In Search of Lost Legality: Justice, Constitutionality, and the Rome Statute in Côte d’Ivoire

Joseph Hellweg, Department of Religion, Florida State University

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Figure 1

There is apparent agreement among international and human rights organizations about how to assure Côte d’Ivoire’s recovery from recent violence. U.N. Secretary General Ban Ki-moon may have first voiced this consensus in April 2011 when he “pledged that the U.N. would help [Côte d’Ivoire] restore the rule of law” [1]. Human Rights Watch similarly called on Côte d’Ivoire to “rebuild,” “reestablish,” and “return to the rule of law” [2]. The International Crisis Group has likewise described the forces who brought current president Alassane Ouattara to power as unable “to establish the rule of law” and urged “the government” to “re-establish order” [3]. And Amnesty International has appealed to Luis Moreno Ocampo, prosecutor of the International Criminal Court (ICC), to “rebuild the rule of law” by investigating human rights violations perpetrated in Côte d’Ivoire since 2002 [4].

Such calls might well prompt one to ask what kind of legality preceded Côte d’Ivoire’s recent troubles and whether it is something to which the country should return.

Archibald Alexander, who advised Côte d’Ivoire on constitutional law following independence in 1960, described the country’s first constitution as unable “to limit government” or “check power” because it “concentrate[d] all power in the hands of the executive” [5]. The constitution’s “dominant President and vague affirmative statement of rights suggest[ed] . . . an authoritarian regime.” Although Alexander praised the constitution for the “legitimacy” it gave Côte d’Ivoire as a “member of the community of nations,” he feared that growing disparities of wealth and power might undermine its effectiveness.

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Figure 2

Côte d’Ivoire’s constitutional history has been dubious ever since. Houphouët-Boigny (Figure 1) initiated multiparty democracy in 1990, but things proved less than democratic when his prime minister, Alassane Ouattara, imprisoned Laurent Gbagbo two years later under an improvised law after Gbagbo led protests against Ouattara's structural adjustment policies [6]. After Houphouët died in 1993, President Bédié (Figure 2) modified the constitution [7] along with the nationality and electoral codes to prevent Ouattara from running for president [8, pp. 42-43]. Then, after Bédié lost power in a coup d’état in 1999, President Guéï (Figure 3) rewrote the constitution and had it approved by national referendum. President Gbagbo, Guéï’s successor, then held power for ten years without a constitutionally sanctioned election to legitimize his extended mandate.

If the rule of law in Côte d’Ivoire has been in large part the law of rulers over ruled, then to what do various organizations appeal when calling for its restoration? Perhaps they portray the original Ivoirian state as lawful in order to avoid de-legitimizing the current one at a time when stability is at a premium. But if Côte d’Ivoire’s history has a lesson to teach, it is that the pretence of legality has offered the ruling class as much a means of misrule--and its critics a mismeasure of accountability--as it has the people any guarantee of transparency.

President Ouattara might change this situation, in part, by advocating for the ratification of the Rome Statute of the ICC. Ratification would commit Côte d’Ivoire to a full investigation and prosecution of war crimes committed by Ouattara’s former enemies as well as by his own partisans [9]. The Rome Statute established and enabled the ICC to adjudicate “serious crimes of concern to the international community as a whole” (Art. 5) which the signatories cannot or do not wish to try themselves (Art. 17) [10]. Ratifying the statute would indicate Côte d’Ivoire’s readiness to pursue such cases or to have the Court do so.

Barring such action, the status of legality in Côte d’Ivoire will continue to reflect a broader crisis of the "democratic" state. Witness the United States’ “unsigning” of the Rome Statute in 2002 [11, 12], its illegal military interventions, neglect of domestic financial crimes, suspension of habeas corpus, and judges and legislators who favor corporate prerogatives over civic interests.

Adhering to the Rome Statute could therefore recenter human rights discussions about Côte d’Ivoire, making Côte d’Ivoire a standard by which to judge Western countries' commitments (or lack thereof) to truly international legal standards. The more likely scenario, unfortunately, is that legal transparency in Côte d'Ivoire will remain as elusive at present as it has in the past, confirming that the rule of law is never a fait accompli but always a work in progress and that appeals to ur-legality may ironically bolster the state at just the moment when those who have most suffered under it have the best chance of forestalling its future excesses.

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Figure 3

Figures

Figure 1. Félix Houphouët-Boigny, Côte d’Ivoire’s first president (1960-1993). Photo: © Autre presse par DR.

Figure 2. Henri Konan Bédié, Côte d’Ivoire’s second president (1993-1999). Source: Extoz.com.

Figure 3. Gen. Robert Guéï, Côte d’Ivoire’s third president (1999-2000). Photo: Agence France Presse.

References

[1] UN News Service. 2011. Ex-leader of Côte d’Ivoire Surrenders as UN Pledges to Help Restore Rule of Law. UN News Centre, April 11 (accessed May 29, 2012).

[2] Wells, Matt and Corinne Dufka. 2011. "They Killed Them Like It Was Nothing": The Need for Justice for Côte d’Ivoire’s Post-Election Crimes. New York: Human Rights Watch (accessed May 28, 2012).

[3] International Crisis Group. 2011. A Critical Period for Ensuring Stability in Côte d’Ivoire. Africa Report No. 176. International Crisis Group: Côte d’Ivoire, August 1 (accessed May 29, 2012).

[4] Amnesty International. 2011. Document — Côte d’Ivoire. Le procureur de la CPI doit enquêter sur les plus graves crimes commis depuis 2002. Amnesty International, October 3 (accessed May 29, 2012).

[5] Alexander, A. S. 1963. The Ivory Coast Constitution: An Accelerator, not a Brake. Journal of Modern African Studies 1 (3): 293-311.

[6] Crook, Richard. 1997. Winning Coalitions and Ethno-Regional Politics: The Failure of the Opposition in the 1990 and 1995 Elections in Côte d’Ivoire. African Affairs 96 (383): 215-242.

[7] N’Guessan, Kouamé. 2002. Le forum pour la réconciliation nationale. 9 octobre-18 décembre 2001. In Côte d’Ivoire: l’année terrible, 1999-2000, edited by Marc Le Pape and Claudine Vidal, 325-352. Paris: Karthala.

[8] Hellweg, Joseph. 2011. Hunting the Ethical State: The Benkadi Movement of Côte d’Ivoire. Chicago: University of Chicago Press.

[9] FIDH (Fédération Internatinale des Ligues des Droits de l’Homme). 2011. Côte d’Ivoire: Dignité, justice et réconciliation doivent prévaloir après l’arrestation de Laurent Gbagbo. FIDH, April 13 (accessed May 29, 2012).

[10] International Criminal Court. 1999-2002. Rome Statute of the International Criminal Court. New York: United Nations (accessed May 29, 2012).

[11] Lobe, Jim. 2002. Bush ‘Unsigns’ War Crimes Treaty. Alternet, May 6 (accessed May 29, 2012).

[12] McLaurin, Luke A. 2006. Can the President “Unsign” a Treaty? A Constitutional Inquiry. Washington University Law Review 84 (7): 1941-1982.