Africa and the bane of third terms

via Africa and the bane of third terms – The Zimbabwe Independent June 19, 2015

Speaking at the most recent African Union (AU) summit held in Sandton, South Africa last week, President Robert Mugabe who is also the current AU chairperson, bemoaned presidential term-limits, saying “we (in Africa) put a rope around our own neck and say leaders must only have two terms”. Two terms is like two weeks, he added.

Alex T Magaisa

He may have said this in jest, but it echoed an underlying sentiment held by a number of his compatriots at the summit.

However, speaking at the recent Africa edition of the World
Economic Forum in Cape Town, South African President Jacob Zuma and Kwesi Amissar-Arthur, the Vice-President of Ghana, had issued a different call. They agreed that term limits ought to be respected and that the matter needed to be on the agenda of the AU summit. Both South Africa and Ghana, after 1992, have generally been exemplary in terms of changing leadership.

Trouble in Burundi
The issue of term limits has gained currency in recent weeks following events in Burundi where a bid for a third term by current leader, President Pierre Nkurunziza plunged his country into chaos and violence. A failed coup and widespread protests left at least 20 people dead.

Across the border in the vast country of the Democratic Republic of the Congo (DRC), there has been uncertainty with President Joseph Kabila apparently seeking to extend his stay in office beyond the two terms which are due to end in 2016.

Rwanda, which is Burundi’s next-door neighbour, is also facing a similar question, with reports that President Paul Kagame may stay beyond his two terms due to expire in 2017.

An African trend?
Changing constitutions in order to relax or completely remove presidential term limits seems to have been a trend in a number of African countries in the last couple of decades. The Institute of Security Studies (ISS) states that between 2000 and 2015, 16 African leaders have tried to change their countries’ constitutions for purposes of extending presidential term limits. Of these, 10 were successful.

Another study, by Dulani (2011) shows that between 1990 and 2009, 24 African leaders tried to change term limits in their countries’ constitutions. Of these, nine faced stiff resistance and abandoned their efforts before taking the matter to parliament. Fifteen went on to draft Bills to change the law. Of these, 12 succeeded but three failed.

The adoption of presidential term limits provisions in national constitutions became a popular trend in the last decade of the 20th Century as countries abandoned the one-party state system and introduced democratic reforms, including multi-party elections. The one-party state system had been characterised by long presidential reigns. The majority of them were the founding leaders of the newly independent countries. This was the era of “Big Man politics” and most of them kept office for decades.

The new constitutional reforms following the end of the Cold War brought in term limits as a mechanism to prevent long reigns and personalisation of power and to promote a culture of changing leadership. The US presidential system with a strict two-term limit on the presidency was a major precedent that was copied in the new constitutions.

However, in his study, Dulani found that in recent years there have been more efforts aimed at reversing term limits provisions in a number of African countries. In his analysis, he identified a reversal in almost half the countries that had initially embraced term limits.

Ironically, most of the leaders who sought to extend their terms were the ones who would have made glowing speeches on the importance of term limits at the time of their introduction.
Dulani studied four countries where the presidents tried to change term limits provisions in Southern and Eastern Africa, namely Namibia, Malawi, Zambia and Uganda.

All the leaders initiated debate on scrapping term limits, but while two succeeded in extending their stay in office, the other two failed. The successful ones were Sam Nujoma (Namibia) and Yoweri Museveni (Uganda) while Bakili Muluzi (Malawi) and Frederick Chiluba (Zambia) were thwarted and failed.

What they want
Typically, when there is an attempt to extend terms beyond the stipulated limits, the justification given is that it is what the people want. This is the same justification that is being used, for example, in Rwanda. This was echoed by Mugabe at the recent AU summit when he said “It is a democracy, if people want a leader to continue, let him continue.”

The trouble, however, is that it is not always easy to distinguish between what the leaders say the people want and what the people actually want. Leaders often speak on behalf of the people and say this is what they want. There can be mere shows passed off as consultations or petitions organised by the leader’s team to pass off as demands by the people that the leader must remain in office.
And even if referendums are held, the process and results can easily be manipulated to suit the leader’s agenda. Therefore, oft-times, it is not unusual for the leader’s wishes to remain in office to be passed off as what the people want.

Against this background, probably the best safeguard against this abuse would simply be to steer clear of extending terms or, as we tried to do in the new constitution of Zimbabwe, to make the process of amending the term limits provisions complex, onerous and cumbersome.

Furthermore, as we will see shortly, we introduced a strong disincentive in the sense that the incumbent cannot benefit for changes to the term limits provisions.

Term limits are seen by some leaders as too constraining. Other leaders who have complied with their term limits requirements have expressed disquiet over the restrictive effect of term limits.

Former Mozambican leader, President Joaquim Chissano, who was hailed for leading by example when he did not seek to extend his rule has, however, said he thought the time in office was too limited and did not give enough room for the implementation of a leader’s long-term plans. In his view, term limits were limiting.

Nevertheless, Chissano’s conduct was exemplary as he set a good precedent in his country, ensuring a culture of respecting term limits. Unsurprisingly, President Amarndo Guebuza, who came after him, has since served his two terms and left office. After a faltering start when it indulged founding president Nujoma, Namibia has come back on track and term limits are respected.
Botswana has largely been on track, with leaders respecting term limits.

Tanzania is another country that has led by example in this regard. While founding president Julius Nyerere stayed in office for a long period; he led by example when he voluntarily paved way for multi-party democracy and set in motion a succession plan and culture that has been enduring ever since.

In West Africa, Ghana has also led by example, with the leaders generally respecting term limits and retiring after service. These are positive stories which stand in stark contrast to what is evident elsewhere on the continent.

In most of these countries with success on respecting term limits, the succession process is guided by controlled succession processes within the ruling political parties. These ruling parties, like CCM in Tanzania, Swapo in Namibia, the BDP in Botswana and Frelimo in Mozambique, have found a model of ensuring a change of national leadership through controlling change of leadership and a clear succession plan in their internal structures.

In this regard, one might notice some vague similarities with the Chinese model, where national leaders do change, but only in accordance with dictates of controlled succession processes within the Communist Party.

One leader who has shown remarkable candour and is on course to do the complete opposite of what some of his counterparts have been trying to do is President Macky Sall of Senegal. He has announced plans to actually reduce the presidential term of office from seven to five years. This would be a reversal of what his predecessor Abdoulaye Wade did in 2008 when he changed the law to allow a third bid for the presidency and also extended the presidential term from five to seven years. This was a reversal of the policies that he had championed when he first came to power.

Wade later lost the presidential election to Macky Sall in 2012. Now Sall has promised a referendum to reverse the changes that his predecessor had self-servingly introduced. He wants to reduce the presidential term back from seven to five years. He is certainly an exception to a negative trend in which leaders seek to stay in office longer and to scrap off term limits altogether.

Term limits in Zim
The issue of term limits came up during Zimbabwe’s constitutional reform process. There was no dispute over the principle as the overwhelming majority of the people had demanded presidential term limits during the consultations. Thus, the rule was included in the new constitution that a person could only serve as president for a maximum of two terms of five years each.

As a technical adviser during the constitution-writing process, I know we took the liberty to extend the term limits provisions to heads of other key state organs, including the security organs, state companies, state agencies, and even the head of parliament. The message was simple: no to long stays in positions of power, since power has a corruptive effect.

However, we realised that beyond giving effect to this principle, it was important to make it water-tight, and to ensure that the rule could not be circumvented. We made it clear, for example, that if a person has served a minimum of three years, whether continuously or cumulatively, as president, then he would be regarded as having served a full term.

We did not want a person to leave office just before the end of his term so that he would return again on the basis that he had not served a full term.

We were also concerned about the tendency of an incumbent to want to extend his/her stay in office beyond the two terms, so we ensured that the process of amending the term limits provisions was not only complex, onerous and cumbersome, but we removed the incentive for incumbent leaders to amend. This we did by ensuring that any move to change the term limits provisions would not benefit an incumbent.

In other words, if an incumbent decides to amend the term limits provision, that amendment would not apply to his/her case, but it would only take effect after him/her had left office. By way of example, if the new constitution is amended today, the extension would not apply to Mugabe and therefore would not benefit him, but a future president. Since usually incumbents push for removal of term limits for self-benefit, there is no incentive to change the provisions because in our case, the person changing will not be able to benefit from the changes.

Another safeguard protecting the term limits provisions is that they can only be amended by referendum. In other words, parliament alone has no power to change the term limits provisions. The matter must be put to the people. Furthermore, these provisions protecting the term limits provisions are also tightly protected as they cannot also be changed unless they are put to a referendum. This ensures the process of amending term limits provisions is complex, cumbersome and onerous. And expensive, too.

The only dispute encountered during the constitutional negotiation process was over the commencement of the application of the rule. Would it have retroactive effect to bar any person who had already served in the presidency? This would cause a storm as the only person it would affect would be Mugabe, the only leader Zimbabwe has known since Independence in 1980 and he had already served more than two terms.

In this case, the first draft of the new constitution nearly caused a crisis and a breakdown of the process, part of which is dramatically captured in the excellent documentary, Democrats, which vividly chronicles the process of making the new constitution. There is a scene in that film where Zanu PF’s representative Paul Mangwana is visibly angry in response to the clause. The effect of the clause was retroactive and would have prevented a person who had already served two terms from seeking office again. Zanu PF were apoplectic with rage, believing this to be a direct attack on Mugabe. They saw it as an attempt to disqualify and bar their leader from the next election.

It would have been suicidal for Zanu PF negotiators to accept that clause and their protest was not only against the clause, but it was a show to their leadership that they were fighting on their behalf. They had to do that or risk being dismissed or worse for being regarded as “sell-outs”.

We, sitting on the MDC side of the negotiating table, had not been responsible for that provision, but once we saw it in the draft, we thought it was useful as a bargaining tool. We did not defend it because we thought it would sail through, no. It was obvious that Zanu PF would not accept it and personally, I did not believe that we should have a clause in the new constitution that applied retrospectively.

I had criticised Zanu PF quite heavily in the past for using retrospective legislation and I was not about to encourage a clause that did exactly that, however popular among party supporters that clause might have been. But we figured out that such an “outrageous” clause was a gift from the drafters that we could use to bargain for other things that we wanted.

One of the things I learnt and used in the constitutional negotiations is that if you want something in a negotiation, you have to demand the extreme form of it or even make unreasonable demands knowing very well that you would eventually drop them in favour of something less or something else in return. This is what the clause that enraged Zanu PF did for us. It helped us secure concessions that we would otherwise not have had.

In the end, we managed to agree a set of term limits provisions which I believe are stronger than what you would find in most constitutions. As we have seen, the amendment procedures are cumbersome and there is no direct incentive for an incumbent to amend the provisions as he does not benefit from the changes.

Meanwhile, the crisis in Burundi goes on, triggered by yet another African leader’s desire to stay longer than the constitutionally-mandated term limits. The AU must not only condemn unreservedly such conduct, it must also take pro-active measures to prevent it.
The issue is not that a leader is so good that he is indispensable.

There must be a culture which ensures that however excellent you are, when you have served your terms, you leave, as there is always someone who can do the same, if not better. The problem with long reigns is that they promote a personality cult and unhealthy dependency on a single individual. And with excessive power over a long period of time comes abuse. Even if one might have started well, the law of diminishing returns applies to power as it does to other phenomena.

Good leaders must be able to build institutions which can be used by anyone and still succeed. We must build institutions and trust institutions rather than rely on individuals. Individuals come and go, they grow old and die, but institutions are more enduring.

This is why for me, no matter how great you are as a leader, you must respect term limits. As the ISS stated before the AU summit, changing constitutions to permit more terms constitute the next big threat to peace and security on the African continent. The conflict and unrest in Burundi is a warning signal.
Dr Magaisa is a lawyer and lecturer at Kent State University in the UK. —