Burkina Faso/Faso Presidential Transition: Constitutionalist Professor Revend Louis Marchal Zongo said that “this new attribution has no clear legal implications”

Lefaso.net: The revised Transitional Charter adopted by the National Conference on 25 May now establishes the President of Faso as the head of state, replacing the President of the Transitional Period. What exactly has changed as a result of the amendments provided for in Article 4 of the Charter?

Professor Relwendé Louis Martial Zongo: Nothing has really changed. In fact, the modification takes place in article 4. It should be remembered that in the previous version of the Charter, this article provided that: “The President of the Transition shall exercise the functions of the President of Faso, Head of State” and that “his powers and prerogatives shall be those provided for in this Charter and in Chapter III of the Constitution (…)”. However, the modification proposed last May has no impact on the scope of the powers of the Head of State, which remain those provided for in the Charter and in Chapter III of the Constitution (in addition, the Head of State has many other prerogatives of the State that are not defined in Chapter III).

The question we naturally ask ourselves is, what is the point of granting the title of President of Faso if, as head of state, we already exercise the substantive powers of the President of Faso? The only reasonable answer lies in the need for democratic legitimacy, but given this art, democratic legitimacy does not exist. Article 37 of the Constitution clearly states the way to obtain it: the ballot box (I remind you that the Constitution has not been repealed). That is why all this creates a feeling of usurpation of ownership, which is not good for its beneficiaries.

Also read: Burkina Faso: It is now necessary to refer to “President of Faso, Head of State, Chairman of the Council of Ministers” in official documents

What are the legal implications of this new attribution?

In light of what I have just elaborated, it is clear that this new attribution has no recognizable legal meaning. As I said, the only plausible explanation lies in the need and desire to confer a certain democratic legitimacy, which is paradoxically denied by refusing to restore the normal constitutional order. The legitimacy of the National Conference, no matter how inclusive (although it is not), cannot effectively replace and be equal to the legitimacy of the ballot box.

Perhaps the participants validated this modification in light of the new five-year lease for the head of state and by analogy with the constitutionally recognized term of office for the president of Faso. But it is not the length of time in office that confers the title of president of Faso, but the path to it. Whether we like it or not, a coup d’état remains an abnormal way of seizing power in the constitutional order established in Burkina Faso, an unexpected event and a “constitutional exception” that must continue to exist.

It was also decided that the president would not take the oath of office. How do you evaluate this?

I think this is a great service to the Constitutional Council. The oath is an act of constitutional legitimacy, which is itself linked to democratic legitimacy. We still remember all the legal acrobatics that the Constitutional Council had to do to authorize the leaders of the first and second parliaments to take the oath of office, and all the criticism that came with it. So for me it is better this way, to avoid embarrassing the “wise men” of the Constitutional Council again.

Nevertheless, I would like to point out that Minister Bayala’s explanation for the 8pm news is not convincing at all.

First of all, I hope that the Government will at least seriously consult the Constitutional Council on this issue. Well, if I understand Mr. Bayala’s explanation correctly, the Head of State was not able to take the oath because Article 6 of the Charter, which provides for the oath, has not been amended. The Transitional President has already taken the oath for the first time and therefore has no legal obligation to repeat it before the Constitutional Council.

The reasoning could be reversed and it would be more credible. Indeed, we could argue that the obligation remains in place precisely because the obligation in the amended Article 6 remains unchanged. Moreover, we could believe that, following the words of the drafters of the amended Charter, the Head of State had previously been sworn in as the “Transitional President” and that this first swearing-in had no bearing on the second swearing-in of the new “President of Faso”. In any case, the Minister of Justice’s reasoning would lead us to believe that the Burkina Faso Constitution would exempt the President of Faso from the obligation to re-swear in if he were re-elected, but this is not supported by practice in the Burkina Faso Constitution.

As president of the Burkina Faso Constitutional Society (SBDC), are you often consulted by the transitional authorities on certain decisions?

The SBDC was never consulted for MPSR 1 or MPSR 2.

Serge Ika Ki online interview

Lefaso.net