On April 16, 2020 as part of the fight against COVID-19 the government of Burkina Faso requested the approval of the national assembly, to enable the executive to legislate by ordinance any laws related to the fight against COVID-19. The National Assembly then, adopted on Tuesday May 5, 2020, the Enabling Bill. Does that mean the government is now all powerful and mighty? Under article 101 of Burkina Faso’s Constitution of June 2, 1991, an Enabling Act is a delegation of the legislative function to the executive branch of government. To put it simply, through the Enabling Bill, the National Assembly transfers to the executive, for a limited period, its power to legislate in the areas provided for. This is done to allow decisions to be enacted faster by the executive and to circumvent debates and possible blockages in the National Assembly. An enabling law is a device that exists in all modern democracies.
In the case of Burkina Faso, the Enabling Law has been granted for a period of three months from May to July 2020, and orders should be taken in the Council of Ministers after consulting the Constitutional Council. Since the government is not required to make known the content of the orders it will take, the Constitutional Council must play its part by ensuring that a priori and a posteriori surveillance of the ordinances so that the laws made by the executive abide by the legal texts which pertain to a state of sanitary emergency. This somewhat abides by the separation of powers doctrine which ensures that a scrutiny mechanism is placed on the three branches of the state (executive, legislative and judiciary). In this case the judiciary will stop the executive from exercising beyond the powers that it has been given.
So far, it appears that the judiciary still has an eye on the executive’s decisions, but how is this likely to trample the core principles of democracy? Well, the current political narrative of the country is not favorable to the passing of an Enabling Act. At the outset of the pandemic on March 9, 2020 in Burkina Faso, a curfew was imposed by the government and there have been many reports of abuses by police forces. The Prosecutor of the State only issued a warning against these practices, but no judicial proceedings were undertaken. For a few years now the judiciary has been under much criticism. The main criticisms are that judges have given the impression that they no longer care about the fate of the people; prominent files are piled up in the drawers, and litigants complain about the slowness of legal procedures. Sometime in February this year, judges had gone on strike because their salary had been cut by the government, but they did not receive any support from the population who rather upheld their criticism of the judiciary.
Now back to the COVID-19 crisis, whereby the executive will be allowed to pass orders only under scrutiny of the Constitutional Council, subjected to social scrutiny and pressure, judges today find themselves between the hammer and the anvil. It is highly likely that judges will not effectively review orders before they are passed by the executive. They will be less willing to make opposing comments to passing of laws related to COVID-19 and risk judgement from the public and further affect the image of the judiciary. One might ask, how will the population know that judges are abdicating their functions of checking the executive? Well as in most African states, the people always find out anything that concerns them.
Burkina Faso has known years of active terrorism, but no enabling law was passed since 2016; when the first terrorist attack occurred on January 15, 2016 targeting a restaurant and a hotel simultaneously. As the years pass, Burkina Faso is continuously faced with recurring terrorist attacks and one would have expected an enabling act to be passed long before the health crisis, to enable the executive to act expeditiously to curb the mounting terrorist threat. What then is the significance of such enabling law during a sanitary crisis? It is probably a favorable time for the executive to hold such powers? In such a context, where elections are due in November 2020, the passing of the Enabling Bill may be an opportunity for the President of Burkina Faso to extend mandates and postpone the elections. Consequently, granting of exorbitant powers to a government during an election year—even in the face of a global pandemic, can be dangerous for democracy.
Sarah Kam is a Policy Analyst based in Burkina Faso. She has a Masters in Law (LLM) from University College London.