something that might even be a stronger democracy. The dark side to this is what we saw happen in Sudan where we saw the people rise up. We saw them say that they wanted to have a democracy and the military hold on to power for so long through that transitionary process that it ended up producing a civil war within the country because they never let go and two different security forces ended up fighting against each other for control of the country.

They might say that they're doing everything for the best. That they're trying to establish certain things and establish security and try to make sure that the process goes smoothly. But if they hold on to power too long, the entire security arrangement might break down. I mean, extraordinarily bad consequences can come out of overextending that transitional period. We've seen that happen in different countries. Sudan's probably the worst-case scenario I can imagine.

Adem Abebe

That's right. Justin, I think I want to make it very, very clear that I'm not trying to paint a better picture of military regimes. They are bad, not just for democracy, but they are bad for security. They are bad for the capacity of the state and they're bad for social economic development. So, on all indicators, they perform much worse than the regimes they remove - often even dictatorial regimes. That's very important. So, in some cases, like the military in Sudan, they have not just political interests, but they have significant control over the economic life of the nation. That increases the stakes for the military to stay and fight and secure a more robust role in politics than constitutions traditionally would allow. I think the main point really is that what the military regime says is not without merit.

What we should do then is reduce those factors and engage in a process where we proactively try to identify in advance some of the weaknesses, the fragilities, in the social contract in the country, in terms of the manner in which politics is zero sum, where the politics becomes winner takes all. If we identify those factors and then the African Union and ECOWAS and other actors try to do it, of course, I think we need to learn to do it better, which is to have an early warning, but also early action mechanism to identify in advance and invest in strengthening fragile, but still acceptable democratic frameworks. Whenever there is a coup, whenever there's insecurity, there is priority from donors and international partners.

But I think it's very important to start investing early, supporting nations that may seem like they are doing well where they may not need it, but they actually require a lot of democracy strengthening. We need a lot of analysis, assessment of some of the weaknesses and then building on them. What happened in Niger in 2010 and in Mali in the early 1990s where the military comes in as the good guys is actually the exception that proves the rule, which is that the military could often lead to worse democratic records, worse economic performance and often worse human rights and security performers.

jmk

So, when these military regimes begin to write these constitutions, we immediately imagine that they're democratic constitutions. Do some of these military regimes look to create more autocratic constitutions or incorporate more autocratic features into these constitutions? How often does that happen? What does that look like?

Adem Abebe

Well, when they come in, as we said, at the rhetorical level, they stay committed to democracy and all of that. But in general, it's very difficult to say post-military constitutions are more authoritarian than let's say post-authoritarian constitutions. But if you look at a place like Mali, where there is an ideology behind the military takeover, they could lead to more personalized, less constrained executives. There's a tendency to look at politics in a military lens, which is that there's an emergency of terrible economic situations, terrible security situations and all those emergencies require a more centralized, more powerful executive that can excavate the country out of that situation.

So, what I'm trying to say is that often what determines the character of the constitution that comes from post-military regimes is the ideology of the military leadership. That unfortunately is not knowable in advance. We can only characterize the military, the style, ideology and way of governance of these leaders after the fact. So, you might say in general, they became good guys, but we could not have known that they would be good guys when they actually overthrew the government that is the challenge.

But I think in terms of defining the character of the constitution, if you look at the constitution that was approved in a referendum in Mali and compare it with the constitution that was approved in Chad, they're very different in their nature. The constitution in Chad is acceptable. It could do. It could do well. Whereas the constitution in Mali concentrates a lot of the power in the presidency and the difference is explained primarily by the ideological drive of the military leadership in Mali compared to the less ideological, more pragmatic leadership of the military in Chad.

jmk

So, what I'm hearing is a more democratic constitution is going to try to disperse power throughout different institutions and different individuals, whereas a more autocratic constitution may have some democratic elements, but we'll likely concentrate power within the executive so that a personalistic leader can really dominate the government and control the decision-making process on their own. That's really the defining feature between a constitution that we'd see as potentially much more autocratic as opposed to more democratic. It's not just the presence of elections. It's not just the presence of the legislature. It's how much power is concentrated into single individuals.

Adem Abebe

That's right. I think at this level, even military leaders will not abolish elections. I think that has become ubiquitous in the African Union and ECOWAS and the public most importantly in these countries will not accept a system that doesn't involve elections. I think if you look at the Afrobarometer outcomes, popular sentiment, Africans have consistently supported democratic processes over military regimes. But unfortunately, the supply has been wanting. So, you have democrats that are extremely dissatisfied and that's partly why you see in some places like Mali and Niger, Burkina Faso, when the military governments remove an incumbent, a lot of people actually applaud that process. So, there is that trait that dissatisfied democrats may start seeing possibilities, may start essentially despairing in democratic elected governments, or at least not supporting them actively.

So, you are right. The measure of autocracy is beyond elections. I think there will be elections everywhere, but whether a certain constitution would lead to more autocratic outcomes or not depends on how power is dispersed, both at the central level, but also horizontally, vertically and to what extent would the executive have control on what is supposed to be a political bureaucracy, to what extent will courts and fourth branch institutions have some control. Essentially, the manner in which power is dispersed is a more important predictor than elections, because I think elections are now unavoidable. Even for the hardest military regimes, elections are a basic minimum.

jmk

So, when you make the decision, when International Idea and other organizations make the decision to start cooperating with coup leaders on writing a new constitution, on the constitutional transitional process, do you ever worry that you're legitimizing those coup leaders? Are you concerned that you're legitimating what they did? Especially in a case like Niger where there was a real effort to try to do everything possible to not legitimize the coup and to try to hope that the president would be restored to power. At what point do you decide that it's a lost cause and that you need to just work with those people? And even at that point, is there just a feeling that you've given up and that you're legitimating those who took power extra constitutionally?

Adem Abebe

I think it's important to look at this at different levels from the perspective of the African Union and regional organizations like ECOWAS, the Economic Community of West African States. Disengagement is not an option. There are normative regional institutional frameworks that require them to work with the military government to enable a transition to a constitutional order. So, from their perspective, they have to engage. So, even when they suspend you, even when they sanction some of the leadership, engagement is not a choice. Of course, there's that tension. You're punishing them, but at the same time, you have to talk to them. That creates tensions. That make the engagement very, very complicated. This is what we've seen in Mali and in Niger, but in all the places that have undergone coups.

But for organizations like International Idea, the United Nations, we of course support the African Union. We support ECOWAS in their engagements with military leaders in terms of defining the nature of the transition, in terms of defining the process of culture making, and all of that. But at the same time, wherever there is interest from these regimes or for the added value of comparative knowledge, comparative insights, we tend to engage. But at the same time, I think what is important is to be cautious. You have to constantly be assessing whether you are being instrumentalized to legitimize a particular way of thinking or a particular personal regime and you have to make that judgment. It's a very difficult one. But you have to make that constant assessment and judgment.

That's why, for instance, at IDEA, we have what we call an adaptive management system where we're constantly making political analysis, political economic analysis, and adjusting our interventions. I think the arrangement between the Dutch Ministry of Foreign Affairs and IDEA where we have a very flexible financing system where we go in and support only when we think there is one political will and true added value of comparative insights, do we engage. So, yes, engagement is very tricky. We have to be careful and there are moments where we have to say no, but I think as a matter of principle, we prefer to engage. Now as I said, especially for organizations like ECOWAS and the African Union, it's just not an option because there are normative frameworks that require them to engage, even when they have been suspending and then sanctioning the military regimes.

That's what I think is maybe another level. The popular support that some of these leaders enjoy often is more a rejection of the removed regime rather than support for the military regime. That's why after a few months, you see the military getting the jitters and they start engaging in the oppressive tactics of regimes that they have removed. At the same time, I think the popular acceptance of the removal of a regime should tell international actors something.

So, we should avoid insistence on reinstatement of removed regions. If people are happy that a person has been removed, then to insist that the person be reinstated, one creates a very, very difficult relationship with the military regime. It just makes it very difficult to work with them. But secondly, empirically, it rarely happens anyway. So, I think that the priority should not be on reinstating them, but in getting genuine commitments from military regimes that, one, there will be a transition and, two, that transitions will be more inclusive as they go.

jmk

One of the problems that we see with democracy - and this isn't exclusive to West Africa, it's not exclusive to Africa, I mean, we see it all over the world in democracies in every region - is the problem is often not the fact that the constitution doesn't have democratic elements. It's that the leaders don't follow those democratic elements of the constitution. They find ways to work around them. They find ways to circumvent them and sometimes even when they're creating these new constitutions, they never intend to actually follow those democratic aspects. Is it helpful still to be able to create constitutions with those democratic elements even if we suspect those current leaders might be operating in bad faith, that they might not intend to follow them, that they might intend to violate certain aspects of those constitutions?

Adem Abebe

So, in the late 1980s, a very famous Indian scholar described what he called constitutions without constitutionalism. He said it was a fundamental problem of the time. I think that description more aptly describes what is happening today, because I think at the formal level, the constitutional frameworks may have changed, but at the substantive level, not much has changed. Even in places where access to power has been democratized, where elections happen and the nature of power and the exercise of power have not fundamentally changed. So, you have places like Ghana that has now seen several repeated alternations of power, partly because of term limits, but partly because incumbents have actually lost, the nature of power still remains extremely zero-sum, extremely winner take all. The president still has a lot of power.

It's partly, because these are legal creations. These are not aberrations. It's a legal system at the constitutional and sub constitutional level that creates this really, really powerful executive. So, whoever comes in then gets a lot of power and even if you democratize access to power, the exercise of power, the constitutionalism aspect remains a big, big, big challenge. Now, it doesn't mean that good constitutions don't help. I think they are very, very critical in the sense that they empower forces, democratic forces. They give them a rallying point, a coordination point, to bring in important democratization impacts or influences. Even in places, as you said, where you suspect leaders are making concessions now because they think it's important, but they know that over time they will abolish them. Even in places like that… and I can give you two good examples.

In 2014 in Burkina Faso, there was an incumbent leader called Blaise Compaoré. He had been in power for almost 20 years, but in around 2003, he wanted to legitimize his power. So, he adopted term limits, a constitution with term limits. A lot of people suspected that he would likely bypass that and he tried to do that in 2014, but the people rose up, the opposition forces, the people, the church leaders. The fact that these bright rules, bright line rules, were there provided a rallying point that forced this president to reconsider. That's one.

Another good example, again, around term limits in 2014, you have a president who had control over the executive, over the parliament. He wanted to run a third term and he starts a constitutional amendment process. So, everybody thought he was going to get his way, but he failed to get one vote. In the Senate, one guy refused to approve that constitutional amendment to allow the president a third term. So, you can see that the rules matter. I think despite the fact that there's a lot of personalization, a lot of patrimonialism and all, there is an increasing institutionalization of politics in Africa. So, ultimately the guy, what he couldn't achieve through parliament, he managed to achieve through the courts, but I think it shows that institutions matter. At least he had to go to court. He can't just do what he wanted.

So, I think good constitutions… I mean, of course, what is good is a difficult question. But I think constitutions that provide checks and balances, that decentralize power, that provide protection to the bureaucrats… I think often in constitutional dispensations we don't think about the bureaucracy, but that's a very fundamental site of power and influence that incumbent governments use. So, having good constitutions is important even when you have a government and leaders that are not necessarily committed to it, because it empowers democratic forces. It provides rallying points that can alter the context beyond the imaginations of incumbent leaders.

jmk

So, that kind of brings us full circle. Do you think that good constitutional design can eventually prevent coups from occurring within West Africa or Africa in general? Are quote unquote good constitutions just as likely to fall apart as bad constitutions?

Adem Abebe

That's the million-dollar question, but I would say this: I think it's very difficult to have coup proof constitutions. I think as important as constitutions are, it's not for constitutions to stop coups. I don't think that they have that capacity, but they can provide circumstances and processes and time that's hasten the costs of engaging both in military coups, but also constitutional coups where incumbents themselves essentially bypass the constitution or undermine the constitutional framework and all. So, I think a good constitution for me is one that creates arrangements, several hoops that hasten the political course of doing unacceptable things like engaging in a constitutional coup or in a military coup.

But at the same time, I think ultimately, as Learned Hand famously said… He talked about liberty, but we can talk about constitutionalism. When constitutionalism exists in the minds and hearts of people, the ultimate enforcers of any framework are the people. When people are happy, as in most of these places, they may be willing to give a chance to actors that they don't know, like the military, rather than actors they know and have disappointed like elected leaders. So, ultimately, constitutionalism is important. Democracy is important. But as democracy promoters, we also need to pay a lot of attention to the material needs of people like being safe, having basic services, having jobs and all of that. When these material needs are not satisfied, people will be more willing to give nondemocratic forms a chance.

So far, fortunately, I think Africans have said we want both democracy and social economic development. As we say, they are fundamentally democrats and they prefer democratic systems over military regimes or dictatorial regimes, but we cannot take that for granted. So, the more elected governments fail to deliver, the more democracy fails to deliver dividends, the more likely it is that undemocratic government regimes can emerge, even in places where we think that may not be possible.

jmk

Adem, thank you so much for joining me today. It was just a pleasure to talk to you about this. It's a subject that has been on my mind a lot and it definitely raises a lot of new questions, but does answer some other ones. I want to thank International Idea and their Constitution Building Programme for bringing us together. Can you let us know where to find more information about IDEA's Constitutional Building Programme? Where can we learn more about some of the efforts that you guys are making and some of the programs you are doing?

Adem Abebe

Justin, I must thank you. I am a big fan of your podcast. I listen to it a lot. Hopefully you will have more authors and experts that cover the African continent as well. So, I'm really, really happy to join you. It's a continent that is between hope…. I don't want to put it between hope and despair, but it's a continent where there are emerging challenges and emerging hopes. And just like the rest of the world, it's struggling at the level of democracy. But there are some bright spots and despite all the military coups, the fact that people want democracy will provide the seed for the emergence of more resilient, more capable democracies.

Now about International IDEA, we do a lot of work in constitution building. We work with actors on the ground and provide support directly to constitution making bodies. So, we have a website that's called idea.int. This is the broader one. But we also have one focused on providing a lot of resources on constitution building specifically and that's called constitutionnet.org. Hopefully, if there's any information you need or if you're engaged in these processes and would like to discuss, I would be very happy to engage with you.

jmk

Well, thank you so much once again. It's definitely an amazing resource that I've used myself. So, thank you for joining me and thanks for the ongoing work that you're doing.

Adem Abebe

Thank you very much, Justin.