Niger President Requests Constitutional Court to Retract

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TAGS: PGOV KDEM SOCI PREL NG
SUBJECT: Niger President Requests Constitutional Court to Retract
Its June 12 Ruling on Proposed Referendum

Ref: a) Niamey 466, b) Niamey 448, c) Niamey 433

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1. (U) Summary. Government of Niger (GON) Spokesperson Ben Omar
appeared on the June 24 Tele-Sahel evening news broadcast on behalf
of GON President Mamadou Tandja to announce Tandja's request that
the Constitutional Court retract its June 12 ruling that declared
unconstitutional Tandja's proposed referendum for a new
constitution. Were the Court to retract its ruling of two weeks
ago, that act would equate to declaring itself incompetent and,
essentially would demand that the Court resign. The request was
delivered the day following GON Prime Minister (PM) Seini Oumarou's
return to Niamey from the Economic Community of West African States
(ECOWAS) Heads of State Summit in Abuja, where he had assured other
Heads of State that the GON would respect the Nigerien Constitution.
End summary.

Yet Another Maneuver
--------------


2. (U) During the course of the June 24 Tele-Sahel (state
television) evening news broadcast, the news anchor informed the
public that GON Spokesperson Ben Omar had notified the station that
he would deliver a message on behalf of GON President Mamadou
Tandja. Once Omar appeared, he proceeded for some 20 minutes with a
convoluted statement that included a couple dozen clauses from the
Constitution and an equally long list of legal provisions to say
essentially that, in the President's estimation, the Court had not
followed the correct process to arrive at its ruling that found
unconstitutional the President's proposed referendum for a new
constitution. Further, the communication stated that "the President
is the guarantor of the respect of the Constitution" and that the
Court "has no power to rule over a presidential decree summoning the
electoral college for political elections or a referendum."

Supporters for Tandja's Extension Attack the Court
-------------- --------------


3. (U) Vitriolic comments against Niger's Constitutional Court and
its June 12 ruling continue. Tele-Sahel, now assigned by some the
monicker "Tele-Tazartche," continues to air editorials from
prominently known Nigeriens lauding the President's work and
questioning the Court's competency. (Note: "Tazartche" is Hausa
language for "let it continue." End note.) Private television TV
Dounia also has interviewed some leaders with opinions that the
President is above the Court and therefore rulings should not be
compelling on the President. Government-prompted rallies and
statements on public media have continued in various regions,
criticizing the Court and calling for its resignation or
dissolution.

Evaluation of Legal Precedent for Court Retraction
-------------- --------------


4. (U) In a Tele-Sahel interview, Djibrillou Mai Saley of the Paris
Bar Association (and a Tandja extended family member) cited as
precedent a 2003 review by the Court of three prior rulings, and
stated that the President may request the Court to review its June
12 finding against the proposed constitutional referendum.(Note: In
December 2003, following a claim lodged by the President, the
Constitutional Court rescinded three rulings: one issued September
4, 2002 related to provisions of the Inter-African Code of Market
Insurance (CIMA) (2002-14/CC); a second issued September 6, 2002
related to contracting procedures in the Public Market Code
(2002-15/CC); and a third issued September 6, 2002 on the state of
emergency declared by the President on July 31 and August 5, 2002,
regarding mutinies in the army (2002-16/CC). The Court declared
those three decisions "legally non-existent," ruling them "null and
void" for lack of a required quorum of at least five judges. End
note.)


5. (U) Article 115 of the Nigerien Constitution provides that
"Constitutional Court rulings shall not be subject to appeal" and
are legally binding on public authorities and all administrative,
civil, military, and jurisdictional authorities. However, it is
possible to request the Court to interpret its ruling if it appears
unclear to concerned parties.


6. (U) Some analysts question the admissibility of the President's
request on the emergency ruling and argue that the constitutional
provisions put forward would suffice to justify the Court's decision
on the proposed referendum. They criticized the President's latest

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maneuver as indicative of some interpretations that the President,
as "supreme judge," is above the Court and, consequently, could take
virtually any action... even violating the letter of the
Constitution. Viewing the role of the President as an omnipotent
entity may result in weakening the Constitutional Court, as it may
no longer be able to play its regulatory/arbitration function if it
reinforces the head of the executive beyond the letter and spirit of
the constitution.


7. (U) In 2002, as a result of disagreements between the Court and
the Executive due to the latter's attempt to influence or ignore the
former's decisions, the president and vice president of the Court
resigned (September 11, 2002). They stated that they could no
longer fulfill their duties in a context where the Executive wanted
them to violate the constitution. The government appointed a new
Court president and vice president and pressed the Court to issue
the December 2003 ruling that various universities and research
institutions in the region continue to criticize as a laughable
"judicial scandal." (Note: The president of the Court that issued
the December 2003 ruling is currently on the committee that the
President assigned the task to draft a new constitution. End
note.)

Reactions to the Latest Maneuver
--------------


8. (U) President Tandja's request for the Court to overturn its own
ruling occurred despite civil society and political parties' calls
for him to abide by the Court's decision. As a consequence, the
Social Democratic Convention (CDS),the second largest party of
Niger's ruling coalition, decided to quit the coalition and withdrew
its eight ministers from the President's Cabinet. The CDS has
formed an opposition coalition with other political parties and
civil society groups.


9. (U) Soli Abdourahamane, a former minister of justice and former
state prosecutor, described the President's arguments as
"ridiculous." He said, "in Nigerien law, there is no such thing as
a legally non-existent court decision." He also mentioned that the
President could not base his claims on the 2003 Court ruling,
because one of the Court's reasons for repealing its decision was
the lack of a quorum of at least five judges provided by the court's
by-laws. It remains to be seen if and how the Court will respond to
the President's request.

Duplicity in the Announced Signing of Election Decree
-------------- --------------


10. (U) Some observers see the announcement of the signing of the
decree to conduct legislative elections anticipated for August 20 as
an attempt by the President to divert civil society, political
parties and international attention from his referendum project.
The announcement of the signed decree occurred two days before the
ECOWAS summit in Abuja probably in order to delay possible sanctions
against Niger. Moreover, only subsequent to PM Oumarou's return
from Abuja did GON Spokesperson Omar announce the President's
request to the Court for a retraction of its ruling on the proposed
referendum for a new constitution.

ALLEN