The Will of the People Transcends the Will of Parties in Presidential Democracies
|Supreme Court Building in central Freetown|
The President based his decision on two grounds: having been expelled from the ruling All People’s Congress, the Vice President (VP) is no longer a member of a political party, which he claims is a “continuous requirement” for the post of VP; and
Section 40 (1) of the 1991 constitution gives the President “supreme executive authority” to relieve the VP of his post without going through parliament as stipulated in Sections 50 and 51 of the constitution.
Eminent legal scholars and practitioners, including the erudite jurist and chief architect of the 1991 constitution, Justice Abdulai Conteh, have challenged the legality of the President’s action; and the Vice President has petitioned the Supreme Court to deliver a verdict on the issue.
The two questions posed by the VP’s legal team to the Supreme Court are simple, clear and to the point: whether the President can sack the Vice President without using the parliamentary procedures in Sections 50 and 51 of the constitution; and whether the President’s “supreme executive authority” mentioned in Section 40 (1) of the constitution includes the power to sack the Vice President without using the procedures of Sections 50 and 51 of the constitution.
My contribution in this piece is on the dangers of the idea of “continuous requirement” of membership of a political party for the posts of President and Vice President.
Political parties aggregate voter choices by selecting individuals to contest public office and advancing policies that represent the preferences of voters. Although sovereignty belongs to the people, direct democracy, in which every citizen can directly represent his or her interests in the public domain, is hardly feasible outside of micro-level village settings. Modern democracies require elected representatives who, for the most part, are processed through political parties. This is why political scientists refer to modern democracies as “representative democracies”.
Despite the central role of political parties in the functioning of modern democracies, they do not usurp the will of voters in constituting public institutions. Especially in established presidential democracies, even the entry requirement of membership of a political party may be frowned upon because it undermines the sovereignty of voters as individuals in contesting public office.
Political parties can discipline erring representatives when they seek re-election by denying them the party’s symbol; they can also expel such representatives, making it impossible to seek re-election under the same party. However, expulsion may not affect the status of an elected official whose tenure has not expired and who refuses to resign his or her post. The reason is simple: parties nominate, and voters elect. Party members are just a fraction of the totality of voters who are the primary bearers of sovereignty and democracy.
In Sierra Leone, it is understood that a nine-member committee of the ruling party’s 49-member National Advisory Council investigated allegations made against the VP and recommended his expulsion from the party, which the NAC upheld. Compare this 49-member group to the more than two million voters who participated in the 2012 elections that propelled the President and VP into office. If membership of a political party is a continuous requirement for the posts of President and Vice President, then a small bunch of unelected party officials may arrogate to themselves the power to decide whether a VP or President with a popular mandate can continue in office. In authoritarian communist states that fuse the powers of party, state and government, parties enjoy such dominance over voters’ choices.
The situation is different in democracies. Constituency-based, first-past-the-post parliamentary democracies and presidential democracies share similar characteristics in recognising the sovereignty of voters over parties in determining the status of elected representatives. This is why even when MPs switch sides or are expelled from their parties, they are often not required to quit office. Some new democracies, such as Kenya, Zambia and Sierra Leone that use constituency-based rules to elect MPs, stipulate that such MPs should lose their seats, but fresh elections in which the affected MPs are free to contest should be held, thus ensuring that voters, not parties, still have the final say on who represents them.
The sovereignty of voters may be compromised in parliamentary democracies that are based on the closed List-system of proportional representation where voters elect parties rather than individuals. In such systems, if an MP ceases to be a member of a party, the next person on the party list automatically replaces the affected MP without going through elections. Many West European parliamentary democracies with PR systems have thus opted for open-list systems where voters have the freedom to select individual candidates on party lists, making it difficult for party bosses to scuttle the verdict of voters. The Organization for Security and Cooperation in Europe affirms that it is individual MPs who own the mandates of parliamentary seats, which, in the absence of elections, can only be revoked through a judicial process.
In presidential democracies, a Vice President enjoys the same popular mandate as a President. In this sense, a VP’s status is fundamentally different from ministers who are Presidential appointees. It is virtually impossible for a President to fire an elected Vice President even when relations become irreconcilable. The two offices are like Siamese twins. This is why the procedures that govern the removal of a president usually govern those related to the removal of a Vice President.
For instance, after 1986, the impeachment of a Vice President in the United States also requires (as is stipulated for the impeachment of a President) the Chief Justice to preside over the Senate chamber that will vote on the impeachment. No US Vice President has ever been impeached; but Spiro Agnew, Richard Nixon’s Vice President, was forced to resign in 1973 because of charges related to financial fraud. Instructively, Nixon would not have been able to replace Agnew with Gerald Ford without Agnew’s resignation or impeachment by Congress.
Two recent cases in Africa of political differences between a president and vice president are also instructive. In Nigeria, Vice President Abubakar Atiku fell out with President Olusegun Obasanjo over the latter’s bid for a third term in office. Atiku was first suspended and then expelled from the ruling party on charges of corruption and anti-party activities. However, he remained as Vice President and the courts did not allow the ruling party and the national elections office to prevent him from subsequently contesting the presidency under a different party. Similarly, President Bingu wa Mutharika of Zambia was unable to sack his Vice President, Grace Banda, even when the latter was expelled from the ruling party. Banda formed her own party and remained Vice President, succeeding Mutharika as President when the latter died before the end of their joint mandate. In the African context, the brinkmanship displayed by presidents may reflect the “strong man” syndrome or refusal to respect or grow institutions, which President Obama warned against in his speech to the Ghana Parliament in 2009. At least in Nigeria and Malawi, the courts and parliament imposed limits on presidential power and the vice presidents remained in office.
If in democracies there are limits to presidential power in hiring and firing vice presidents, presidents have no alternative but to manage such power professionally. There is no reason why a professional working relationship cannot be crafted to allow for co-habitation between a president and his vice even when personal relations deteriorate. Democracies are full of cases where leaders and their deputies do not have amicable relations, but have worked professionally as a team to serve the public interest.
It is difficult to understand why the All People’s Congress and the President decided to plunge the country into a constitutional crisis in the middle of our worst health crisis in living memory. It was an open secret that relations between the President and Vice President had become frosty even before the 2012 elections, and many observers felt the President would dump the VP by selecting a new running mate, especially as the VP had become mired in too many scandals (although he strenuously denied the allegations).
Electoral calculations may have influenced the decision to retain the VP as a running mate, even though, as it turned out, the votes that the VP may have mobilized in Kono, his home district, were not decisive in clinching the elections for the President. If one adjusts for at least Northern voters in Kono, who constitute at least a third of the electorate in that district, and who tend to vote for Northern parties, the ethnic Kono vote may have been equally split between the Koroma-Sam Sumana and Bio-Sesay tickets in the 2012 election. Indeed, more voters from the Southern region and the two Eastern districts of Kenema and Kailahun supplied more votes to the Koroma-Sam Sumana ticket than the Kono voters (67,238 votes from Kono versus 149,021 votes from the 6 Mende-dominated Southeast districts). Future historians and public policy analysts may well interpret the current crisis as poor management of executive power.
Yusuf Bangura was a research coordinator at the United Nations Research Institute for Social Development (UNRISD) from 1990 to 2012. Bangura became UNRISD Senior Research Associate in September 2014.