Balla Cisse. Credit: Maliweb.net
At a time when the world is facing an unprecedented crisis, the Malian State has decided to organise legislative elections, in the name of respect for inclusive national dialogue. The final results of which will be known in the coming days. At the outset, we can ask ourselves two questions:
Was it necessary to organise the legislative elections in the light of the Constitution?
As Mali is today affected both by the security inequity and the health crisis caused by Covid-19, the question arises as to the need to organise a legitimate legislative election. Admittedly, the Constitution does not legally provide for the postponement of the ballot - the extension of the term of office of the deputies in office is not permitted - as confirmed by the Malian Constitutional Court in its decision of 12 October 2018. The Court had considered that the magistrates strike should not disrupt the regular functioning of the National Assembly. Consequently, it had justified its decision on the grounds of force majeure caused by the social movement, by giving a favourable opinion on the request for an extension of the fifth legislature until the end of the first half of 2019, pursuant to article 85 of the Constitution. Since the Constitution cannot foresee everything, abnormal situations are likely to arise. It will therefore be appropriate to constitutionalise the possibility of extending the term of office for a reasonable period, in the name of parliamentary institutional continuity in Mali, in the event of unforeseeable crises. It was the inclusive national dialogue alone that decided to hold the legislative elections in April 2020, even though Covid-19 considerably disrupted their progress. However, in view of the health crisis, this measure could not prevail over the government's duty to protect the people. In other words, the recommendation of the dialogue is not an irrevocable act, nor an act of the constituent coming from the people. While politically there may be a political justification for maintaining the legislation in a particular context, this option remains questionable from a legal point of view. The consequences of Covid-19 on the holding of the legislative elections of 2020 reveal the limits of law and politics.
What legitimacy can be given to this election in a context of multidimensional crisis?
Mali, like its neighbour Guinea, although affected by the virus, did not consider it necessary to "postpone" the legislative elections, whereas Covid-19 may have consequences on the health of the voters. However, there is no ready-made solution to organise the said election without the risk of the virus spreading. Wasn't it necessary to consult between the political actors and the civil society in order to find solutions to postpone the legislative elections in Mali, in view of the health crisis which is so difficult to control?
Wasn't it necessary to consult between the political actors and the civil society in order to find solutions to postpone the legislative elections in Mali, in view of the health crisis which is so difficult to control?
Such a consensus would have been sufficient to suspend, until further notice, the recommendation of the inclusive national dialogue, and the postponement of the vote would have been wise, given the two crises, security and health, that Mali is facing. Thus, elected in such circumstances and by a small number of citizens, with a low turnout, the new National Assembly would not be immune to criticism on its democratic legitimacy.
Elected in such circumstances and by a small number of citizens, with a low turnout, the new National Assembly would not be immune to criticism on its democratic legitimacy.
Whatever the number of deputies obtained by the presidential party and its allies, the power of the President remains the same. Moreover, the idea of cohabitation is unlikely in Mali, since the President has the right of life over the National Assembly under article 42 of the Constitution of 25 February 1992. The author is Balla Cisse, PhD in public law; graduate in electoral administration and member of the Africa Strategy Network. He is the author of the thesis: Le juge, la doctrine et le contrôle des lois de révision de la Constitution, published in the collection "Logiques juridiques", L'Harmattan, 2020, 302 p.
Originally published in French by Maliweb.net: https://www.maliweb.net/contributions/les-scenarios-possibles-pour-lapres-legislatives-au-mali-2871294.html