Why no election now!

The Malian Constitution: the Inconvenient Necessity not to Violate
Diola Bagayoko, Ph.D.

Distinguished Professor of Physics and Chairman
Director, the Timbuktu Academy, Baton Rouge, Louisiana, USA
Sunday, May 21, 2012

Here are links to two documents, both in French, referred to in the following text:
The Constitution of Mali : The Constitution of Mali from February 1992.
The Agreement setting up the transition : ACCORD.CADRE: CEDEAO & CNRDRE issued April 6, 2012.

I am a physicist and not a lawyer. However, I studied logic very well. The last time I checked, laws,
including organic or supreme laws called constitutions, are in a logical framework. Without logic, most laws
reduce to ill‐conceived sets of propositions that rhyme with very little, with anything.

A fundamental purpose of a constitution is to protect a country and its people against the evolving
tendencies, interests, prejudices, or other dispositions of some individuals or groups. As such, a constitution is
not to be violated for the convenience of any groups, however vocal or threatening they may be – if a
democracy is to exist. Over time, changes to the constitution may be made, following modalities described in
the constitution itself. In the case of Mali, the 1992 Constitution requires a 2/3 affirmative vote of the National
Assembly and a subsequent approval by the people through a referendum. Before someone suggests that we
should change the Constitution to solve our current problem, let me underscore that the present Constitution of
Mali states that no revision can be started or pursued when the territorial integrity of the country is attacked
(Title VX, Article 118).

So, we cannot revise the Constitution now. The question then arises as to the way out of the apparent
impasse in which we seem to be. The answer is actually very simple: We simply have to follow the Constitution.

We first note concerns for the Constitution before the resignation of the President of the Republic of
Mali. Some observers were alarmed by the fact that despite the displacement of over 120,000 Malians in the
North, with over 60,000 in refugee camps in neighboring countries by the middle of March, the Government, the
National Assembly, and most political parties did not seem to see that holding the presidential and other
elections in April would have violated the Constitution! Article 26 (Title II) states that the national sovereignty
belongs to the people of Mali and all the people of Mali. It adds that no fraction of the people and no individual
can hijack its exercise. Clearly, hundreds of thousands of people from the North of Mali, suffering in
unspeakable conditions, were going to be excluded from a true exercise of sovereignty by the April elections –
irrespective of what any self‐righteous individuals or groups may claim to the contrary. Article 27 (Title II)
reinforces the point above by asserting that suffrage is universal, equal and secret. The universality was
indubitably going to be violated by the April elections, whether someone understands it or not. In conclusion,
the April elections would have selected a president and deputies in violation of the Constitution. From the point
of view of international observers, the resulting government would have been that of the South, by the South,
and for the South of Mali. From the point of view of some of us (Malians), the acts of frustration by members
of the Military, on March 21 and 22, saved Mali from itself! While one may use “Coup d’Etat” to describe these
acts, there are technicalities to take into account. After all, with the help of the Economic Community of West
African States (ECOWAS), the president resigned; technically, he was not overthrown in a Coup d’Etat! No
attempt is made here to say that the acts in question were not crimes; the aim of this paragraph is to see real
nuances as opposed to a simplistic utterance. After all, these “crimes” prevented a greater one of de facto
division of Mali, unwittingly or by design, by political entities in the South (principally in the Capital).

In case someone is wondering what could have been done in mid March concerning the elections, the
answer is that the Constitutional Court is the one that should have been called into session to find the way
forward, in light of the impossibility of holding the elections in April. It would have been evident to that Court
and to anyone else who wanted to read carefully, that the president’s term was going to end and that the
President of the National Assembly had to be the Interim President of the Republic. The same Constitutional
Court would have seen, given the sacro‐saint nature of universal suffrage in a democracy, that the duration of
the transition was going to be more than 40 days – irrespective of the eagerness of some political entities, in the
name of democracy, to violate the Constitution. Indeed, the clause that makes the President of the National
Assembly the Interim President of the Republic is independent of the one that says that the elections have to be
held within 40 days. Hence, the physical and material impossibility of implementing this 40 day clause does not
affect in any way the one designating the Interim President of the Republic. The spirit of the Constitution
relative to the 40 days presumes territorial integrity, peace in the land, and the ability to handling the logistics
associated with organizing valid and credible elections. As for those who argue that they want anyone as Interim
President except the President of the National Assembly at the time of the events, they simply need to read
Article 26 that states that no fraction of the people and no individual can hijack the exercise of sovereignty.

What differences are there between the content for the above paragraph and the proposal of 12
months of transition of ECOWAS? Absolutely nothing major; ECOWAS fixed a limit on the duration of the
transition while the above paragraph did not. The spirit of the Constitution also presumes that the permanent
vacancy would occur while there remains two months or more in the mandate of the president whose position
is vacant on a permanent basis. If that were the case, then Article 38 would have dictated that the Government
remains unchanged, except for the president – as it says that the Interim President cannot name or fire the
Prime Minister. It also says that the Interim President cannot name new ministers on recommendation of the
Prime Minister! The actual end of the mandate of the president who resigned is what permitted the nomination
of a Prime Minister and ministers for the transition period. Unlike Article 38, Article 41 (no referendum), Article
42 (no dissolution of the National Assembly) and Article 50 (No exceptional powers for the president) apply
rigorously during the transition period.

A national convention or forum cannot select an Interim President other than the President of the
National Assembly, according to the Constitution. The clause of the Constitution determining the Interim
President of the Republic does not have any time table organically included in it. The limit of 40 days will
necessarily applies if it is not physically and materially impossible to organize and to hold presidential elections.
The problem is that the occupation of 2/3rd of the territory of Mali does not allow elections to be held – given
that suffrage is universal and that no fraction and no individual can hijack the exercise of sovereignty. Once the
territories in the North are retaken, as they will be, elections still cannot be held unless electoral registration and
electoral card issues are resolved for the more than 300,000 Malians displaced [as of May, 2012) in the North,
with more than 100,000 in refugee camps in neighboring countries. Let us note that any convention to select an
Interim President will divide Mali, as no one can claim the proper representation of the collectivities of the North
by individuals selected by the Malians in the North! It is such a catastrophic division that some of us think the
events of March 21‐22 prevented from occurring!

Even though the above points elucidate some critical issues relative to the present situation in Mali, it
behooves the Transition Government to call on the Constitutional Court to render a written and fully justified
decision, as soon as possible, for Malians and the international community (i.e., ECOWAS, African Union, UN,
and others). Indeed, Article 91 (Title IX) clearly states that decisions of the Constitutional Court are not subject
to any appeals, and hence are final. Article 121 (Title XVII) does state that the people have the right to civil
disobedience for the preservation of the republican form of the State. A failure to read the Constitution properly
and a refusal to apply it are both acts against the republican form of the state.

As far as the Constitution is concerned, there are very many different and critically important roles
CNRDRE could play in restoring the State (including reclaiming the North), the strengthening of democracy (by
following the Constitution), and assisting the interim government (and Assembly) in ending the murderous
pillage of the resources and treasury of the Mali and of international aid to Mali with the extensive and
murderous corruption. It is hoped that this path will be taken as of Monday as opposed to any other.

Again the documents:
The Constitution of Mali : The Constitution of Mali from February 1992.
The Agreement setting up the transition : ACCORD.CADRE: CEDEAO & CNRDRE issued April 6, 2012.