Throughout history, there are examples where social movements have proved that they can still use constitutions as weapons against authoritarian regimes. One clear example of this was the 2014 “insurrection” in Burkina Faso, when protesters (almost literally) chased President Blaise Compaoré out of power after he failed to amend the constitution to allow him to run for yet another term.

For its first two decades after independence in 1960 the new state of Upper Volta made essentially no effort to extend its authority into rural areas. Urban politics, however, soon became characterised by an unusual combination of radicalism and effective organisation. In 1966 an urban alliance of trade unionists, soldiers and students ousted the first president, Maurice Yaméogo by taking to the streets.

A similar coalition of forces would be largely responsible for sustaining Thomas Sankara’s revolutionary military regime (1983-7) in its earliest years. Sankara’s government sought to symbolically break with France and build a totalising, genuinely national state, which he named Burkina Faso (“Land of the Upright Men”).

This left-populist project was, however, beset with numerous difficulties from the outset. Sankara’s undoubted charisma and personal integrity could only ever count for so much. Blaise Compaoré, one of Sankara’s closest allies, could easily capitalise on the inevitable discontent fuelled by ethical and budgetary austerity, increasingly draconian anti-trade union measures, and an adventurist foreign policy that targeted “puppet” collaborators with the neo-colonial networks of Françafrique.

After (allegedly) organising Sankara’s assassination, in 1987, Compaoré soon proved himself a master of democratic divide-and-rule. He abandoned Marxist objections to “bourgeois democracy” as soon as the Berlin Wall fell, and exploited the advantages of incumbency for all they were worth. In the 2005 elections, for example, his party spent 80 times that of its nearest competitor. Opposition parties became fragmented and demoralised.

Under these conditions, effective opposition required abandoning politics for law and morality. Even the most radical of demands were soon framed in terms of “the rule of law and defence of constitutional rights”. Strikingly, this language was embraced not just by new “civil society” organisations but also by some dogmatically Marxist and communist-affiliated trade unions that had formed the cutting-edge of opposition to all previous governments.

In 1998, the brutal assassination of investigative journalist Norbert Zongo, carried out by members of Compaoré’s own Regiment of Presidential Security (RSP), had united these forces. Protesters rallied behind the slogan “enough is enough!” and brought the country to a standstill. The new movement’s spokesperson had been a judge under Sankara and was a founder of the clandestine Revolutionary Communist Party. Marxism’s legacy in Burkina Faso was an austere moralism, rather than any materialist science of society.

Urban youth, in particular, began contrasting Sankara’s “martyrdom” and integrity with the corruption and impunity of the new regime. As Sten Hagberg put it at the time, “while political discourse is morally loaded and focuses on the behaviour of key political actors, structural causes of the crisis are rarely addressed. [… ] In other words, the rule of law must be respected, but the law itself is not questioned.”

Mobilisation

The opposition’s favoured legal tactic was defending Article 37 of the constitution. Compaoré had removed term limits in 1997, and they only re-appeared in 2001 thanks to mobilisation after Zongo’s assassination. In theory, he was now only re-electable once. But in 2005 his government persuaded the Constitutional Council that this shouldn’t apply retrospectively.

The decade that followed saw constant speculation that Compaoré would seek another constitutional amendment to run again in 2015. For a number of reasons, however, he would face more organised opposition than in 2005. Here I highlight only three:

1. The increasing popularity of “Sankarist” moralism, especially among those with little memory of Sankara’s rule;
2. New forms of youth mobilisation inspired by other African responses to the Arab Spring; and
3. The availability of new transnational arguments for the unconstitutionality of constitutional amendments. It is important to note that the latter were not legal niceties irrelevant to the politics of the streets. Unusually, constitutional argument had become part of the culture of protest in urban Burkina Faso.

By the late 2000s Burkina Faso’s young urban population had increasingly little memory of austerity under Sankara’s “total state”. To these constituencies, the Compaoré regime could no longer justify itself as the guarantor of normality. It was increasingly forced to fall back on an appeal to patriotism and civic values: Etre Burkinabè, ça se mérite (“to be a Burkinabé, you have to earn it”, as one slogan had it).

But here the reworked memory of Thomas Sankara as Africa’s only honest ruler could so easily be used to turn these words against a government tainted with “impunity” since Zongo’s assassination. In the long build-up to the planned 2015 elections, opposition lawyers began highlighting the many criminal acts of the ruling regime, and helped strengthen a taboo round any form of collaboration with its constitutional (manipulative) projects – a taboo which Beucher labels “the clean and dirty”.

For the leftist trade unions, by contrast – who retained a very different view of Sankara’s legacy – the constant use of Sankara’s image was little more than nationalist mystique, easily appropriated by a corrupt political class. They would remain focused on protesting about living standards and were largely bystanders in the 2014 insurrection.

Resistance

The loss of the unions’ organisational expertise could now, however, be at least mitigated through the borrowing of new strategies from elsewhere. Two months after Mohamed Bouazizi’s self-immolation, Burkina Faso did, in fact, have its own widespread civilian protests against impunity, with slogans such as “Tunisia is in Koudougou!” and “Burkina will have its Egypt!”

But in truth the causes of these protests were local. More important was civil society learning from Y ’en a Marre (We’ve Had Enough): a Senegalese social movement founded in January 2011 to oppose President Adboulaye Wade’s own efforts to amend the constitution so that he could run for a third term. In particular Le Balai Citoyen (The Citizens’ Broom), founded in August 2013, followed Y ’en a Marre in campaigning using social media and hip-hop/reggae stars to mobilise youth. Le Balai, like other similar new movements, included constitutional lawyers amongst its organisers.

The rule of law had long become a proxy for morality in the fight against impunity, post-Zongo. But taken together these new developments ensured that Article 37 of the constitution became a lightning rod for a whole range of urban grievances filtered through Burkinabé protest culture. It acquired something like sacred status. Almamy KJ, now head of the country’s musicians’ union, put out a song in 2013 called Article 37, an extract of which goes as follows:

Intro:

Highly sensitive article of the constitution [… ] never to be added to

Chorus:

Article 37, don’t touch it.

Power for life, that’s not for us [chez nous].

The schoolchildren are saying “bye”, the students are saying “bye”.

The teachers are saying “bye” […] The drivers are saying “bye”.

The unemployed are saying “bye”, the people as a whole is saying “bye, bye, bye”.

These defenders of Article 37 succeeded in defeating a long series of initiatives designed to legitimise Compoaré’s stay in power post-2015. First, a Consultative Council on Political Reforms created after the “2011 crisis” failed to get opposition parties to participate. A 2013 proposal to create a senate, which could approve the constitutional modification, was withdrawn after demonstrations of up to 50,000 people in Place de la Nation (“Ouagadougou’s Tahrir Square”). A subsequent attempt to organise a popular referendum proved if anything even more contentious. NGOs filled stadiums in Ouagadougou and Bobo-Dioulasso, highlighting the anti-constitutional nature of the Compaoré regime.

As Ouédraogo and Ouédraogo put it, “the authors of the popular insurrection had, with the aid of certain constitutionalists, build the discourse of resistance on the basis of the Constitution”. By 2013, opposition parties had joined civil society organisations in framing Compaoré’s manoeuvres as a “constitutional coup”, citing restrictions on constitutional amendments in the 2007 African Charter on Democracy, Elections and Governance (ACDEG).

Insurrection

In late October 2014 it became clear that Compaoré had finally persuaded three-quarters of parliamentarians to support his plan. This led to widespread calls for civil disobedience, which Le Balai Citoyen (partly) justified by pointing to the ACDEG. Civil society was insisting on transnational arguments for the legality of their actions.

The National Assembly vote was due for 30 October. MPs from the majority party were quickly holed up in the Azalai Hötel Indépendance, just metres from a side entrance to the National Assembly. But on the morning of 30 October protesters stormed the Assembly before a vote could be held. Numerous symbolic locations, including the parliament itself, met with Norbert Zongo’s fate, and went up in flames. Amid this conflagration, the president eventually escaped and had to be airlifted to Cöte d’Ivoire in a French helicopter.

Aftermath

The events of 2014 showed that, contrary to some claims, the Burkinabè civil society organisations had become much more than a means of channelling donor funds to patronage networks (as per one stereotype in political science). Reworked memories of Thomas Sankara’s revolutionary regime (1983-7) allowed opposition lawyers to combat Compaoré’s constitutional engineering by appealing to a home-grown moralistic tradition in urban politics. They could present the constitution as a product of local struggle rather than foreign imposition.

Unfortunately, the insurrection they helped lead was a striking exception to a general rule. Generally speaking, constitutional term limits have done very little to constrain the attempts of leaders in Africa to hold onto power. A string of leaders in Africa have succeeded in passing formal measures allowing them to run again at the end of their final term.

But in this case, openly partisan political activity by constitutional lawyers had helped make the law a vehicle for neo-Sankarist moralism, and turn it into a weapon for the fight against impunity. The constitution had acquired special status.

It must be admitted that this has created its own difficulties in the years since the insurrection. Constitutionally, for example, the power vacuum in 2014 should have been filled by the president of the National Assembly. But he had fled along with Compaoré. This saw a military leader take power for two weeks, before initiating a year-long civilian “transition”.

Compaoré’s supporters, especially, have been able to point to such irregularities in order to denounce the “insurgents” as hypocrites. And in September 2015 some of them even justified a (failed) military coup as necessary for restoring constitutional order. More recently, finally, Jihadi militancy has greatly weakened the state’s control over its territory, and (predictably) made a legal argument appear as something of a luxury. What is certain, however, is that no one could dismiss the constitution as an irrelevance or a mere elite concern. It had become part and parcel of contentious politics. MC

* Peter Brett is a senior lecturer in international politics at Queen Mary – University of London. He also writes on law and politics in Southern Africa.