Dummies Guide to Constitutional Fraud

13 01 2010

Colonel Ould Taya

As an activist interested in issues of reform in the MENA region, I was grabbed by a commentary at the Maghreb Blog on a paper entitled “Constitutional Reform in the Arab World” by Professor Amina El Messaoudi of the Mohamed V University in Rabat. A quick glance on the section dedicated to Mauritania reveals serious factual flaws:

The introduction to the Mauritanian constitution assured its commitment to democratic values as defined in the International Declaration of Human Rights (1948) and the African Covenant for Human Rights (1981). The constitutional amendment of 1991 defined a variety of rights which are guaranteed to the Mauritanian people, including the right to equality, freedoms and basic human rights, the right to property, political freedoms, freedoms for trade unions, economic and social rights

Understandably, the chronic shortage of research material on Mauritania produces this assessment which is factually and historically wrong. The author seems to not know that when Mauritanian’s 1991 constitution was put on referendum, the citizens voted for a constitution of 103 articles. After the vote, Mauritanians were surprised by the addition of a 104th article stating:

La législation et la réglementation en vigueur dans la République Islamique de Mauritanie restent applicables tant qu’elles n’auront pas été modifiées dans les formes prévues par la présente Constitution.

This meant that in effect, the 1991 constitution was emptied of any perceived gains in terms of  protections and guarantees for political freedoms. By adding article 104, the laws promulgated under the CMSN (military junta ruling since July 1978) regime were maintained. These were the laws that former President Taya used to repress his opposition and retain extraordinary powers of arrest, surveillance and detention from 1991 until 2005.

It is no accident that the constitutional reform of 2005-with its problematic article 102- removed article 104 at the request of all political actors in the country. See for example this quote from Le Calame published on the UFP’s site concerning the infamous article during the post 2005 coup transition:

Pour ce qui est du fameux article 104, les participants ont exigé son abrogation, car il est jugé illégitime pour avoir été ajouté au texte de la constitution de juillet 91. L’article qui portera désormais (à titre symbolique) le numéro 103 sera reformulé pour garantir à la fois la continuité du droit, et la nécessaire adaptation des lois et règlements antérieurs aux nouveaux droits et libérés consacrés par la Loi fondamentale.

The issue at hand is not that a professor got her history wrong, it is rather that this blatant violation of the principles of constitutional rule was largely ignored by Mauritania’s main donor countries. between 1991 and 2005 the Taya regime-fraudulent elections included- was considered legitimate and legal by many in the west  because of larger interests and geopolitical realities. Mauritania’s political class is not blameless,  it never managed to formulate a cohesive vision convincing enough to foreign powers to contemplate an alternative to Taya’s authoritarian rule. Naturally, it paid the price in the form of the 20 years of Ould Taya’s dictatorial reign.

Alas, this is not an issue of the past: the same pattern is discernible in big powers’ choice to ignore massive fraud that “legitimized” General Aziz’s election back in July 2009. Interestingly, Aziz’s newest tool, the anti-terror law, reflects some of the same murkiness as Ould Taya’s constitution; an elastic definition of terrorism that also allows up to 4 years of preventive detention in “terrorism” cases. It even has a vague reference to constitutional rights without any specifics.  Today as well, it remains to be seen whether big powers will yet again be content with the appearance of legality over legitimacy in order to pursue vital interests.

Just to name a few names: Jemal Mubarak, Ahmed Ali Abdullah Saleh, Seyif Alislam Qaddafi are real reminders that the challenge of realpolitik does apply beyond to Mauritania to the entire Arab region as many regimes are nearing their biological expiration date; many leaders are aging and are busy engineering their monarchical succession under the cover of republican constitutional legality…


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