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THE SUCCESSION of FAURE GNASSINGBE to the TOGOLESE PRESIDENCY an International Law Perspective

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THE SUCCESSION of FAURE GNASSINGBE to the TOGOLESE PRESIDENCY an International Law Perspective CURRENT AFRICAN ISSUES NO. 30 THE SUCCESSION OF FAURE GNASSINGBE TO THE TOGOLESE PRESIDENCY An International Law Perspective KANIYE S.A. EBEKU NORDISKA AFRIKAINSTITUTET, UPPSALA 2005 Indexing terms Presidency Heads of state Inheritance Elections Democracy Constitutions International law Togo The opinions expressed in this volume are those of the author and do not necessarily reflect the views of Nordiska Afrikainstitutet. Language checking: Elaine Almén ISSN 0280-2171 ISBN 91-7106-554-7 (print) ISBN 91-7106-555-5 (electronic) © the author and Nordiska Afrikainstitutet, 2005 Printed in Sweden by Blomberg & Janson, Bromma 2005 Contents 1. Introduction 5 2. Politico-Constitutional Antecedents of the Recent Developments 7 3. Regional Instruments on Democratic Principles in Africa 11 4. Some Basic Principles of International Law: In a Nutshell 13 5. Faure’s Succession: Validity of the Removal of Fambare Ouattara Natchaba from Office 15 6. Faure’s Succession and Legality of Constitutional Amendment 16 7. Faure’s Succession and the Doctrine of State Necessity 18 8. Faure’s Succession and Regional Instruments on Democracy and Good Governance 21 9. Concluding Remarks 28 References 30 States…must…act in compliance with the law, and in particular with international law…That is the under- lying condition for the legitimacy of their action.1 Judge Gilbert Guillaume 1. Introduction In early February 2005 the Republic of Togo, a was overseas and this prompted, or, perhaps, en- small Francophone country in the West African abled the National Assembly to remove him from sub-region, came into the international spotlight office and replace him with Faure Gnassingbe, son as a result of what some have described as the un- of the late President Eyadema, who was a Member democratic and unconstitutional succession to the of Parliament and Government Minister. Further, country’s presidency by Faure Gnassingbe. On 5 the National Assembly amended the Constitution February 2005, the President of the country for 38 to remove the 60 days mandatory requirement for years, Gnassingbe Eyadema, died suddenly. He had the conduct of the presidential election, and provid- seized power in a military coup in 1967, and for ed for Faure Gnassingbe to remain in office as act- many years he ruled the country dictatorially, un- ing President until the expiry of his late father’s ten- til 1991 when international pressure forced him to ure in 2008. Evidence suggested that the country’s permit multi-party democracy. He won presidential military top brass, who strongly supported the late elections in 1993, 1998, and 2003, albeit in contro- President, were behind the political-constitutional versial circumstances. His current 5-year tenure was developments in Parliament. In fact, it was sug- to end in 2008 before his sudden death.2 gested that these parliamentary actions were done Article 65 of Togo’s 1992 Constitution (as in order to constitutionally legitimize Faure Gnass- amended by Law No. 2002-029 of 31 December ingbe’s succession to the presidency, as the military 2002)3 provides that where the office of President of had allegedly already appointed him President of the Republic becomes vacant as a result of the death the Republic of Togo a few hours after his father’s of a serving President, resignation or definitive in- demise. In any case, it is noteworthy that in accor- capacity, the presidential functions shall be tem- dance with section 64 of the Togolese Constitution porarily exercised by the President of the National Faure Gnassingbe – the ‘appointed President’5– was Assembly4 (as acting President) who must conduct duly sworn into office before the Constitutional a presidential election within 60 days from the day Court of the country. he entered into office. However, on the day Presi- In reaction, opposition groups in Togo and the dent Gnassingbe Eyadema died, Fambare Ouattara international community – spear-headed by Afri- Natchaba, the President of the National Assembly, can countries – rejected the manner of succession as unconstitutional, with some describing it as a 6 1. See Gilbert Guillaume, ‘Terrorism and International Law’ military coup d’état. Similarly, and more impor- (2004) 53(3) ICLQ 537-548, at 548. The author was former tantly for the present purpose, the Economic Com- President of the International Court of Justice. The article was the text of the 2003 Grotius Lecture delivered by the munity of West African States (ECOWAS) and the author at the British Institute of International and Com- African Union (AU) also concluded that the suc- parative Law on 13 November 2003. cession was a military coup d’état,7 charging that it 2. For more information on the recent politico-constitutional developments in Togo, see ‘Eyadema’s demise and succes- sion crisis’ (The Guardian, 10 February 2005); available 5. This was how some commentators described the interim online at: <http://odili.net/news/source/2005/feb/10/30. succession of Faure Gnassingbe to the Togolese presidency. html> (accessed 28/03/05). 6. While condemning the manner of succession as unconsti- 3. All references in this work to Togo’s Constitution relate to tutional and undemocratic, there were also countries which this document, except otherwise indicated. stopped short of describing the succession as a military 4. The original 1992 Constitution of Togo established a uni- coup. cameral Parliament (the National Assembly). But the ex- 7. According to some published accounts, soon after the death tensive amendments of 2002 added a second chamber (the of President Eyadema, the Chief of Staff of the Armed Forc- Senate). However, this chamber had not been constituted es of Togo said in a statement on State television that the before the demise of President Eyadema. country’s Constitution had been suspended and that Faure -5- Kaniye S.A. Ebeku was unconstitutional, undemocratic and a violation announced that he would conduct a presidential of regional-international instruments and political election within 60 days – so that Fambare Ouat- commitments in the field of democracy and good tara Natchaba could succeed the late President and governance of which Togo is a State Party.1 Based conduct the presidential election within 60 days on this perspective, the regional bodies (supporting as provided by the Constitution. As Togo did not opposition groups in Togo) insisted that the country heed the demands of the regional organizations af- should return to the path of constitutionality and ter several ultimatums, the organizations independ- democracy or face sanctions.2 For their part, the de ently announced the suspension of Togo from their facto authorities in Togo insisted that the succession respective activities and the imposition of sanctions of Faure Gnassingbe to the Togolese presidency and against the country, including a travel ban of the of- the concomitant constitutional amendment were ficials of the regime and an arms embargo.4 necessary in order to avoid a power vacuum and to Some non-African countries publicly welcomed preserve the State of Togo. However, after about two the imposition of economic and political sanctions weeks of consultations with officers of the regional on Togo to force her to comply with the demands of organizations and faced with the threat of sanc- the African governments and regional organizations; tions, Togolese parliamentarians re-amended the and some (such as the United States) also threatened Constitution to the original constitutional provision to review their relationships with Togo if the im- which obligates an interim President to conduct a pugned development was not totally reversed.5 presidential election within 60 days of his assump- The weight of regional and international pres- tion of office. Even so, Faure Gnassingbe was not sure on Togo eventually forced Faure Gnassingbe to required to vacate office – thereby suggesting that vacate the office of acting President of the Republic the law-makers have effectively and finally replaced of Togo on 26 February 2005. In his broadcast to Fambare Ouattara Natchaba (the original President the nation he stated tersely: ‘I’ve taken the decision of the National Assembly) with him.3 to step down from the office of [acting] President in However, this did not entirely satisfy African the interest of Togo…It’s now up to the National As- leaders and the regional organizations. While they sembly to elect a new head who will be interim [act- welcomed the reversion to the original constitution- ing] President of the Republic’.6 Without delay, the al provision, they insisted that Faure Gnassingbe Deputy President of the National Assembly, Abass must vacate office – notwithstanding that he had 4. See Gabi Menezes, ‘African Group Imposes Sanctions on Gnassingbe had been appointed Head of State. For his part, Togo’ (VOA News, 20 February 2005); available online at: the Prime Minister of the country allegedly announced in <http://www.voanews.com/english/2005-02-20-voa12. a radio broadcast the closure of the country’s airports, sea- cfm> (accessed 04/04/05). The Economic Community of ports and land frontiers ‘until further notice’, warning that West African States was the first to announce the imposi- the armed forces of the country were determined to main- tion of sanctions on Togo, and this was shortly followed by tain order. The order of closure allegedly had the effect of the African Union (AU). See ‘AU Set to Hold Meeting on shutting out the President of Parliament (the National As- Togo’ (VOA News, 24 February 2005); available online at: sembly) who was outside the country, as he could not return <http://www.voanews.com/english/2005-02-24-voa7.cfm> to the country. In a statement issued by ECOWAS after a (accessed 04/04/05). meeting of ECOWAS leaders held in Niamey, capital of Ni- ger Republic, on the developments in Togo, the organization 5. See Saxone Akhaine, ‘US, EU back sanctions on Togo, stated: ‘The heads of state strongly condemn the military Nigeria rules out war’ (The Guardian, 21 February 2005); intervention which led to Faure Gnassingbe being installed available online at: <http://odili.net/news/source/2005/ as the successor to the deceased President…They agree that feb/21/11.html> (visited 23/02/05).
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