Para-constitutional review under military rule in Francophone Africa: The cases of Burkina Faso and Mali

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Résumé

Over the past five years, Francophone Africa has witnessed a series of coups d’état, resulting in military regimes taking power in many countries. This study analyses the role of constitutional review under military rule in Francophone Africa, using Burkina Faso and Mali as case studies. In both countries, the constitutional courts continue to operate, whereas executive and legislative functions have been assumed by the military. Moreover, the Constitutional Court of Mali and the Constitutional Council of Burkina Faso have not only not condemned the various military takeovers as unconstitutional, but legitimated these with court decisions. Since then, both courts have continued to legitimate the respective military regimes through a series of decisions. Two main forms can be distinguished: on the one hand, decisions approving the further entrenchment of the military in government; on the other, decisions approving the constitutional changes made under military rule. As we show, these cases illustrate how constitutional courts have prioritised the continuous functioning of the state and its institutions under military rule over strict constitutional compliance, thereby marking a departure from applying and interpreting ordinary constitutional rules that have been replaced by what can be called a form of para-constitutionality to fill a vacuum created by the overthrow of elected heads of state and the dissolution of civilian governments and parliaments.

Mots-clés

Legislature, State (computer science), Military rule, Constitutional court, Power (physics), Rule of law, French