Mali’s proposed constitutional reform: mal-intentioned, or merely inept?

This post was written by A. Karim Sylla of the MaliLink Investigative Reporting Group.

17 June saw what may have been the largest protest march ever held in Bamako. Many tens of thousands of people–organizers claimed it was in the hundreds of thousands–turned out that Saturday in opposition to government plans to change Mali’s constitution. What was so controversial about the proposed reform?

First some context: Mali’s current constitution was drawn up after the March 1991 popular revolt that deposed the then-dictatorship. It was approved by referendum in January 1992. The constitution is largely inspired by the constitution of the French 5th Republic — multiparty democracy with both a president and a prime minister running state affairs, and a parliament to vote bills into law. The president appoints the prime minister who is approved and recalled by the parliament.

In the aftermath of the 2012 uprising in northern Mali, a political settlement dubbed l’Accord d’Alger (the Algiers Accord) was signed in June 2015. Its purpose was to provide greater autonomy to the country’s sparsely populated northern regions, put an end to the cycle of violence and bring about much-needed stability. Because Mali’s 1992 Constitution only recognizes a central government, while the accord called for devolving political and economic powers to the regions, implementing the Algiers Accord requires changing the constitution.

Since 1992, two attempts to reform the constitution failed for lack of political or popular support. They were regarded as attempted power grabs. This time around it looked different: peace in the country was at stake.

Changing Mali’s constitution is a three-step process: any revision must first be debated, possibly amended, then approved by a two-thirds majority in the parliament. The Constitutional Court must then declare the text and process lawful. The final step is a popular referendum with a simple majority.

On 20 April 2016, then-Prime Minister Modibo Keïta appointed a panel to prepare a preliminary draft revision. The panel’s tasks were to (a) accommodate the Algiers Accord and (b) correct other “shortcomings” in the current constitution, though nobody clearly defined what those shortcomings were. The panel was to report to the prime minister and the minister in charge of government reforms.

About a month later President Ibrahim Boubacar Keita issued his own decree, nullifying the prime minister’s and directly nominating members of the constitutional reform panel. He was making it clear that he fully intended to drive the process. The 13-member panel was headed by Mamadou Konaté, who subsequently became minister of justice. In addition to accommodating the Algiers Accord, Konaté publicly stated that “Individual freedom will be undoubtedly reinforced. [This] revision could be nothing short of what Malians expect. And we will not disappoint them.”

The panel was to last six months, with approval processes and the referendum taking place before the end of 2016. That didn’t happen. (Nothing in Mali really works as it is supposed to.) Ten months later, on 13 March 2017, the government finally presented a bill to the parliament. “After a quarter of a century [the Constitution] has shown shortcomings and insufficiencies that need to be corrected,” the prime minister explained in his letter to the MPs. Parliamentary debates started on 27 March. Very soon it became clear that the panel’s work was different from the introduced bill; the text in front of MPs was a rush job, containing inconsistencies, omissions and even typos.

The revision called for the establishing a Senate as a second parliamentary body. Two-thirds of senators would be elected and – controversially – the remaining third simply appointed by the president. The president would also gain the right to dismiss the prime minister and appoint the head of the constitutional court which decides on the constitutionality of laws as well as validates the winner of presidential elections. Judicial independence was forgotten along the way.

The revision would also allow changes to the constitution without a referendum – except for matters regarding the secular nature of the state, and term limitations for the president and MPs. With this new power the president and MPs could potentially make dramatic changes to the constitution–even, critics have suggested, decide against multi-party democracy.

Opposition to the revision was swift. The main argument against the proposed change stemmed from Article 118 of the constitution – which stipulates that “No reform of [the constitution] could be pursued when the territorial integrity is being undermined”.  Another argument which Malians are quite sensitive to is the broadening of presidential powers. The ability to dismiss the prime minister coupled with the existing power to dismiss parliament would presumably allow the issuing decrees at will. This would be facilitated by a more pliable constitutional court – the president would be able to nominate the head of the court whose vote, in case of ties in the nine-judge body, counts double. As mentioned above, the president is to appoint a third of senators with no restrictions whatsoever. Eliminating the High Court of the parliament (the only one able to try the president and ministers) would further tilt the balance of power toward the executive.

Confident that the reform would be approved by parliament, the government set the referendum for 9 July. The bill was debated in parliament and approved on 3 June by 111 MPs – largely surpassing the required two-thirds majority of the 147-member body. The law was sent to the Constitutional Court on 5 June.

A day later, the Court issued its ruling. Article 118 was brushed aside; the Court reasoning that no-go areas held by former rebels do not constitute a risk to the integrity of Mali’s territory since no foreign power is occupying it. The Court noted a few omissions in the new law. The president’s oath of office in the new text was missing the pledge to guarantee the independence and the integrity of the national territory; some saw it as a deliberate omission by the government. Another omission was the power to appoint ambassadors to international bodies. The Court also revealed a level of confusion between the new text, the version approved by MPs and the old text – some changes only noted differences between the final text and changes added to the original text, not the original text itself.

This created a dilemma for the government. Making these alterations would require a new vote in parliament, which means additional debate and possibly missing the 9 July deadline. Not making the change would mean violating the decision of the Court. Opposition leader Soumaila Cissé and other MPs petitioned the Court to force a new parliamentary vote. They also asked the Court to review its decision on whether Mali’s territorial integrity is currently violated. Lastly they argued that the draft law was unclear about appointed senators’ term in office as well as the new power to amend the constitution without referendum.

Meanwhile, popular opposition to the reform was growing; grass-roots movements using social media went in overdrive. As early as 8 June a group called Trop, c’est trop (“Enough is enough” in French) attempted a demonstration – it was quickly quelled by the police resulting in 10 injured protesters. Two days later, the same group attempted another protest march and was again blocked by the police. In a desperate attempt to quiet opposition to the referendum, the government resorted to restricting access to social media sites.

Opposition parties, NGOs, and a trade union joined together and formed the An tè, a banna! (“We refuse, that’s it” in Bamanan) movement. The new grouping called for the withdrawal of the new text. It then called for a protest march in Bamako on 17 June, warning that it would not abide by any prohibition by the authorities. That march brought back memories of the March 1991 revolution, making it clear that going forward would be risky for the government. The message was heard: on 21 June, the government quietly announced the referendum’s indefinite postponement. Officially, it is seeking a new decision from the Constitutional Court.

The last group to come out against the new text is an influential umbrella group representing Islamic Associations, the Collectif des Associations Musulmanes du Mali, which is now calling for its withdrawal. Their objections center around the government’s ability to amend the constitution and alter legal aspects concerning social life, such as family law, without resorting to a referendum. The association is calling for a “no” vote if the project goes ahead.

Things don’t look good for President Keita’s plans.

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