CURRENT STATE OF AFFAIRS IN BENIN
“THE BACKSLIDING OF DEMOCRACY AND THE DECONSTRUCTION OF DEMOCRATIC INSTITUTIONS”
INTRODUCTION
Benin’s recent political history is marked by the most blatant democratic setbacks that French-speaking Africa has experienced over the past ten years or so.
For many African and international observers, Benin, once known as a model of democracy in West Africa, is now among the bad pupils in the African democracy classroom.
In the space of four years, Benin has achieved the feat of embarking on the most serious democratic retreat in modern African history.
The regime that emerged from the presidential election of March 2016, despite having been elected on the promise of consolidating a lasting democracy, has systematically weakened and undermined the democratic foundations that have been laid since the historic National Conference in 1990.
The Constitution of 11 December 1990, adopted by referendum, created a democratic state with institutional checks and balances, built around a presidential regime and strong counter-authoritarian institutions.
The major international charters and declarations protecting human rights were incorporated into that Constitution.
The judiciary is said to be independent, headed by a Supreme Court, a court of cassation handling legal matters, an administrative court and a court to deal with municipal electoral disputes.
The legislature, embodied by the National Assembly, has passed through eight terms since 1991, often marked by a degree of antagonism towards the executive. It thus saw itself as an institution of checks and balances.
The current National Assembly, elected on 28 April 2019, is condemned as being illegitimate, since it was appointed through elections in which the opposition did not take part.
The Constitutional Court, the real regulator of the functioning of Benin’s institutions, is the constitutional judge and the electoral judge of parliamentary and presidential elections.
The Autonomous National Electoral Commission (ANEC) was created by law to hold and organize elections, thus preventing them from being influenced by the Beninese executive.
The major public and personal freedoms were upheld by the Constitution of 11 December 1990 and have been generally respected since 1991.
It is this institutional system, based on the National Consensus, a principle that has taken on constitutional force, that has enabled the “once” sick child of Africa to be kept socially and politically quiet.
Thanks to these institutions that everyone accepted, ever since the holding of the first presidential elections of the democratic era in 1991, Benin has known regular democratic changes of leadership without any serious challenges or electoral crises
The Presidency of the Republic has thus been held by:
Nicephore SOGLO, the first president of the democratic era, from 1991 to 1996,
General Mathieu Kérékou, who served two successive presidential terms from 1996 to 2006 in the era of democratic renewal,
Thomas Boni Yayi, who served two successive terms from 2006 to 2016,
Patrice Talon, the president elected in April 2016 for a term that was to end in April 2021.
Voted in on the electoral promise to affirm and reinforce the Beninese democratic model, President Patrice Athanase Guillaume Talon has been doing his utmost since 6 April 2016 to implement a policy of dismantling Beninese democratic institutions and curtailing public and personal freedoms.
Upon his return from exile in 2015, though, Patrice Talon embodied the expectations of a necessary change of leadership and presented himself then as the “breakthrough” candidate, the only one capable of beating the candidate put forward by President Boni Yayi.
Elected after winning more than 65% of the votes, President Patrice Talon was flatteringly reputed to be a self-made man and businessman. His inauguration speech gave rise to hope and expectation among the people of Benin.
In solemn and ringing tones, the newly elected President set out the key points of his political and economic policies in the following terms:
“(…) Taking stock with you of the exceptional journey that is ours, I would like to acknowledge and commend Benin’s democratic roots, which thus prove, once again, its capacity to overcome the challenges with which it has always been con- fronted. (…)
“That is why I will make my single term a moral experience by exercising state power with dignity and simplicity. I will carry out my duties as President of the Republic with humility, self- lessness and sacrifice for the well-being of all. (…)
“To achieve this, I intend to re-establish the rule of law, one that respects people and property. I am committed to promoting an independent system of justice, the same for all, accessible and efficient, as well as to revitalizing and modernizing public administration. (…)
“I will endeavor to ensure and preserve the freedom of the press as well as equal access for all to the press media outlets. I will ensure the protection of private initiative and the private sector as the main tool for development.
“I will endeavor to accelerate and strengthen the decentralization process by including it in each of the actions that I will undertake. I will make our democracy a real instrument of international cooperation, for integration and influence so as to mobilize resources for the development of our country.
“I will work to reduce, and then to eradicate, hardship by ensuring, from now onwards, the protection of the most deprived and access to water and energy for all as inalienable rights and a factor for development.
“I will give priority to reorganizing the healthcare system so as to provide our fellow citizens with more effective and more inclusive health coverage. (…)
“Finally, I will turn the fight against corruption into a constant, everyday struggle that will not exhaust the tire- less efforts of the justice system and civil society to put an end to impunity. (…)”
Extracts from the inaugural speech delivered on 6 April 2016 in Porto Novo.
JUSTICE TAILORED TO SERVE POLITICAL ENDS
The elected candidate made a solemn commitment to promote an independent system of justice, the same for all, accessible and efficient, as well as to revitalize and modernize public administration. The reality, five(5) years on, is quite different, and the independence of the judiciary is merely an illusion in Benin.
The Superior Council of the Magistracy has undergone a structural and functional reform that has resulted in appointments to it being politicized and magistrates being dominated by the executive.
The appointment of magistrates is no longer subject to the usual criteria of competence and professional experience.
Transfers of magistrates are now carried out in violation of the security of tenure of sitting judges.
Fear and psychosis are now prevalent among magistrates, and their unions, very active in the past, have been silenced. Intimidation and persecution are the daily lot of President Patrice Talon’s political opponents.
The opportunistic creation of a special court, the Court for the Punishment of Economic Crime and Terrorism (CRIET), has only reinforced the suspicion that justice is being tailored to serve political ends.
This suspicion that Beninese justice has been turned into an instrument of the state is bolstered by the Beninese state’s distrust of the African Court on Human and Peoples’ Rights in ARUSHA (ACHPR) and its numerous decisions that, inter alia, require Benin to annul CRIET decisions.
It should be recalled that the ACHPR delivered a judgment on the merits of various cases on 29 March 2019 whereby the judges in ARUSHA held that the State of Benin and the CRIET were guilty of violating eight (8) fundamental rights of citizens who had applied to it.
Apart from the violations of the rights of the defense, the ACHPR ordered the respondent state, Benin, to adopt all necessary measures to annul judgment No.007/3C.COR. on 18 October 2018 by the CRIET, so as to void all its effects, and to report to the Court within six (6) months from the date of notification of the said ruling.
Yet, against all expectations, it is clear that the State of Benin has not complied with the ACHPR decision.
Benin has thus deliberately refused to honor its international commitments and the decision of the ACHPR, thereby violating the African Charter on Human and Peoples’ Rights and upholding the artificial, illegal and infamous conviction of a citizen exonerated by an international court.
To round off this operation to isolate Benin judicially and to escape rulings by the international justice system, the government of Benin announced, on 23 April 2020, its decision to withdraw from the 1998 protocol relating to the African Charter on Human and Peoples’ Rights, which established the African Court on Human and Peoples’ Rights.
By virtue of this decision, the government repudiated its declaration of acceptance of the African Court’s jurisdiction empowering citizens and NGOs to appeal directly to the African Court in the event of any violation of the rights and freedoms guaranteed by the African Charter, which was ratified by Benin and incorporated into its Constitution.
Benin’s withdrawal from the mechanism of Article 34.6 of the 1998 Protocol sounds the death knell for Beninese access to independent justice.
Deprived of their rights by a national justice system that is submissive and enacts orders from above, the Beninese are now barred from obtaining justice.
THE PARLIAMENTARY ELECTION ON 28 APRIL 2019: BENIN’S AUTHORITARIAN SHIFT
The culmination of the strategy of democratic destruction that has been in progress since April 2016 has to be the holding of the legislative elections on 28 April 2019 .
These parliamentary elections saw the opposition parties excluded from the hustings, with the complicity of the Constitutional Court.
Popular demonstrations of anger have been punished by arbitrary arrests and suppressed with bloodshed.
Ever since the elections, the country has been plunged into a post- electoral crisis.
Numerous initiatives taken by the Beninese clergy, other religious congregations and the international community to resolve the crisis have come up against rejection by the incumbent regime.
Benin’s National Assembly is now composed exclusively of deputies (83) from the two parties that support the head of state, which were set up under his firm control in 2017.
The opposition does not have a single deputy, since it was excluded from the poll by a political decision.
The parliamentary elections in April 2019 sounded the death knell for democratic progress in Benin and marked the authoritarian shift of the political regime in power since April 2016, which now openly acknowledges its dislike of freedom and democracy.
The next step was the constitutional revision of 1 November 2019. On the night of 31 October–1 November 2019, the 83 deputies backing the Beninese executive voted unanimously (yes, all with- out exception) for a constitutional revision that, contrary to the allegations of the regime’s supporters, goes further than a mere tidying up of the founding text of 11 December 1990. Law No.2019-40, which revises Law 90-032 of 11 December 1990 (effectively the Constitution of the Republic of Benin), actually ushers in a pronounced shift towards a conception of the Republic differing from the one that emerged from the Conference of the Living Forces of the Nation. This happened without any parliamentary debate and without any public discussion that involved the people and civil society.
As was to be expected, the Constitutional Court, chaired by the head of state’s former lawyer, checked the law’s compliance on 7 November 2019, and immediately afterwards the President of the Republic promulgated this new constitution on 8 November 2019.
It should be noted that this constitutional revision stems from a flagrant violation of Benin’s constitutional rules.
Put simply, the Constitution, the supreme and founding text of the Republic, cannot under any circumstances be revised according to an emergency procedure that is reserved only for ordinary laws.
While carrying out its constitutionality check, and even if it were not explicitly approached on that matter, the Constitutional Court could not fail to abide by the provisions of the National Assembly’s Standing Orders, which form part of the constitutionality corpus.
The office of the Constitutional Court should not restrict itself to checking compliance with the standard rules (territorial integrity, secularism and the republican form of the state, the 5-year presidential term renewable once, the lower and upper age limit and the presidential type of government).
The High Court should have raised the matter automatically and checked for compliance with legislative procedure.
One can only regret that, voluntarily or otherwise, the Constitutional Court narrowed the scope of its constitutionality check.
The approval of the new Constitution is marred de facto by a denial of constitutional justice.
Did the National Assembly that emerged from the disputed parliamentary elections of 28 April 2019 have the legitimacy and the mandate to revise our Constitution?
It was a disputed parliament, suspected of being illegitimate, that revised the Constitution that the people had chosen freely and by referendum on 11 December 1990.
The Assembly could not look to a political dialogue arranged between the pro- government political parties alone in order to shore up the claim to be a National Consensus.
The sidelining of civil society, the lack of discussion and public debate and the exclusion of the Clergy from the National Dialogue have finally dampened all hope of seeing the country come together to discuss the causes of the post-election crisis.
In the context of the elections of 28 April 2019, the bloody repression of the demonstrations on 1 and 2 May 2019 and, more generally, the government in power since 2016, any revision of our Social Contract could only proceed through a nationwide referendum.
MOVING TOWARDS A DIFFERENT REPUBLIC
The preamble to the Constitution of 11 December 1990 recalls:
“Thus, by restoring confidence to the people, the Conference of the Living Forces of the Nation, held in Cotonou from 19 to 28 February 1990, made national reconciliation and the advent of an era of Democratic Renewal possible. The day after the Conference, WE, THE PEOPLE OF BENIN, (…)”
The founding document of 1990 thus engraved popular support for the social contract in marble. This popular support was then to be validated by a constitutional referendum.
The PEOPLE are at the heart of the Beninese electoral process and must remain so.
Following the revision of 1 November 2019, the new Constitution was imposed on the people of Benin without any national consensus and without their support.
The purpose of this constitutional revision (fast-tracked, secret and exclusive) is to be found in the far-reaching changes in the institutional and democratic system that it ushers in.
The revision resulted in the redrafting, creation or revision of some fifty articles of the constitution: 5, 15, 26, 41, 42, 43,44, 45, 48, 49,
50, 52, 53, 54, 54-1, 62, 62-1, 62-2, 62-3, 62-4, 80, 81, 82, 92, 99,
112, 117, 119, 131, 132, 134-1, 134-2, 134-3, 134-4, 134-5, 134-6,
134-7, 143, 145, 151-1, 153-1, 153-2, 153-3, 157-1, 157-2 and 157-3
in our constitution.
It amounts clearly and unquestionably to a major overhaul of our Social Contract and a reshaping of our institutions. In fact, no answer will be found to the question of how it came to be necessary for Benin:
- to have a Vice-President elected alongside the President, but without any sovereign function, whereas the arrangements for a presidential stand-in as such are known and have never been implemented;
- to give the President of the Republic alone the
power to ratify loan agreements and then to report 90 days later to an Assembly that will have no other choice than to acknowledge the possible damage;
- to adapt elective terms of office and to hold cou- pled or grouped elections at the risk of adapting institutions and increasing their submission to an increasingly strong Executive;
- to force any presidential election candidate into a political sponsorship with confiscatory procedures, whereas the presidency should not be closed to anyone nor subjected to a race for sponsorship with its risks of political corruption…
Benin is no longer the republic of 11 December 1990, where there was a balance of powers and the popular will was taken into account. It is a different republic that is underway in Benin, involving a constitutional revision without the people that leads de facto to a constitutional revision against the people.
THE END OF DECENTRALISATION AND LOCAL GOVERNANCE
Consigned to oblivion is the elected President who solemnly declared: “I will endeavor to accelerate and strengthen the decentralization process by including it in each of the actions that I under- take.”
Benin’s defiance of international justice could also be seen in the municipal elections of 17 May 2020.
The Beninese executive did, in fact, uphold its local elections of 17 May 2020 despite the ACHPR ruling of 17 April 2020 ordering the State of Benin to suspend the organization of those elections until the ARUSHA court had delivered a judgment on the merits of the case.
The local elections were upheld despite a second ruling, dated 5 May 2020, in which the same court, the ACHPR, ordered the State of Benin to adopt all necessary measures to allow any Beninese citizen to take part in local elections.
More precisely, the Court found in favor of the Applicant and ordered the State of Benin to take all the requisite steps to properly remove any administrative, legal or political obstacle to candidacy at the next communal, municipal, district, town or village elections.
The Beninese authorities have clearly stated that they do not intend to obey these rulings, referencing a mixed bag of national sovereignty, the court’s interference in the country’s domestic political calendar, and compliance with the constitution.
So, the self-styled democratic state of Benin is now defying the African Court of Human and Peoples’ Rights. This legal situation of a state that has become a persistent offender is not to be taken lightly.
Still excluded from the electoral process, most of the opposition parties (those that remain, that is) and many citizens have called on voters to boycott the elections.
On the night of 21 May 2020, four days after the disputed elections, the ANEC announced an incredible turnout of 49.14%, a particularly surreal figure even if we suppose that the closeness of those elections may have mobilized slightly more Beninese than for the parliamentary elections of April 2019.
The votes were then allocated as follows:
39.97% of the votes were cast for the presidential Progressive Union party
37.38% were for the Republican Bloc presidential party 14.98% went to a “supposedly” opposition party, the FCBE 5.49% were cast for the presidential PRD party 2.17% went to the presidential UDBN party.
These last two political parties (the PRD and the UDBN) were eliminated by the rule known as the 10% of national representation threshold, a quota established by Benin’s new electoral code.
Thus, many voters, especially in the administrative capital of Benin and in the country’s most populous cities, saw their massive vote for those two parties purely and simply annulled and obliterated on the grounds that their party list did not pass the 10% national threshold.
In fact:
The UDBN topped the local ballot by a wide margin in Abomey- Calavi with 54,066 votes, which would have enabled it to take control of one-third of the municipal council and have a say in the nomination of the mayor.
The PRD received 136,593 votes in Porto Novo, the administrative capital, which would have enabled it to govern the city.
This grotesque and undemocratic situation is as politically outrageous as it is legally questionable.
The citizen is stripped of the right to vote.
Doubt is being cast on the very essence of democracy and the legitimacy of elected officials, but the damage goes even deeper…
While the results of the local ballot were being announced and some mayors and deputies had been elected by their peers, the disputed National Assembly voted in law 2020-13, by an emergency procedure, to supplement and interpret the electoral code.
This new text poses the problem of legal certainty, since the law is not retroactive.
It clearly amounts to a redrafting of the original rules, a breach of equality before the law and an undermining of local democracy.
In formal terms, it should be stated at the outset that this law is de- scribed as “On interpreting and supplementing Law No.2019-43 of 15 November 2019 on the electoral code”.
It is not just an interpretive law but a law supplementing the provisions of the old code, which they thus replace.
In fact, the old law is supplemented by the creation of new provisions, new rights and new mechanisms.
But a “simple” interpretive law does not create new rights.
On this first count alone, Law 2020-13 of 2 June 2020 is a flagrant violation of the essential principle that a law cannot be retroactive.
The very title of Chapter II buries the notion of interpretive law, since it is no longer a question of the election of the mayor and his deputies but “of the designation or election of the mayor and deputy mayors”. In effect, a new Article 189 is established, providing that:
“The mayor and his deputies are appointed by the party that has gained an absolute majority of councilors.
“If there is no absolute majority, the mayor and his deputies are appointed by all the parties that constitute an absolute majority when they sign a municipal governance agreement. Notification of the municipal governance agreement is sent to the supervisory authority.”
This is a far-reaching redrafting of a law that is said to have been interpreted, since the old Article 189 stipulated that: “The mayor and his deputies are elected inside the Communal Council by a secret uninominal ballot and by an absolute majority.
“The candidate for the office of mayor or deputy mayor is presented by the party that has gained an absolute majority of the councilors.” So the mayor and his deputies are no longer elected by the municipal or communal council: they are appointed, co-opted or nominated by the majority party. It is no longer an interpretation, it is not even a supplement, it is an outright redrafting of the law. It is also a far-reaching challenge to local democracy, which becomes a matter for parties and not for citizens through their elected representatives: local democracy is dead.
Local democracy is dead and replaced by the dictatorship of political parties.
THE RETREAT OF PUBLIC AND PERSONAL FREEDOMS
The space of four (4) years, the stunned and bruised Beninese have witnessed the suppression of their public and individual freedoms (thought, expression, demonstration, assembly, press, trade un- ions, etc.).
It has been noted that the Beninese authorities have violated the rights to freedom of expression and peaceful assembly in the context of parliamentary elections.
International observers have seen the security forces using excessive force against demonstrators with complete impunity.
Protesters and passers-by have been killed, and many others have been arbitrarily arrested and detained.
Journalists are particularly targeted by government authorities, leading to their arrest and sentencing to long prison terms.
The following list is not exhaustive, but in Benin today it is impossible:
- to speak in public to more than four people, otherwise one risks being regarded as involved in a conspiracy;
- to administer a public network without bearing criminal responsibility for the comments made by all members of the network;
- to contradict a minister or prosecutor without being afraid of ending up in prison.
In short, the justice system and iniquitous laws now deprive Benin’s people of the freedom to express themselves.
How can one keep democracy alive, when it is forbidden to meet up with others, when there are no more trade-union activities, when the right to demonstrate is reduced to nothing and the right of association is virtually given only to political parties ? And that’s not all!
The state’s functional administration has gradually disappeared through the transfer of state, or even sovereign, powers to agencies created at the Presidency of the Republic and under the sole control by the Beninese head of state.
Decentralization, which was only at an embryonic stage, has just been buried by the grotesque holding of a local election, in the midst of the COVID 19 pandemic, and by the amending of electoral laws, after the electorate had voted, authorizing the appointment of mayors and deputies by political parties and no longer by balloting inside the municipal council.
Having taken the oath on April 6, 2016, the constitutional mandate of Mr. Patrice Talon will end on April 5, 2021 at 00 h. However, the Council of Ministers dated Wednesday November 25, 2020 set the first round of the presidential election for Sunday April 11, 2021. And this, in flagrant violation of the Constitution of December 11, 1990 and the orders of the African Court of Peoples’ Human Rights (ACHPR), demanding the restoration of democracy before any election in the country.
By setting the 1st round at April 11 and possibly the second round at April 25 for the new President of the Republic to take service on May 23, 2021, the power of Mr. Patrice TALON fraudulently extends the current mandate of 45 days, thus creating a serious unprecedented legal vacuum. This is a confiscation of state power, however prohibited by the Basic Law of Benin. This is a new provocation from the Beninese authorities, an institutional robbery
Indeed, until 2016, after the Sovereign National Conference of 1990, Benin was able to organize a democratic political life, with regular votes and alternations without violence. The Constitution of December 11, 1990 guarantees multipartyism and freedom of expression. The opposition parties have been respected and have always been able to stand freely in elections, thus offering Beninese citizens real political alternatives.
Accepting today that the first round of the presidential election be held on April 11, in violation of the Constitution of December 11, 1990, the only one recognized by the people of Benin and confirmed by the ACHPR, is to validate the current dictatorship in Benin. This Constitution is thirty (30) years old today and turning a blind eye to the atrocities of this regime means giving the green light to Mr. Patrice Talon so that he remains in power for the number of years he wants, with even more serious crimes and human rights violations. Supporting this fraud is to be complicit in the consequences of such a despotic attitude for Benin and the West African sub-region; it is to encourage President Patrice TALON to force a passage and twist the arm of his people to confiscate power for life.
On Friday February 12, 2021, the ongoing democratic backsliding in Benin reached another millstone when the Autonomous National Electoral Commission of Benin (CENA) in doing President Patrice Talon’s betting, announced its excluded all oppositions candidates from the upcoming April 11, 2021 presidential election, including the country’s first female flag bearer for a major opposition party, the candidate Reckya Madougou –Les Démocrates, the country largest opposition party who’s honorary chair is none other than the former president Boni Yayi; only to allow in addition to President Talon candidacy, only two other candidates, handpicked, groomed and financed by President Talon.
HUMAN RIGHT ABUSE AND REPRESSIONS
In recent days we have witnessed an unprecedented tightening of the repression against civil society, human rights defenders, political activists and journalists. The latest case is that of the former minister and opponent Ganiou Soglo, son of the former Head of State, Nicéphore Dieudonné SOGLO, who was riddled with live bullets in a locality not far from Cotonou (Zinvié), Friday February 5, 2021, around 8 p.m.
In Benin, President Patrice Talon kills with live bullets, imprisons and forcibly exiled to stay in power. He has completely disconnected democracy and holds the country with an iron fist, suppressing, in blood, sweat and tears, all critical voices.
All those who oppose its authoritarian rule are killed or persecuted. Between 2019 and 2020, the army and the police massacred civilian populations in several localities of the country (Cotonou, Tchaourou, Savè, Kilibo, Bantè, Kandi, etc.). Other citizens, because of their political views, have been coldly murdered. Prudence Vioutou Amoussou, Ambroise Biaou, Fidèle Combetti, Théophile Dieudonné Djaho, Bio Zakari Adam and others will never see their families again.
Political opponents, web activists, independent journalists and human rights defenders who could not be killed are thrown in prison, others tortured: Laurent Metongnon, Ferdinand Combetti, Hamiss Dramane, Edouard Kohou, Serge Christian Yededji, Razack Amadou and Jean Kpoton are still being held in prison, sentenced to severe prison terms.
This situation has pushed thousands of Beninese, men, women and children, to flee the country to take refuge in Togo, Ghana, Nigeria, Niger, Burkina Faso, Algeria, Morocco, Guinea Conakry , in Ivory Coast, in France, in Belgium, in Switzerland, in Spain, in Germany, in the United States, in Canada, etc. Some found it difficult to return to these destinations on foot or by sea, and others by air.
A forced exile, experienced as a last burst of survival and the only recourse to safeguard their opinions: Sébastien Germain Ajavon, Komi Koutche, Valentin Agossou-Djenontin, Léonce Houngbadji, Bertin Coovi, Fatouma Amadou Djibril, Léhady Soglo, Joël Ajavon and Abdou Raman Soumanou, to name just a few.
2/18/21
CURRENT STATE OF AFFAIRS IN BENIN
“THE BACKSLIDING OF DEMOCRACY AND THE DECONSTRUCTION OF DEMOCRATIC INSTITUTIONS”
BACKGROUND INFORMATION FOR THE NYCFPA
INTRODUCTION
Benin’s recent political history is marked by the most blatant democratic setbacks that French-speaking Africa has experienced over the past ten years or so.
For many African and international observers, Benin, once known as a model of democracy in West Africa, is now among the bad pupils in the African democracy classroom.
In the space of four years, Benin has achieved the feat of embarking on the most serious democratic retreat in modern African history.
The regime that emerged from the presidential election of March 2016, despite having been elected on the promise of consolidating a lasting democracy, has systematically weakened and undermined the democratic foundations that have been laid since the historic National Conference in 1990.
The Constitution of 11 December 1990, adopted by referendum, created a democratic state with institutional checks and balances, built around a presidential regime and strong counter-authoritarian institutions.
The major international charters and declarations protecting human rights were incorporated into that Constitution.
The judiciary is said to be independent, headed by a Supreme Court, a court of cassation handling legal matters, an administrative court and a court to deal with municipal electoral disputes.
The legislature, embodied by the National Assembly, has passed through eight terms since 1991, often marked by a degree of antagonism towards the executive. It thus saw itself as an institution of checks and balances.
The current National Assembly, elected on 28 April 2019, is condemned as being illegitimate, since it was appointed through elections in which the opposition did not take part.
The Constitutional Court, the real regulator of the functioning of Benin’s institutions, is the constitutional judge and the electoral judge of parliamentary and presidential elections.
The Autonomous National Electoral Commission (ANEC) was created by law to hold and organize elections, thus preventing them from being influenced by the Beninese executive.
The major public and personal freedoms were upheld by the Constitution of 11 December 1990 and have been generally respected since 1991.
It is this institutional system, based on the National Consensus, a principle that has taken on constitutional force, that has enabled the “once” sick child of Africa to be kept socially and politically quiet.
Thanks to these institutions that everyone accepted, ever since the holding of the first presidential elections of the democratic era in 1991, Benin has known regular democratic changes of leadership without any serious challenges or electoral crises
The Presidency of the Republic has thus been held by:
Nicephore SOGLO, the first president of the democratic era, from 1991 to 1996,
General Mathieu Kérékou, who served two successive presidential terms from 1996 to 2006 in the era of democratic renewal,
Thomas Boni Yayi, who served two successive terms from 2006 to 2016,
Patrice Talon, the president elected in April 2016 for a term that was to end in April 2021.
Voted in on the electoral promise to affirm and reinforce the Beninese democratic model, President Patrice Athanase Guillaume Talon has been doing his utmost since 6 April 2016 to implement a policy of dismantling Beninese democratic institutions and curtailing public and personal freedoms.
Upon his return from exile in 2015, though, Patrice Talon embodied the expectations of a necessary change of leadership and presented himself then as the “breakthrough” candidate, the only one capable of beating the candidate put forward by President Boni Yayi.
Elected after winning more than 65% of the votes, President Patrice Talon was flatteringly reputed to be a self-made man and businessman. His inauguration speech gave rise to hope and expectation among the people of Benin.
In solemn and ringing tones, the newly elected President set out the key points of his political and economic policies in the following terms:
“(…) Taking stock with you of the exceptional journey that is ours, I would like to acknowledge and commend Benin’s democratic roots, which thus prove, once again, its capacity to overcome the challenges with which it has always been con- fronted. (…)
“That is why I will make my single term a moral experience by exercising state power with dignity and simplicity. I will carry out my duties as President of the Republic with humility, self- lessness and sacrifice for the well-being of all. (…)
“To achieve this, I intend to re-establish the rule of law, one that respects people and property. I am committed to promoting an independent system of justice, the same for all, accessible and efficient, as well as to revitalizing and modernizing public administration. (…)
“I will endeavor to ensure and preserve the freedom of the press as well as equal access for all to the press media outlets. I will ensure the protection of private initiative and the private sector as the main tool for development.
“I will endeavor to accelerate and strengthen the decentralization process by including it in each of the actions that I will undertake. I will make our democracy a real instrument of international cooperation, for integration and influence so as to mobilize resources for the development of our country.
“I will work to reduce, and then to eradicate, hardship by ensuring, from now onwards, the protection of the most deprived and access to water and energy for all as inalienable rights and a factor for development.
“I will give priority to reorganizing the healthcare system so as to provide our fellow citizens with more effective and more inclusive health coverage. (…)
“Finally, I will turn the fight against corruption into a constant, everyday struggle that will not exhaust the tire- less efforts of the justice system and civil society to put an end to impunity. (…)”
Extracts from the inaugural speech delivered on 6 April 2016 in Porto Novo.
JUSTICE TAILORED TO SERVE POLITICAL ENDS
The elected candidate made a solemn commitment to promote an independent system of justice, the same for all, accessible and efficient, as well as to revitalize and modernize public administration. The reality, five(5) years on, is quite different, and the independence of the judiciary is merely an illusion in Benin.
The Superior Council of the Magistracy has undergone a structural and functional reform that has resulted in appointments to it being politicized and magistrates being dominated by the executive.
The appointment of magistrates is no longer subject to the usual criteria of competence and professional experience.
Transfers of magistrates are now carried out in violation of the security of tenure of sitting judges.
Fear and psychosis are now prevalent among magistrates, and their unions, very active in the past, have been silenced. Intimidation and persecution are the daily lot of President Patrice Talon’s political opponents.
The opportunistic creation of a special court, the Court for the Punishment of Economic Crime and Terrorism (CRIET), has only reinforced the suspicion that justice is being tailored to serve political ends.
This suspicion that Beninese justice has been turned into an instrument of the state is bolstered by the Beninese state’s distrust of the African Court on Human and Peoples’ Rights in ARUSHA (ACHPR) and its numerous decisions that, inter alia, require Benin to annul CRIET decisions.
It should be recalled that the ACHPR delivered a judgment on the merits of various cases on 29 March 2019 whereby the judges in ARUSHA held that the State of Benin and the CRIET were guilty of violating eight (8) fundamental rights of citizens who had applied to it.
Apart from the violations of the rights of the defense, the ACHPR ordered the respondent state, Benin, to adopt all necessary measures to annul judgment No.007/3C.COR. on 18 October 2018 by the CRIET, so as to void all its effects, and to report to the Court within six (6) months from the date of notification of the said ruling.
Yet, against all expectations, it is clear that the State of Benin has not complied with the ACHPR decision.
Benin has thus deliberately refused to honor its international commitments and the decision of the ACHPR, thereby violating the African Charter on Human and Peoples’ Rights and upholding the artificial, illegal and infamous conviction of a citizen exonerated by an international court.
To round off this operation to isolate Benin judicially and to escape rulings by the international justice system, the government of Benin announced, on 23 April 2020, its decision to withdraw from the 1998 protocol relating to the African Charter on Human and Peoples’ Rights, which established the African Court on Human and Peoples’ Rights.
By virtue of this decision, the government repudiated its declaration of acceptance of the African Court’s jurisdiction empowering citizens and NGOs to appeal directly to the African Court in the event of any violation of the rights and freedoms guaranteed by the African Charter, which was ratified by Benin and incorporated into its Constitution.
Benin’s withdrawal from the mechanism of Article 34.6 of the 1998 Protocol sounds the death knell for Beninese access to independent justice.
Deprived of their rights by a national justice system that is submissive and enacts orders from above, the Beninese are now barred from obtaining justice.
THE PARLIAMENTARY ELECTION ON 28 APRIL 2019: BENIN’S AUTHORITARIAN SHIFT
The culmination of the strategy of democratic destruction that has been in progress since April 2016 has to be the holding of the legislative elections on 28 April 2019 .
These parliamentary elections saw the opposition parties excluded from the hustings, with the complicity of the Constitutional Court.
Popular demonstrations of anger have been punished by arbitrary arrests and suppressed with bloodshed.
Ever since the elections, the country has been plunged into a post- electoral crisis.
Numerous initiatives taken by the Beninese clergy, other religious congregations and the international community to resolve the crisis have come up against rejection by the incumbent regime.
Benin’s National Assembly is now composed exclusively of deputies (83) from the two parties that support the head of state, which were set up under his firm control in 2017.
The opposition does not have a single deputy, since it was excluded from the poll by a political decision.
The parliamentary elections in April 2019 sounded the death knell for democratic progress in Benin and marked the authoritarian shift of the political regime in power since April 2016, which now openly acknowledges its dislike of freedom and democracy.
The next step was the constitutional revision of 1 November 2019. On the night of 31 October–1 November 2019, the 83 deputies backing the Beninese executive voted unanimously (yes, all with- out exception) for a constitutional revision that, contrary to the allegations of the regime’s supporters, goes further than a mere tidying up of the founding text of 11 December 1990. Law No.2019-40, which revises Law 90-032 of 11 December 1990 (effectively the Constitution of the Republic of Benin), actually ushers in a pronounced shift towards a conception of the Republic differing from the one that emerged from the Conference of the Living Forces of the Nation. This happened without any parliamentary debate and without any public discussion that involved the people and civil society.
As was to be expected, the Constitutional Court, chaired by the head of state’s former lawyer, checked the law’s compliance on 7 November 2019, and immediately afterwards the President of the Republic promulgated this new constitution on 8 November 2019.
It should be noted that this constitutional revision stems from a flagrant violation of Benin’s constitutional rules.
Put simply, the Constitution, the supreme and founding text of the Republic, cannot under any circumstances be revised according to an emergency procedure that is reserved only for ordinary laws.
While carrying out its constitutionality check, and even if it were not explicitly approached on that matter, the Constitutional Court could not fail to abide by the provisions of the National Assembly’s Standing Orders, which form part of the constitutionality corpus.
The office of the Constitutional Court should not restrict itself to checking compliance with the standard rules (territorial integrity, secularism and the republican form of the state, the 5-year presidential term renewable once, the lower and upper age limit and the presidential type of government).
The High Court should have raised the matter automatically and checked for compliance with legislative procedure.
One can only regret that, voluntarily or otherwise, the Constitutional Court narrowed the scope of its constitutionality check.
The approval of the new Constitution is marred de facto by a denial of constitutional justice.
Did the National Assembly that emerged from the disputed parliamentary elections of 28 April 2019 have the legitimacy and the mandate to revise our Constitution?
It was a disputed parliament, suspected of being illegitimate, that revised the Constitution that the people had chosen freely and by referendum on 11 December 1990.
The Assembly could not look to a political dialogue arranged between the pro- government political parties alone in order to shore up the claim to be a National Consensus.
The sidelining of civil society, the lack of discussion and public debate and the exclusion of the Clergy from the National Dialogue have finally dampened all hope of seeing the country come together to discuss the causes of the post-election crisis.
In the context of the elections of 28 April 2019, the bloody repression of the demonstrations on 1 and 2 May 2019 and, more generally, the government in power since 2016, any revision of our Social Contract could only proceed through a nationwide referendum.
MOVING TOWARDS A DIFFERENT REPUBLIC
The preamble to the Constitution of 11 December 1990 recalls:
“Thus, by restoring confidence to the people, the Conference of the Living Forces of the Nation, held in Cotonou from 19 to 28 February 1990, made national reconciliation and the advent of an era of Democratic Renewal possible. The day after the Conference, WE, THE PEOPLE OF BENIN, (…)”
The founding document of 1990 thus engraved popular support for the social contract in marble. This popular support was then to be validated by a constitutional referendum.
The PEOPLE are at the heart of the Beninese electoral process and must remain so.
Following the revision of 1 November 2019, the new Constitution was imposed on the people of Benin without any national consensus and without their support.
The purpose of this constitutional revision (fast-tracked, secret and exclusive) is to be found in the far-reaching changes in the institutional and democratic system that it ushers in.
The revision resulted in the redrafting, creation or revision of some fifty articles of the constitution: 5, 15, 26, 41, 42, 43,44, 45, 48, 49,
50, 52, 53, 54, 54-1, 62, 62-1, 62-2, 62-3, 62-4, 80, 81, 82, 92, 99,
112, 117, 119, 131, 132, 134-1, 134-2, 134-3, 134-4, 134-5, 134-6,
134-7, 143, 145, 151-1, 153-1, 153-2, 153-3, 157-1, 157-2 and 157-3
in our constitution.
It amounts clearly and unquestionably to a major overhaul of our Social Contract and a reshaping of our institutions. In fact, no answer will be found to the question of how it came to be necessary for Benin:
- to have a Vice-President elected alongside the President, but without any sovereign function, whereas the arrangements for a presidential stand-in as such are known and have never been implemented;
- to give the President of the Republic alone the
power to ratify loan agreements and then to report 90 days later to an Assembly that will have no other choice than to acknowledge the possible damage;
- to adapt elective terms of office and to hold cou- pled or grouped elections at the risk of adapting institutions and increasing their submission to an increasingly strong Executive;
- to force any presidential election candidate into a political sponsorship with confiscatory procedures, whereas the presidency should not be closed to anyone nor subjected to a race for sponsorship with its risks of political corruption…
Benin is no longer the republic of 11 December 1990, where there was a balance of powers and the popular will was taken into account. It is a different republic that is underway in Benin, involving a constitutional revision without the people that leads de facto to a constitutional revision against the people.
THE END OF DECENTRALISATION AND LOCAL GOVERNANCE
Consigned to oblivion is the elected President who solemnly declared: “I will endeavor to accelerate and strengthen the decentralization process by including it in each of the actions that I under- take.”
Benin’s defiance of international justice could also be seen in the municipal elections of 17 May 2020.
The Beninese executive did, in fact, uphold its local elections of 17 May 2020 despite the ACHPR ruling of 17 April 2020 ordering the State of Benin to suspend the organization of those elections until the ARUSHA court had delivered a judgment on the merits of the case.
The local elections were upheld despite a second ruling, dated 5 May 2020, in which the same court, the ACHPR, ordered the State of Benin to adopt all necessary measures to allow any Beninese citizen to take part in local elections.
More precisely, the Court found in favor of the Applicant and ordered the State of Benin to take all the requisite steps to properly remove any administrative, legal or political obstacle to candidacy at the next communal, municipal, district, town or village elections.
The Beninese authorities have clearly stated that they do not intend to obey these rulings, referencing a mixed bag of national sovereignty, the court’s interference in the country’s domestic political calendar, and compliance with the constitution.
So, the self-styled democratic state of Benin is now defying the African Court of Human and Peoples’ Rights. This legal situation of a state that has become a persistent offender is not to be taken lightly.
Still excluded from the electoral process, most of the opposition parties (those that remain, that is) and many citizens have called on voters to boycott the elections.
On the night of 21 May 2020, four days after the disputed elections, the ANEC announced an incredible turnout of 49.14%, a particularly surreal figure even if we suppose that the closeness of those elections may have mobilized slightly more Beninese than for the parliamentary elections of April 2019.
The votes were then allocated as follows:
39.97% of the votes were cast for the presidential Progressive Union party
37.38% were for the Republican Bloc presidential party 14.98% went to a “supposedly” opposition party, the FCBE 5.49% were cast for the presidential PRD party 2.17% went to the presidential UDBN party.
These last two political parties (the PRD and the UDBN) were eliminated by the rule known as the 10% of national representation threshold, a quota established by Benin’s new electoral code.
Thus, many voters, especially in the administrative capital of Benin and in the country’s most populous cities, saw their massive vote for those two parties purely and simply annulled and obliterated on the grounds that their party list did not pass the 10% national threshold.
In fact:
The UDBN topped the local ballot by a wide margin in Abomey- Calavi with 54,066 votes, which would have enabled it to take control of one-third of the municipal council and have a say in the nomination of the mayor.
The PRD received 136,593 votes in Porto Novo, the administrative capital, which would have enabled it to govern the city.
This grotesque and undemocratic situation is as politically outrageous as it is legally questionable.
The citizen is stripped of the right to vote.
Doubt is being cast on the very essence of democracy and the legitimacy of elected officials, but the damage goes even deeper…
While the results of the local ballot were being announced and some mayors and deputies had been elected by their peers, the disputed National Assembly voted in law 2020-13, by an emergency procedure, to supplement and interpret the electoral code.
This new text poses the problem of legal certainty, since the law is not retroactive.
It clearly amounts to a redrafting of the original rules, a breach of equality before the law and an undermining of local democracy.
In formal terms, it should be stated at the outset that this law is de- scribed as “On interpreting and supplementing Law No.2019-43 of 15 November 2019 on the electoral code”.
It is not just an interpretive law but a law supplementing the provisions of the old code, which they thus replace.
In fact, the old law is supplemented by the creation of new provisions, new rights and new mechanisms.
But a “simple” interpretive law does not create new rights.
On this first count alone, Law 2020-13 of 2 June 2020 is a flagrant violation of the essential principle that a law cannot be retroactive.
The very title of Chapter II buries the notion of interpretive law, since it is no longer a question of the election of the mayor and his deputies but “of the designation or election of the mayor and deputy mayors”. In effect, a new Article 189 is established, providing that:
“The mayor and his deputies are appointed by the party that has gained an absolute majority of councilors.
“If there is no absolute majority, the mayor and his deputies are appointed by all the parties that constitute an absolute majority when they sign a municipal governance agreement. Notification of the municipal governance agreement is sent to the supervisory authority.”
This is a far-reaching redrafting of a law that is said to have been interpreted, since the old Article 189 stipulated that: “The mayor and his deputies are elected inside the Communal Council by a secret uninominal ballot and by an absolute majority.
“The candidate for the office of mayor or deputy mayor is presented by the party that has gained an absolute majority of the councilors.” So the mayor and his deputies are no longer elected by the municipal or communal council: they are appointed, co-opted or nominated by the majority party. It is no longer an interpretation, it is not even a supplement, it is an outright redrafting of the law. It is also a far-reaching challenge to local democracy, which becomes a matter for parties and not for citizens through their elected representatives: local democracy is dead.
Local democracy is dead and replaced by the dictatorship of political parties.
THE RETREAT OF PUBLIC AND PERSONAL FREEDOMS
The space of four (4) years, the stunned and bruised Beninese have witnessed the suppression of their public and individual freedoms (thought, expression, demonstration, assembly, press, trade un- ions, etc.).
It has been noted that the Beninese authorities have violated the rights to freedom of expression and peaceful assembly in the context of parliamentary elections.
International observers have seen the security forces using excessive force against demonstrators with complete impunity.
Protesters and passers-by have been killed, and many others have been arbitrarily arrested and detained.
Journalists are particularly targeted by government authorities, leading to their arrest and sentencing to long prison terms.
The following list is not exhaustive, but in Benin today it is impossible:
- to speak in public to more than four people, otherwise one risks being regarded as involved in a conspiracy;
- to administer a public network without bearing criminal responsibility for the comments made by all members of the network;
- to contradict a minister or prosecutor without being afraid of ending up in prison.
In short, the justice system and iniquitous laws now deprive Benin’s people of the freedom to express themselves.
How can one keep democracy alive, when it is forbidden to meet up with others, when there are no more trade-union activities, when the right to demonstrate is reduced to nothing and the right of association is virtually given only to political parties ? And that’s not all!
The state’s functional administration has gradually disappeared through the transfer of state, or even sovereign, powers to agencies created at the Presidency of the Republic and under the sole control by the Beninese head of state.
Decentralization, which was only at an embryonic stage, has just been buried by the grotesque holding of a local election, in the midst of the COVID 19 pandemic, and by the amending of electoral laws, after the electorate had voted, authorizing the appointment of mayors and deputies by political parties and no longer by balloting inside the municipal council.
Having taken the oath on April 6, 2016, the constitutional mandate of Mr. Patrice Talon will end on April 5, 2021 at 00 h. However, the Council of Ministers dated Wednesday November 25, 2020 set the first round of the presidential election for Sunday April 11, 2021. And this, in flagrant violation of the Constitution of December 11, 1990 and the orders of the African Court of Peoples’ Human Rights (ACHPR), demanding the restoration of democracy before any election in the country.
By setting the 1st round at April 11 and possibly the second round at April 25 for the new President of the Republic to take service on May 23, 2021, the power of Mr. Patrice TALON fraudulently extends the current mandate of 45 days, thus creating a serious unprecedented legal vacuum. This is a confiscation of state power, however prohibited by the Basic Law of Benin. This is a new provocation from the Beninese authorities, an institutional robbery
Indeed, until 2016, after the Sovereign National Conference of 1990, Benin was able to organize a democratic political life, with regular votes and alternations without violence. The Constitution of December 11, 1990 guarantees multipartyism and freedom of expression. The opposition parties have been respected and have always been able to stand freely in elections, thus offering Beninese citizens real political alternatives.
Accepting today that the first round of the presidential election be held on April 11, in violation of the Constitution of December 11, 1990, the only one recognized by the people of Benin and confirmed by the ACHPR, is to validate the current dictatorship in Benin. This Constitution is thirty (30) years old today and turning a blind eye to the atrocities of this regime means giving the green light to Mr. Patrice Talon so that he remains in power for the number of years he wants, with even more serious crimes and human rights violations. Supporting this fraud is to be complicit in the consequences of such a despotic attitude for Benin and the West African sub-region; it is to encourage President Patrice TALON to force a passage and twist the arm of his people to confiscate power for life.
On Friday February 12, 2021, the ongoing democratic backsliding in Benin reached another millstone when the Autonomous National Electoral Commission of Benin (CENA) in doing President Patrice Talon’s betting, announced its excluded all oppositions candidates from the upcoming April 11, 2021 presidential election, including the country’s first female flag bearer for a major opposition party, the candidate Reckya Madougou –Les Démocrates, the country largest opposition party who’s honorary chair is none other than the former president Boni Yayi; only to allow in addition to President Talon candidacy, only two other candidates, handpicked, groomed and financed by President Talon.
HUMAN RIGHT ABUSE AND REPRESSIONS
In recent days we have witnessed an unprecedented tightening of the repression against civil society, human rights defenders, political activists and journalists. The latest case is that of the former minister and opponent Ganiou Soglo, son of the former Head of State, Nicéphore Dieudonné SOGLO, who was riddled with live bullets in a locality not far from Cotonou (Zinvié), Friday February 5, 2021, around 8 p.m.
In Benin, President Patrice Talon kills with live bullets, imprisons and forcibly exiled to stay in power. He has completely disconnected democracy and holds the country with an iron fist, suppressing, in blood, sweat and tears, all critical voices.
All those who oppose its authoritarian rule are killed or persecuted. Between 2019 and 2020, the army and the police massacred civilian populations in several localities of the country (Cotonou, Tchaourou, Savè, Kilibo, Bantè, Kandi, etc.). Other citizens, because of their political views, have been coldly murdered. Prudence Vioutou Amoussou, Ambroise Biaou, Fidèle Combetti, Théophile Dieudonné Djaho, Bio Zakari Adam and others will never see their families again.
Political opponents, web activists, independent journalists and human rights defenders who could not be killed are thrown in prison, others tortured: Laurent Metongnon, Ferdinand Combetti, Hamiss Dramane, Edouard Kohou, Serge Christian Yededji, Razack Amadou and Jean Kpoton are still being held in prison, sentenced to severe prison terms.
This situation has pushed thousands of Beninese, men, women and children, to flee the country to take refuge in Togo, Ghana, Nigeria, Niger, Burkina Faso, Algeria, Morocco, Guinea Conakry , in Ivory Coast, in France, in Belgium, in Switzerland, in Spain, in Germany, in the United States, in Canada, etc. Some found it difficult to return to these destinations on foot or by sea, and others by air.
A forced exile, experienced as a last burst of survival and the only recourse to safeguard their opinions: Sébastien Germain Ajavon, Komi Koutche, Valentin Agossou-Djenontin, Léonce Houngbadji, Bertin Coovi, Fatouma Amadou Djibril, Léhady Soglo, Joël Ajavon and Abdou Raman Soumanou, to name just a few.
