Wednesday, December 08, 2010

Cote D'ivoire: What Way Out of the Post-Election Imbroglio?

Source: The Institute for Security of Studies (ISS)

David Zounmenou and Issaka K. Souaré, African Conflict Prevention Programme, ISS Tshwane (Pretoria) office

On 2 December 2010, the head of the Independent Electoral Commission (IEC) of Côte d’Ivoire announced provisional results of the 28 November run-off presidential election. He declared the former Prime Minister, Alassane Dramane Ouattara as the winner with 54.10 per cent of the votes, against 45.90 per cent for the incumbent president Laurent Gbagbo. But soon as the head of IEC announced the results, the head of the Constitutional Council invalidated them and went ahead, the following day, to proclaim Gbagbo as the winner with some 51.45 per cent of the votes, having scrapped more than 400 000 votes from some constituencies in Ouattara’s strongholds in the north of the country.

Gbagbo’s Prime Minister since 2007 and head of the former rebels of the New Forces (Forces Nouvelles - FN), Guillaume Soro, has sided with Ouattara to whom he tendered his resignation as the legitimate president, and called on Gbagbo to step down. Meanwhile, both Gbagbo and Ouattara have sworn themselves in as head of state. Both have since nominated a Prime Minister to form a government, claiming they are the legitimate president. Senior officials of the Ivorian army have publicly backed Gbagbo, while the former rebels controlling the North since September 2002 have thrown their support behind Ouattara.

It was in this context that the African Union (AU), following an emergency meeting on 4 December, tasked former South African president, Thabo Mbeki, to mediate between the two parties in view of achieving a “legitimate and peaceful” solution. But before getting into the possible scenarios of Mbeki’s mediation, it is useful to start by clarifying a few things, particularly the arguments put forth by Gbagbo and his camp to refuse to acknowledge the results declared by IEC.

In a petition lodged to the Constitutional Council soon after the vote, the ruling party alleged that the election in many constituencies in the North were marred by violence; that their electoral agents were intimidated by supporters of Ouattara and armed forces of FN and that this facilitated massive rigging and ballot stuffing by Ouattara’s camp. As the Constitutional Council accepted their pleas and trashed votes in these constituencies, Gbagbo’s party argue that the declaration of his victory by the Council was legal and legitimate given that the Council is the highest court in land, at least when it comes to electoral matters. They further argue that the IEC went beyond the legal deadline of three days to announce the results, thereby rendering itself incompetent, and that in any case, its results were only provisional to be confirmed by the Constitutional Council.

It is true that Article 59 of the 2000 Electoral Code of Côte d’Ivoire makes the Constitutional Court the body with legal power to announce the final results of national elections. But there is no denying the fact that the 2010 presidential elections were held in the framework of the March 2007 Ouagadougou Political Agreement, initiated by Gbagbo, facilitated by Burkina Faso’s president Blaise Compaoré, and validated by the UN, ECOWAS and the AU on the request of the two parties to the agreement (Article 8.4 of the Agreement). To give effect to the provisions of the Agreement, President Gbagbo, after consultation with Soro, issued Ordinance no. 2008-133 on 14 April 2008 amending the 2000 Electoral Code.

In this ordinance, the aforementioned Article 59 was adjusted to read as follows: “…The Independent Electoral Commission announces consolidated provisional results at the national level […]. Within three days following the vote, and accompanied by supporting documents, the Independent Electoral Commission sends these results to the Constitutional Council, the Special Representative of the UN Secretary-General and the Special Representative of the Facilitator”. While this clause does not establish any hierarchical ordering of the powers of the three entities mentioned with regard to the proclamation of the definitive results, a logical deduction would be that the Constitutional Council still retains the prerogative of announcing the final results but based on a consensual tally approved by the Special Representative of the UN Secretary-General (SRSG) and the representative of the Facilitator. In other words, results announced by the Council alone without the approval of the other two certifiers does not stand legally.

Indeed, the SRSG had certified the voters’ list and the results of the first round in accordance with the amended Electoral Code. His certification of the results of the first round followed that of the Constitutional Council.

Regarding the alleged “massive rigging” in the north of the country, this claim is not supported by any international observer mission. After all, during the first round, Ouattara won in all the constituencies in question with more than 70 per cent of the votes. One thus wonders why he would have needed rigging in the second round to win the same. In a statement submitted to the UN Security Council on 3 December, the SRSG notes that he certified the results of the run-off poll proclaimed by the IEC not entirely based on the assessment of the latter, but also that of his own monitors. This led him to conclude that Gbagbo’s purported win “can only be interpreted as a decision having no factual basis”.

Based on the above, the question now is what to expect from Mbeki’s mediation. Clearly, Mbeki does not have much room to maneuver here. Unlike the situations in Kenya and Zimbabwe in 2008, the Ivorian case is clear: Ouattara won the poll and the international community supports him. Moreover, an army in control of half of the country is backing him. The first and best-case scenario would therefore be for Mbeki to succeed in persuading Gbagbo to step aside and abide by the verdict of the poll. But achieving this might prove to be quite difficult, as Gbagbo and his camp seem determined to preserve power at all costs.

If this peaceful scenario fails and no other arrangements that respect the will of the people can be found, Mbeki could report to the AU, which, in consultation with Ecowas, could decide to consider the situation as unconstitutional change of government by Gbagbo. This could be followed by one of three scenarios. The most obvious one would be for these institutions to suspend Côte d’Ivoire’s membership, impose targeted sanctions against those responsible for the hold-up, while remaining engaged in negotiations until the restoration of constitutional order. This will be in line with the Lomé Declaration of 2000 and the Constitutive Act of the AU. But this will have the risk of allowing Gbagbo to buy time and circumvent the measures. It might also leave uncertainty over the fate of Ouattara and his supporters.

The second scenario is to maintain the country’s recognition and membership, but lend that to Ouattara while withdrawing it from Gbagbo, which could entail the recall, by Gbagbo, of all his appointed diplomats that do not support the legitimate government. Negotiations would continue until he abdicates. But the downside of this scenario is the real possibility of dividing the country, with two governments and two presidents. The third scenario is therefore to recognize Ouattara and forcefully remove Gbagbo from power, as ECOWAS did to the military junta that overthrew the democratically elected government of Ahmed Tejan Kabbah in Sierra Leone in 1997 and the AU did to the regime of Col. Mohamed Bacar of the Island of Anjouan in the Comoros in March 2008. Legal basis for such an action may be found in a consolidated reading of Article 1(c) of the ECOWAS’ 2001 Supplementary Protocol on Democracy and Good Governance, which proclaims “zero tolerance for power obtained or maintained by unconstitutional means”, and Article 25 (d) of the ECOWAS’ 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security. This article considers, as one of the grounds for the application of the Mechanism, “the event of an overthrow or attempted overthrow of a democratically elected government”, which could clearly apply in this case.

Should all these measures fail or not be considered, one could fear the worst: an all out war. It is against this worst-case scenario that the AU and the rest of the international community seem to be working.