Identifier
Created
Classification
Origin
09NOUAKCHOTT284
2009-04-21 11:13:00
CONFIDENTIAL
Embassy Nouakchott
Cable title:  

CONSTITUTIONAL COUNCIL DODGES JUDICIAL

Tags:  KDEM PGOV 
pdf how-to read a cable
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C O N F I D E N T I A L SECTION 01 OF 03 NOUAKCHOTT 000284 

SIPDIS

E.O. 12958: DECL: 04/21/2019
TAGS: KDEM PGOV
SUBJECT: CONSTITUTIONAL COUNCIL DODGES JUDICIAL
RESPONSIBILITY IN THE NAME OF STABILITY

REF: A. NOUAKCHOTT 266

B. NOUAKCHOTT 222

C O N F I D E N T I A L SECTION 01 OF 03 NOUAKCHOTT 000284

SIPDIS

E.O. 12958: DECL: 04/21/2019
TAGS: KDEM PGOV
SUBJECT: CONSTITUTIONAL COUNCIL DODGES JUDICIAL
RESPONSIBILITY IN THE NAME OF STABILITY

REF: A. NOUAKCHOTT 266

B. NOUAKCHOTT 222


1. Summary: In a speedy and little published decision,
Mauritania's Constitutional Council declared April 15 -- the
same day General Aziz resigned -- a "de facto" presidential
vacancy which, in keeping with the constitution, opened the
way for a transitional period led by President of the Senate
Ba M'Bare. According to the Council, this decision brings
the country back to a technical state of constitutional
order. Council President Ely Salem explained to Charge
d'Affaires the nuances of the decision and stressed the
difference between a "de facto" and a "de jure" presidential
vacancy. The former means there is a vacancy "in practice",
which does not question President Abdallahi's rightful claim
to the presidency, whereas the latter refers to a vacancy "in
principle," meaning that the president is unable to exercise
his functions for legitimate reasons. This decision, they
believe, both guarantees Mauritania's stability and takes in
consideration the reality of the situation -- that the
vacancy exists because the military prevents the president
from governing and General Aziz, the unconstitutional
president, gave his resignation. End summary.

--------------
ABDALLAHI IS STILL THE PRESIDENT BUT...
--------------


2. Charge d'Affaires and PolOff met April 20 with President
Salem to inquire about the presidential vacancy ruling.
Charge expressed his surprise at the rapidity of the
decision, particularly because he had met with Salem three
days prior and Salem had stated the Constitutional Council
had not yet been asked to rule on that question (Ref A).
Salem, through interpreter and Constitutional Council member
Taki Ould Sidi, explained the decision had been quick because
the law requires the Council to pronounce itself immediately
in matters pertaining to presidential vacancies. Comment: It
is likely that the Council was consulted about the decision
prior to General Aziz's resignation as President of the
Senate Ba M'Bare told Charge he was confident that if the
Constitutional Council was asked to declare a vacancy, it
would do so without hesitation. The decision was reached so
quickly that elected President Abdallahi and President of the
National Assembly Messaoud Ould Boulkheir did not have a

chance to transmit letters arguing that no presidential
vacancy existed. End comment.


3. Salem highlighted that the Council had declared a "de
facto" presidential vacancy as opposed to a "de jure" one.
He stressed the importance of the nuance as a "de facto"
vacancy does not question President Abdallahi's rightful
claim to the presidency. He explained the Council based its
decision on the fact that the elected president has been
forcibly prevented from exercising his mandate, and the
General who deposed him "resigned". Therefore, there is a
presidential vacancy "in practice" if not "in principle."
Salem stressed that, for the Council, Mauritania's rightful
president is Abdallahi and Aziz had no legitimate claim to
that title. He added that, in theory, the Council could have
ruled that there was no vacancy and President Abdallahi was
still in power but added such a ruling would be "theoretical"
instead of "practical" and could not be implemented.


4. When told by Charge that President Abdallahi and
President of the National Assembly Ould Boulkheir had
intended to raise the presidential vacancy matter with the
Constitutional Council right after Aziz's resignation but had
not had the time in view of the rapidity of the decision,
Salem responded that they still had not raised the matter
with the Council. Salem agreed that the opposition's main
short-term goal had been to see Aziz resign, so perhaps they
did not mind the Council's ruling (Comment: The FNDD and RFD
indeed have not made a big deal of the Council's decision).


5. Salem explained the mechanism by which the Council was

NOUAKCHOTT 00000284 002 OF 003


consulted. He said the Regime's Prime Minister Laghdaf
brought to the Council's attention that General Aziz had
stepped down from the High State Council (HSC) and that the
HSC was dissolved as a political unit and would only rule
over matters of security. Then, Laghdaf requested a return
to constitutional order that would lead to a transition
presided by the president of the senate and elections within
a three month period. The Council ruled there was a vacancy
and notified Ba M'Bare that he was interim president. Salem
stressed that this was an extraordinary case, something that
had never been seen in Mauritania because during the 2005
transition, the military junta had not resigned and no
military candidate had run for office.

--------------
WE DO NOT WANT TO FUEL THE FIRE
--------------


6. Salem explained that, when making a decision, the
Constitutional Council not only relies on the constitution
but also on Islamic law. Shari'a, he said, calls for
submission to the person in power to avoid conflict. He also
stated that the Council weights the political and social
impact of decisions against the greater good of the nation
and no decision that could have damaging effects is taken.
He stressed the Constitutional Council cannot take a decision
that cannot be executed, because such decision would bring
about problems rather than solutions. The reality, he said,
is that the rightful president is forcibly prevented from
exercising his functions by the military and the president
does not have the means to tip the balance of power.
Therefore, the Council decided that it was their
responsibility to establish the vacancy so that a return to
constitutional order could take place. "As soon as the
military told us they wanted to return to the constitution"
we could not let the opportunity pass, he intimated.

8. Salem reassured Charge that in spite of the short
deadline and the extensiveness of the decision, the
Constitutional Council had not been provided a draft and had
gone through the appropriate legal procedures to pronounce
the vacancy and draft the decision.


9. When Charge asked about the possibility of General Aziz's
candidacy being challenged on the grounds of Mauritania's
signature of the African Union charter, Salem said he could
not comment on Aziz's eligibility because the Council had not
yet gone through the appropriate reviews and procedures. He
explained the deadline for candidacies is April 22. Once the
Council publishes the final candidate list, candidates have
48 hours to question each other's eligibility. Salem did
divulge that Aziz' file included his military resignation but
noted that rather than resigning his commission entirely,
Aziz had been put in reserve status (a new status created by
the Parliament in January -- presumably for this purpose).
Salem noted that the constitution only prohibits active duty
military from running from office. Aziz's reserve status
therefore is not a constitutional impediment.


10. In response to Charge's question on whether this
decision ended President Abdallahi's mandate, the Council
stressed that they had only pronounced themselves on the "de
facto" vacancy and not on the "de jure" one. He reminded
Charge that nobody had ever raised that question. He
stressed that former President Ould Taya and President
Abdallahi were in the same situation because they had both
been deposed by a coup and nobody had yet asked the Council
to rule on their situation.


11. The Council president stressed that currently Mauritania
has returned to constitutional rule and that it is in a
transition period. PolOff pressed the issue of what would
happen if President Abdallahi came back to claim his rightful
place on the grounds that he had been prevented from
occupying his position by external forces rather than
intrinsic reasons. He again stressed that in the best
interest of Mauritania, the Council could not take a decision

NOUAKCHOTT 00000284 003 OF 003


that could not be enforced. He then reminded Charge that the
Mauritanian crisis is a political problem rather than a legal
one and that no legal solution could fix the problem.


12. Comment: Mauritania has "returned to constitutional
order," as Ba M'Bare outlined in his plan (Ref A),but the
essential components of the solution -- Abdallahi's
resignation, the formation of a government of national unity
and a new election date -- never materialized. Although the
exercise might be futile and risky, it would be interesting
if President Abdallahi were, before the election, to ask the
Constitutional Council to rule on his de facto vacancy as
well as ask one of the candidates to challenge General Aziz's
candidacy. From a Western perspective, Mauritania's
Constitutional Council willingness to not rock the boat with
"unenforceable rulings" is disappointing -- particularly from
an institution charged with constitutional determinations.

HANKINS