In the course of writing our last post, Kate and I couldn’t help but notice the surprising lack of legal analysis of the situation in Cote D’Ivoire. There is plenty of political commentary, (not to mention the odd call for a coup or two), but if someone has done a careful analysis of how Ivorian law applies to the events of the last few weeks, we haven’t found it. Which is a little odd, no? Call us biased, but it seems like law is an important thing to take into consideration when determining whether someone is president or not.
I was able to find an English translation of Cote D’Ivoire’s Constitution. And, reading through it, I am left wondering if Gbagbo’s claim to the presidency is perhaps stronger, as a matter of law, than has been portrayed by the chorus of international condemnation. (Note: I am definitely not an expert in Ivorian law, so take all this with a spoonful of salt. If any of you readers are, or know someone who is, I would love to hear from you/them.)
From my admittedly-limited analysis, it sounds like the legality of the situation really comes down to whether the Constitutional Council has acted legally – and whether there is a way to overturn their decision, even if they didn’t. Under the Ivorian constitution, the Constitutional Council has sole authority to determine the results of presidential elections, and to decide disputes about election results. (Title VII, Art. 94.) They also get to swear in the new president, (Title III, Art. 39).
In this case, the Constitutional Council has sided entirely with Gbagbo. They overturned the election results proclaimed by the electoral commission, and nullified the ballots from several northern districts on account of fraud, handing Gbagbo a majority. On December 4 of last year, they also administered the oath of office to Gbagbo.
It is not clear what procedures the Council is required to use when coming to their decisions, or if they were followed here. The constitution merely states that “the rules and organization and functioning of the Constitutional Council, the procedure and the time periods in which it has to decide” are to be left to the “organic law” (ordinary statutes and rules, rather than the constitution itself.) I couldn’t find an online resource stating what those rules are. So, I can’t comment on whether the Council acted in accordance with its own rules in this situation. It’s unclear to me, for instance, whether they were permitted to discard certain districts’ election results without further investigation, or whether they properly followed their procedures for reaching a decision (are they supposed to vote? is some sort of quorum required?).
However, that may not matter, because under the terms of the constitution, the Council’s decisions are final. Under Title VII, Article 98, “the decisions of the Constitutional Council are not susceptible to any recourse. They [are] imposed on the public powers, on every administrative, jurisdictional, [and] military authority and on every physical and moral person.” In other words, even if the Constitutional Council did not follow its own rules, it’s not clear that there are constitutional means by which their decision can be challenged.
It seems to me that there is a distinct possibility that this is a Bush v. Gore-type situation: even if Gbagbo was not the winner of the democratic elections, under Cote D’Ivoire’s constitution, he is now that country’s president for a new term. The Constitutional Council had the authority to decide the election, and they decided it in his favor. They also had the authority to administer the oath of office to the new president, and administered it to Gbagbo (so that the oath that Ouattara took is just a gesture, not a legal basis for claiming the presidency). And, even if those decisions were corrupt and improper, it is not clear that that actually makes them invalid under Ivorian law.
If that is the case, should it make us re-think the international community’s universal calls for Gbagbo to step down and allow Ouattara to assume the presidency?
Please leave your thoughts in the comments – I don’t know that much about the situation there, so I would love to hear more from those of you who do, especially if you can shed some more light on the law behind all this.