Is a Gabonese-type Transition Possible in Cameroon? Part II

By Dibussi Tande

2. “Fix as you go” Constitutional Clauses

Another issue that threatened to derail the Gabonese transition was the very vague nature of Article 13 of the constitution. The Article did not explain, for example, if the incumbent government was required to resign once the interim President was sworn in, or whether a cabinet minister or parliamentarian who was officially a candidate in the presidential election was required to relinquish his or her cabinet position or parliamentary seat.

Gabon's constitutional court in session

Gabon’s Interim President was therefore confronted with two issues; i.e., the constitutionality, or lack thereof, of Prime Minister Eyeghé Ndong's government, and the status of those government ministers who were candidates in the presidential race. Both issues threatened to derail the transition as political leaders, even within the ruling party, could not arrive at a consensus. Although the Prime Minister insisted that his resignation was not on the agenda, Interim President Rogombé thought otherwise and seized the Constitutional Court to clarify the issue.

The Court ruled that the incumbent government is dissolved as soon as an interim president is sworn in. Prime Minister Eyeghé Ndong resigned on July 17 July and was replaced by Paul Biyoghé Mba who announced his new government on July 22. Although three presidential candidates who were part of the Eyeghé Ndong government were dismissed (Mba Abessole, Oyé Mba, and Mba Obame), two other ministers, Ali-Ben Bongo and Pierre-Claver Maganga Moussavou, were maintained by the new Prime Minister. Their inclusion in the new government, particularly that of Ali Bongo whose ministerial portfolio gave him control over the military, raised a firestorm as a broad spectrum of the Gabonese political class and civil society demandeded that both men resign because their cabinet positions gave them an unfair advantage over other candidates. The government however insisted that there was no constitutional or legal basis to compel the ministers to resign, and left it up to them to make that choice individually. The issue was finally resolved when the Interim President took a bold stance and demanded that both Moussavou and Bongo resign from the government to ensure that all candidates were on an equal footing. They both did albeit reluctantly.

The Cameroonian constitution is equally unclear about the status of the Government once an interim President takes office, and it is completely silent on the status of a cabinet minister who decides to run for the presidency. According to Article 6(new), in the event of the death, resignation or permanent incapacity of the Presidency of the Republic, “The President of the Senate shall as of right act as interim President of the Republic until the new President of the Republic is elected.” Article 6(4)(b) is unequivocal that the interim President may not “amend the … the composition of the government”. However, article 6(4)(c) introduces a caveat by stipulating that the interim President can actually amend the composition of the government “after consultation with the Constitutional Council”.

Without doubt, the constitutional merry-go-round in Article 6 is a perfect recipe for constitutional gridlock since it does not outline the conditions that would necessitate the interim President to reshuffle the government. Neither does it clarify whether a mere “consultation” is all that is needed to reshuffle the government rather than an explicit ruling or authorization from Constitutional Council. It is also silent as to whether the “amendment” of the composition of the government extends to the dismissal or replacement of the Prime Minister, Head of Government. One therefore wonders what will happen if a sitting Prime Minister rejects calls from the Interim President to step down on grounds that the Interim President does not have the constitutional powers to do so...

These are the constitutional issues that the Constitutional Council will have to address, unfortunately, unlike the Gabonese Constitutional Court which is the highest judicial authority in the land and whose decisions are "binding on all public, administrative and judicial authorities, and on all persons and corporate bodies" (article 92 of constitution), Cameroon’s Constitutional Council is not a full court and has very limited powers which are not enshrined in the constitution. According to Article 51(new), the Council is composed of 11 individuals appointed by the president and chosen “from among personalities of established professional renown. They must be of high moral integrity and proven competence.” It is not difficult to imagine a scenario where the decisions of this not-so-powerful handpicked committee are openly challenged during a potential dispute between the Prime Minister and the Interim President, for example.

Enough time to organize credible elections?
It did not take long for the Gabonese government to realize that it could not organize viable elections in this country of only about 1.5 million inhabitants within the 20 to 45-day window prescribed by constitution. Fortunately, the drafters of the Gabonese constitution had the foresight to include a clause which allows for elections to be organized beyond the 45-day window in the event of a force majeure. On July 6, the government used this clause to request that the Constitutional Court allow the election to take place beyond the 45-day deadline. The court accepted the government’s request but stipulated that the election must hold before September 6. Elections finally took placed on August 30, in spite of arguments by most parties that even this new date was too soon for credible elections.

In Cameroon the constitution does not have a force majeur clause. The 1996 constitution prescribed a 20-40 day window to organize new elections during a transition. This period was increased to 20-120 days after the controversial constitutional amendment of 2008:

Where the office of President of the Republic becomes vacant as a result of death, resignation or permanent incapacity duly ascertained by the Constitutional Council, the polls for the election of the new President of the Republic must be held not less than 20 (twenty) days and not more than 120 (one hundred and twenty days) after the office becomes vacant.

There is no wriggle room here. And, given the logistical and other problems that have bedeviled past elections in Cameroon (for instance, the 2002 election had to be postponed because of logistics issues, even though it had been in preparations for seven years), it would be improbable, if not impossible, to organize credible and transparent elections in Cameroon in 120 days. A number of Cameroonian officials have argued that if Gabon was able to organize a presidential election in about 70 days, then Cameroon should be able to do same in 120 days or less. They are obviously making light of Cameroon’s penchant for chaotic, opaque, and problem-riddled election preparations that tend to delegitimize the final results which are almost always challenged. While the regime has always been able to manage post electoral discontent and protest, it will be a different ball game altogether if the same electoral problems surface in a post-Biya era. Most significantly, these Cameroonian officials ignore the fact that Gabon has a population of only about 1.5 million inhabitants with an area of area of 267,667 sq km (103,347 sq mi) compared to Cameroon’s over 18 million inhabitants and 475,440 sq km (183,568 sq mi).

In 1992, Andze Tsoungui, then Cameroon’s Minister of Territorial Administration famously declared that laws were made by man and could therefore be changed by man on a whim. So let’s imagine a scenario where it becomes apparent that the state cannot effectively perform all the key tasks of an election cycle in 120 days. Who will be empowered to make this assessment? The interim President (Head of State) or the Prime Minister (Head of Government)? And what if there is a disagreement over this issue? And, even if they both agree that it would be prudent to postpone the elections which body is empowered to authorize the postponement? The Constitutional Council, the Supreme Court or some other institution? Here then is another source of constitutional gridlock and a potential catalyst for socio-political upheaval, particularly if the key political stakeholders disagree over the need to postpone or not postpone the elections.

The Vice Presidency Mirage
Recently, it was widely reported in the Cameroonian media that the Biya regime was considering creating the position of Vice President, alongside that of a Prime Minister, in a bid to facilitate the post Biya transition. If this is indeed the case, then once again, the Biya regime has read the Gabonese situation incorrectly. In that country, the position of a ceremonial Vice President (with no constitutional powers) was never created to facilitate a future transition. Rather, it was (re)instituted in May 1997 by the late President Bongo as part of an “ethnic balancing” act. By appointing Divungi Di Ndinge as Vice President, Bongo ensured that the Punu ethnic group who reside on the left bank of the Upper Ngoume River, had a seat at the helm of the state. In fact, this was no different from President Biya’s appointment of Nyat Njifendi as Vice Prime Minister in 1992 to accommodate and pacify the Bamileke community which had been at the forefront of the anti-Biya protest movement of the années de braise, and had disproportionately borne the brunt of the crackdown on opposition forces. It is worth noting that President Ali Ben Bongo abolished the position in October 2009 along with 17 other cabinet-level positions.

The creation of the position of Vice President as a means to facilitate a smooth transition makes sense only in the case where the Vice President is the President’s constitutional successor empowered to finish the President’s term of office in the event of incapacity, resignation or death (as is the case in the United States). Anything short of this option muddles the political scene even further by adding an unnecessary and potentially explosive new element in an already convoluted and unpredictable political situation.

Conclusion
In spite of its successful outcome, the Gabonese transition cannot be considered a test run or template for a future transition in Cameroon because Gabon’s socio-political landscape is fundamentally different from Cameroon’s in spite of the numerous “surface” similarities. As far as Cameroon is concerned, it is doubtful that a largely ceremonial and hand-picked Senate President (let’s forget for one moment that the country still does not have a Senate even though it was established 14 years ago by the 1996 constitution…) will have the authority to rein in the incumbent government, serve as an arbiter between competing ethno-political interests within the ruling class , deal with the unavoidable constitutional issues that will crop up, and organize credible free and fair elections in no more than 120 days, all this while trying to keep the army in check. Thus, contrary to what its supporters firmly believe, Cameroon’s no-constitutional-successor system will likely result in a botched transition rather than a peaceful transfer of power to a nouveau regime... even if that new regime is merely “Biyaism” in dressed in new robes…