Constitutionalism and Political Transition in Burkina Faso

Samson Mwin Sôg Mé Dabiré

Swiss National Science Foundation

Constitutionalism in Burkina Faso can be said to begin with the proclamation of independence on 5 August 1960 and the constitutional referendum of 27 November 1960. Its history is marked by four republics separated by exceptional military and revolutionary regimes: First Republic (1960-1966); Second Republic (1970-1974); Third Republic (1977-1980); and Fourth Republic (1991-present). A fifth constitution is awaiting to be adopted. Except for the First Republic, which was a presidential regime, all of the others have embraced a more or less presidentialized parliamentary system. Without exhausting the constitutional history of Burkina Faso, this piece focuses primarily on the current, and most enduring, Fourth Republic.  

The Constitution of the Fourth Republic was adopted by referendum and promulgated on 11 June 1991. Over the course of its thirty years, it has been amended eight times, each amendment affecting, among other things, presidential term limits. It is an archetype of constitutions that were adopted following the third wave of democratization in Africa, enshrining classic guarantees of fundamental rights and, in the spirit of African human and people's rights systems, ‘peoples' rights’ and individual duties. However, the fact that the Constitutional Council (Conseil constitutionnel) rules out the possibility for direct referral by individuals weakens the protection of fundamental rights.

The Constitution of the Fourth Republic establishes a hybrid political system that blends elements of parliamentarianism with elements of presidentialism. It is also marked by a very important ‘parenthesis’: the popular uprising of October 2014 and the ‘transition’ that followed. 

The Fourth Republic: Between Parliamentarianism and Presidentialism

The Fourth Republic follows the parliamentary tradition of responsible government, with political accountability before Parliament enforced through motions of confidence, motions of censure, and the possible overthrow of the Government by Parliament. In addition, the President of the Republic can dissolve Parliament. From the presidential tradition, the Fourth Republic adopts, among other practices, the election of the President by direct universal suffrage and his political non-accountability to Parliament (a motion of censure cannot question his political responsibility). The executive power is thus bicephalous, with both the President of the Republic and the Prime Minister at its apex. 

But parliamentary control mechanisms have been rationed and used parsimoniously: in thirty years, no motion of censure has been passed, and the Government has always held the confidence of Parliament. In addition, since the presidential party and its allies dominate parliamentary activity, their political majority in Parliament makes it difficult for Parliament to exercise effective and efficient control over the Government or sanction its actions. Besides, the President of the Republic already has significant powers (dissolution of Parliament, appointments to high state offices, Commander-in-Chief of the army, grant of pardons and proposition of amnesty laws, decree of state of siege and emergency, etc.). Thus, some call him a republican monarch. 

As a result, Burkina Faso's political system has been called either a parliamentary-presidential system or a strongly presidential-parliamentary system. This configuration lends itself to the abuse of power by the President. It was, in part, the reason for the popular insurrection of October 2014 – a crisis that led to the organization of a ‘Transition’. Intended to establish boundaries that would rebalance government powers in Burkina Faso, the Transition led to the adoption of a ‘Transition Charter’ whose legitimacy and constitutionality have been controversial. 

Popular Insurrection, Transitional Charter and Constitutional Problems 

By 2014, President Blaise Compaoré lengthy tenure was increasingly contested. In power since 1987, Compaoré attempted to extend his presidency by modifying Article 37, the constitutional provision on the presidential term limits. In October 2014, a popular insurrection overthrew the Compaoré regime. A coalition of political parties, civil society organizations, defence and security forces, and religious and customary authorities – called the forces vives de la nation – adopted a ‘Charter’ for a 12-month ‘Transition’ period  to organize democratic presidential and legislative elections. The Charter organizes and governs the organs of the Transition. It makes references to and derogations from the Constitution (suspended in the earliest phase of the insurrection and restored later). It asserts its supra-constitutional value in the event of a contradiction between its provisions and the Constitution. It was thus intended to be a (supra)constitutional instrument during the time of the Transition. 

 The legitimacy and legal character of this Charter have nevertheless given rise to some controversy. While some have considered it a constitutional instrument, others have considered it a para-constitution or a special political agreement. It was adopted by signature of the representatives of the different participants from the forces vives de la nation mentioned above – not by popular referendum, nor by parliamentary ratification, and without the involvement of international actors (to be a classic political crisis agreement). However, it has been argued that these signatories embodied popular and democratic legitimacy (in the original and direct meaning) and were thus able to exercise the constituent power. 

This sort of 'constitutional UFO', however it may be described, is remarkable for its originality. It has, undeniably, a dimension of political agreement and a constitution ratione materiae. But above all, it expresses the country's commitment to constitutionalism. In fact, it was one of the seemingly innumerable and opportunistic modifications of the Constitution that had triggered the popular uprising and preservation of the Constitution was, thus, a fundamental priority for the insurgents. Conducting the Transition within a constitutional framework also helped to keep the army at bay. In September 2015, the people would resist an attempt military coup d’état against the Transition. This Transition model seems to have inspired similar processes for the emergence from constitutional crises within the subregion, such as in Mali (2020) and Chad (2021).

The presidential and legislative elections of 2015 brought an end to the Charter and the Transition period in Burkina Faso. Subsequent elections were held in 2020. The country now enjoys a measure of political stability despite the ongoing security concerns in the Sahel region since the destabilization of Libya in 2011. The prospect of a new constitution, that of the Fifth Republic, is envisaged. As compared to the present Constitution, the draft text does not bring any significant changes in the institutional relations between the various powers.

Samson Mwin Sôg Mé Dabire, PhD, is a Postdoctoral Research Fellow of the Swiss National Science Foundation, at the Max Planck Institute for Comparative Public Law and International Law (Heidelberg) & at the Institute for International and Comparative Law in Africa (Pretoria)

Suggested Citation: Samson Mwin Sôg Mé Dabiré, ‘Constitutionalism and Political Transition in Burkina Faso’ IACL-AIDC Blog (18 October 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/10/18/constitutionalism-and-political-transition-in-burkina-faso.