In April 2023, Gabon’s Parliament adopted its second set of constitutional reforms in three years. These amendments, seemingly responding to the health concerns of the current president, shorten the presidential term in office and reinstate single-round voting. The changes follow in a line of deconsolidating amendments, and challenge the foundational democratic principles established during Gabon’s 1990 National Conference that led to the 1991 Constitution – write Alexis Essono Ovono and Kelly Joanna Nguema Ondo.
Introduction
“In Africa, more than anywhere else, the constitution is linked to the person of the Head of State”. These words by Professor Gérard Conac, uttered nearly forty years ago, find resonance in the latest constitutional reform adopted by Gabon’s parliament on 6 April 2023. This constitutional revision which concerns, among other things, the term of office of the Head of State, with a return to a single-round ballot, was initially supported by all political groups, but eventually boycotted by the opposition. It was passed amidst uncertainty about the health of President Ali Bongo Ondimba and questions about his capacity to continue in the presidential office. The timing is also significant given the proximity of the presidential election scheduled for August 2023.
Following the Council of Ministers’ deliberation on 3 March 2023, the draft amendments were examined by the Constitutional Court, which assessed their conformity with the Constitution. On 6 April 2023, the National Assembly and Senate (dominated by the president’s party) convened in Congress and adopted the proposed revision by 86 per cent of the votes cast, surpassing the two-thirds qualified majority as required by the 1991 Constitution.
This constitutional revision is the second adopted since the President suffered a stroke in Saudi Arabia in October 2018. Indeed, the first set of amendments adopted in December 2020, and previously analysed on ConstitutionNet, modified the provisions regarding temporary vacancy in the office of the president. It introduced a triumvirate comprising the presidents of the two houses of Parliament and the defence minister in the case of presidential incapacity, substituting the President of the Senate as previously provided under Article 13.
These latest amendments highlight the political stakes concerning provisions on the Head of State’s term of office in many African countries. Cyclically, as political elections approach, attempts are made to modify these provisions to benefit the incumbent, often provoking strong reactions from the opposition.
Historical context
The 1990s marked a new phase in Gabon’s political development, when a new constitution was adopted on 26 March 1991. In both letter and spirit, this constitution, which was enacted at the end of Gabon’s 1990 National Conference, aimed to establish a liberal, multi-party democratic regime and create institutional checks and balances. Its ambition was to subject the holders of political power to legal regulation and constraints. To this end, the founding fathers limited the number and duration of presidential terms. Thus, following the example of major democracies, they reduced the presidential term to five years, renewable once.
Amendments have aimed to weaken constitutional safeguards originally designed to prevent a return to the old authoritarian order led by President Bongo’s father . . .
However, in recent years, there has been a backlash against democracy, reflected in constitutional changes that undermine the achievements made in 1991. These changes often target the presidential provisions, such as abolishing presidential term limits in 2003. They also aim to weaken other constitutional safeguards originally designed to prevent a return to the old authoritarian order led by President Bongo’s father, who was president from 1967 until his death in 2009. This constitutional instability is concerning as it undermines democracy and the rule of law, and has resulted in political crises, such as the 2016 protests in the aftermath of disputed presidential elections.
An amendment to suit the circumstances
The drafters of the Gabonese Constitution opted for a rigid constitution, entailing a more stringent procedure for constitutional amendments than that governing ordinary laws. In practice, however, the legal safeguards intended to protect the stability of the text have proven to be no deterrent. Over the past years, untimely and opportunistic changes to the Constitution have become common.
Since the second half of the 1990s, Gabon has undergone a number of constitutional reforms, notably concerning the presidential term of office. Initially the Constitution required direct election of the president in a two-round system and, with a view to avoiding the consolidation of power, instituted a five-year presidential term that could be renewed just once.
Subsequently, however, successive constitutional revisions called these principles into question. The first reform of Article 9, extending the presidential term of office from five to seven years, took place on 22 April 1997. On 30 July 2003, Article 9 was revised again to introduce a single-round system for all political elections and indefinite renewal of the presidential term of office. On 12 January 2018, another amendment to Article 9 re-introduced a two-round system, which was a result of political dialogue following the post-electoral crisis of 2016. Finally, on 6 April 2023, the Gabonese Constitution underwent another reform affecting the presidential term of office. The 2023 revision also harmonizes the election date and duration of all political mandates to five years (President of the Republic, senators, deputies and local elected officials), removes term limits for all political offices, and adopts single-round voting for all political elections. Aligning legislative elections with the presidential election strengthens the president’s influence over the political system and restricts the scope of the parliamentary majority, with the National Assembly now more than ever confined to rubber stamping the directives of the executive.
This reform has provoked mixed reactions. Some argue that this revision aims to formalize the longstanding status quo, namely a monarchy in Gabon. Jean-Robert Goulongana, opposition MP and leader of the Forces Démocratiques Unies parliamentary group, commented that “the constitution would never be modern enough without term limits. It is a way of hindering the President’s desire to cling to power at all costs. The Head of State retains control over the administration, state resources and security forces during election periods. Conservatism continues to curb real democratic progress”. In response, the Prime Minister, Alain-Claude Bilie-By-Nze, declared that “this is a pioneering project to strengthen democracy and the rule of law”.
Gabon’s constitutional revisions to the presidential term of office have been politically tactical.
Partisan polemics aside, it should be emphasized that while constitutional revisions are necessary to adapt the constitution to changing times, and can therefore be a sign of constitutional vitality, the excessive number of constitutional revisions affecting Article 9 hardly meets this objective. Gabon’s constitutional revisions to the presidential term of office have been politically tactical. Their modus operandi (occurring just before elections) and their subject matter (focusing on the status of the Head of State) reveal at least one clear objective: the preservation of political power. This reform likewise follows the same pattern. It is intended above all to ensure the re-election of the Head of State in the face of a currently divided opposition, in a single-round ballot.
The government’s stated rationale for this constitutional reform, and in particular the reintroduction of single-round voting, is to reduce the cost of organizing elections and to avoid post-electoral conflicts caused by two-round voting. But this justification does not seem convincing. Firstly, the argument regarding financial cost does not hold up under scrutiny, because democracy and social harmony come with a price tag. In the past, the organization of two-round elections has never led the country to financial ruin. Secondly, the two-round system is no more contentious than the single-round ballot. The most recent presidential election in 2016, which used a two-round system, was the one that generated the most post-electoral violence. Post-election conflicts are not caused by the voting system, but can be linked to the level of transparency in the organization of elections.
Further, civil society organisations have criticized this constitutional revision. The Copil Citoyen, a coalition of Gabonese citizens promoting the rule of law and democracy, has petitioned the Constitutional Court to annul this amendment to Gabon’s fundamental law. The coalition believes that this latest revision, made through a bill and not by referendum, violates several constitutional principles as well as the objectives of universal suffrage as a pillar of representative democracy.
Ultimately, the recent constitutional reform, with the return to a first-past-the-post system, is probably intended to spare President Ali Bongo Ondimba the physical and psychological hardship of a two-round ballot, and to prevent the risk of a second-round alliance around an opposition candidate. In this sense, therefore, this amendment is not intended to ensure the evolution and adaptation of the Constitution, but rather calls into question the principles of democracy and the rule of law.
A deconsolidating revision
A consolidating constitutional reform process entails a revision that is broadly consensual, which improves the functioning of state institutions, and advances democracy and the rule of law. Conversely, deconsolidating revisions are those that lack consensus, and whose real motivations belie concern for constitutional development, democratic rationality and the advancement of the rule of law. The deconsolidating nature of the recent constitutional reforms in Gabon can be observed both quantitatively and qualitatively.
Quantitatively, the number and frequency of these revisions is significant. Indeed, on 6 April 2023, the Gabonese Constitution was amended for the ninth time since 1991, making Gabon one of the countries in Africa with the most amendments to its fundamental law. The frequent revision of the constitution is a sign of constitutional instability and the instrumentalization of constitutional norms by the executive branch. In many respects, the latter appears to be a tool for preserving and consolidating political power, rather than regulating its use. In Gabon, the recurrence of amendments trivializes the fundamental nature of the Constitution, leading to chronic constitutional instability.
Qualitatively, the content and purpose of these revisions do not align with democratic rationality. Indeed, almost all constitutional amendments in Gabon revolve around the position of the Head of State, involving modifications to the term-limit clause or extensions of the presidential term of office. These revisions are made solely to enable the Head of State to strengthen his powers or seek indefinite re-election. However, the achievements of the 1990 National Conference were to limit the powers of the President of the Republic and, most importantly, to facilitate alternation of power by limiting the number of terms in office.
A single-round system does not necessarily give sufficient legitimacy to the elected candidate to govern . . .
The 6 April amendments to the Constitution vividly illustrate this power-retention logic, regardless of the claims of its initiators. The intention behind the original adoption of a two-round majority system for the presidential election was to ensure the democratic legitimacy of the elected candidate. However, a single-round system does not necessarily give sufficient legitimacy to the elected candidate to govern. Indeed, the risk with this voting system is having a minority president as the Head of State, i.e., one who does not receive an absolute majority of the votes. This situation can be a source of paralysis or deadlock, as we have seen during the seven-year term of the current president.
Ultimately, the constitutional revision adopted in 2023 will undoubtedly have a deconsolidating effect on democracy in Gabon. Like its predecessors, it supports a shift toward authoritarianism and the monopolization of political power.
Conclusion
At the end of this reflection, one thing is clear: the constitutional revision adopted on 6 April 2023, which amends the constitutional provisions relating to the presidential term of office, illustrates first and foremost the centrality of the Head of State’s status in constitutional affairs. While the 1991 Constitution that emerged from the National Conference was originally intended to correct the excesses of presidentialism, paradoxically, the constitutional revisions made since the late 1990s have reinforced the presidential institution.
Secondly, this constitutional instability, despite provisions entrenching constitutional rigidity, tends to downplay the authority of the Constitution and challenges its role as a legal framework for power. Constitutional revision is not driven by constitutional advancement but a strategy to preserve political power. One by one, the democratic gains of the National Conference are being undermined. This manipulation of the Constitution is therefore becoming one of the characteristics of constitutionalism in Gabon.
Alexis Essono Ovono is Associate Professor of Public Law at the Omar Bongo University in Libreville.
Kelly Joanna Nguema Ondo is an Assistant in Public Law at the Omar Bongo University in Libreville.
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Suggested citation: Alexis Essono Ovono and Kelly Joanna Nguema Ondo, ‘Constitutional reforms in Gabon: the president’s strategic tool for political preservation’, ConstitutionNet, International IDEA, 1 August 2023, https://constitutionnet.org/news/constitutional-reforms-gabon-presidents-strategic-tool-political-preservation
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Disclaimer: The views expressed in Voices from the Field contributions are the author’s own and do not necessarily reflect International IDEA’s positions.
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Publish date : 2023-08-01 07:00:00
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