2017 and the debate on Presidential term limits: What to consider

A few weeks ago, while chatting with a Western diplomat in the corridors of the United Nations, I was asked how I foresee Rwanda’s political and economic development in 2017 and beyond. In an optimistic mood, I started explaining important Government projects and policies that will put our country in a much better position than today – EDPRS 2 and the country’s Vision 2020. Partially convinced, the Western diplomat asked me a straight forward question, what I thought about the Presidential term limits in Rwanda, and the term of incumbency coming to an end in 2017; and whether amending the Constitution to allow President Paul Kagame to run for another term would be good for Rwanda. I told him that in a democracy, people have the right to determine who governs them, and that it was the duty of Rwandans, President Kagame inclusive, to decide. I, however, asked him, and still ask myself why he was so concerned with political developments that are due to happen in Rwanda in 2017, while he should be focusing on other pressing issues of security and stability concern in the region, including the elimination of negative forces, especially the FDLR, if he was really genuine in seeking stability for the region. In this opinion, I review the normative debate over Presidential terms limits, and identify the key claims of proponents and opponents. I introduce the idea of characterizing Presidential terms limits not as rubber stamp norm that dictates the will of the people, but as a type of default rule people may wish to reconsider if sufficient political support, needs and conditions to do so are apparent. I then apply that review to the situation of Rwanda, to conclude that Constitutional amendment would not necessarily be a bad idea, if the people of Rwanda chose to do so. Constitution versus the will of the people As a way of introduction, let me reflect on the main argument that constitutional amendment to allow for third term goes against democratic norms and principles. The word democracy comes from ancient Greek δημοκρατία (dēmokratiā), which combines dēmos, the “people”, with kratos, meaning “rule”, “power” or “strength”. Put together, the literal denotation of democracy is “rule by the people”, culminating in a popular form of government. Also many conceptual works of academic scholars explicitly reviewed the conceptual diversity of theoretical framing of democracy, including (Bühlmann et al., 2008; Schmidt, 2006) and Michael J. Sodaro who stressed that “The essential idea of democracy is that the people have the right to determine who governs them…” Democracies also impose legal limits on the government’s authority by guaranteeing certain rights and freedoms to their citizens. In addition, Sodaro introduces further conceptual aspects of what he called “four faces of democracy” namely popular sovereignty; rights and liberties; democratic values; and economic democracy, that are usually enshrined in a constitution. Modern constitutions are, as a rule, technical legal frameworks for governance under law. This is the contemporary and widely-shared view; and Constitutionalism, the rule of law, and the protection of human rights under the liberal-democratic model, generally, have become closely associated with what a constitution should be about. A State’s constitution is that body of rules determining fundamental matters such as the composition, powers and procedures of the legislature, executive and judiciary. Modern State constitutions deal directly with the exercise of power within the State and will contain rules on the control over the exercise of such power. However, there is no universal basic formula or requirements on the content of what should be included in the constitution: It may for example contain the basic rules on elections, the role of the legislature, the powers and terms of the Head of State and Government, as well as the functions of the executive. All of these aspects are rather political choices that are considered during the drafting and adoption process, and much of the content of the constitution depends largely on intent and aspirations of any given people in a particular State. Political reality and practice within a given society can, however, not be equated with what a constitution formally says. Actual practice, election results, the behavior of political parties and of Government, the role and activities of civil society, judicial interpretation, economic and social factors, and the development of certain conventions are vital in order to understand the political reality of any given State. Today, the rationale for fixing terms does not carry with it a universally applicable criterion for what the length of those terms should be; which is why perhaps many modern western democracies do not have term limits in their constitutions. With that in mind, what does the 11 year old Constitution of Rwanda say on Presidential terms limits? Article 101 of the 2003 Rwanda Constitution states that “The President of the Republic is elected for a term of seven years renewable only once”. It further reads: “Under no circumstances shall a person hold the office of President of Republic for more than two terms”. It is on the basis of this provision that debate on Presidential terms arises, with an understanding that the constitution cannot be amended to allow the incumbency to run for a third term. However, some other provisions in the Constitution have been revised and amended several times to match the reality and practice, although not through the same ways article 101 can be amended if need arises. In each of these instances, the amendments have sought to strengthen our democratic system and to more effectively promote good governance and social development; and in each of these instances, the amendments have been preceded by thorough debate and consultation among Rwandans. They have not been made hastily or carelessly. After all, a written constitution is only a genuine source of democracy if it can be enforced; but by whom? The obvious answer seems to be that this must be by the citizen it serves. Enlightenment thinkers Thomas Hobbes, John Locke, Charles-Louis de Secondat Montesquieu and their many followers developed theories of constitutional government, versions of which are now widely accepted as giving both a true representation of political liberty, and the preferred way of exercising political power so that it expresses not the will of those who wield it, but the rights of the citizens whom it governs. Equally, the constitution of Rwanda was made by Rwandans, serves Rwandans, and is implemented by Rwandans. Any debate on possible amendments should also be initiated by Rwandans themselves if they so wish. In any case, the Preamble of our Constitution starts with “We, the People of Rwanda”. Today, a number of Rwandans (who are part of the “We the People”) have publicly demanded that President Kagame be allowed to run for a third term. Their demands are within their constitutional rights to do so; and will be subjected to the President’s acceptance of their appeal. In the case these public demands are heeded, the Constitution is very clear on what should be done. Paragraph 1 of article 193, stresses that power to initiate amendment of the Constitution shall be vested concurrently in the President of the Republic upon the proposal of the Cabinet and each Chamber of Parliament upon a resolution passed by a two thirds (2/3) majority vote of its members. Furthermore, Paragraph 3 of article 193, states that the constitutional amendment concerning the term of the President of the Republic must be passed by referendum, after adoption by each Chamber of Parliament. So the Constitution is very clear, and surely Rwandans have constitutional rights to modify, amend or review their constitution. Terms limits versus effective leadership My other argument is against widespread belief that Presidential term limits ostensibly improves democratic governance, and economic development. Proponents of terms limits assume that greater experience of so-called “career politician” as an incumbent is not nearly as valuable as freshness and energy a new President might bring to the position. Additional arguments suggest that term limits may even be indicative of a higher form of democracy as it presumably increases participation of people in governance. Theoretically, the motivation behind supporters of term limits is noble. Good governance is and should be a high priority goal for any democracy. In my opinion, however, good governance is best achieved through application of meritocracy and not through imposition of any artificial and predetermined time limits. A bad leader doesn’t become bad at a certain age or after a certain, pre-determined time period in office. Imposition of term limits is no guarantee against an incompetent or an inappropriate leader being elected in the first place. On the other hand, term limits can and do curtail a person from serving beyond the specified term limit regardless of how capable and appropriate the person might be or even how much the people being governed might favor his or her service in the role. That is why I am of the view that public demands by the people of Rwanda on this issue should be heeded. This argument of effective leadership against term limits was also advocated by famous scholars such as David Hume and Alexander Hamilton. David Hume, in his critique of James Harringtons scheme of government in “The Commonwealth of Oceana”, argued that forcing leaders out of power on the basis of term limits would deprive the people of the best possible leaders; and he saw no benefit in artificial rotation among officeholders. Alexander Hamilton also thought that a limitation on the presidential term involved “the banishing [of] men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. Hamilton’s concern was not only experience but the related concern of a uniquely qualified leader. This may be particularly important in new states or fragile democracies. Artificially forcing uniquely qualified individuals from office, it is argued, may deprive the state of the best possible leadership and risk undermining the social basis for the state. While advocates of term limits might argue that no one is indispensable, and that other skilled and potential leaders might be groomed to replace the incumbent, my argument here is an individual track record on tried and tested policies that are in public domain, especially on matters of peace, security and stability, and economic development of our country; and President Kagame has demonstrated an exceptional leadership in that regard, and I don’t need to describe them here as facts speak for themselves. My view is that for many Rwandans, it will be too soon for them to get robbed of such an exceptional leader at the helm of their State. For others, it will even be irrational and dangerous to embark on an uncertain path in trying a new leader, unsure that they will keep the legacy of their predecessor in fostering unity, peace and prosperity. A new leader might try – and I am not putting it that there are no other Rwandans who might be potential candidates – but let us admit it: leaders like Kagame are very rare. Emmanuel Nibishaka is a researcher nibishakaemmanuel@gmail.com

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2017 and the debate on Presidential term limits: What to consider