Mali – Constitutional Review: a Senate, for what?

The Constitution of 1992 will be modified one day like all other constitutions to correct its deficiencies and shortcomings, to adapt it to our time if necessary, but for the moment it is the last lock that protects the sovereignty of our country despite the repetitive violations since 2012 to our days by our leaders. According to the blogger and teacher, Yacouba Dramé, lawyer by training, the problem of the country is not a question of text, but it is a matter of man, methods and capacities.

Mali is at a turning point in its constitutional practice and in its existence as a Nation-State. For years, our young Republic has had a political regime (the Constitution) and a political system (the practice), this distinction should be recalled so as not to confuse the constitutional rule and the application of it made by the rulers. Mali lives in a monistic parliamentary regime (the government is accountable only to parliament), bi-representative (the election of the President of the Republic and deputies by direct popular vote). The political system has not changed since Mali has never lived in cohabitation, so the system is a monist parliamentarian.
The Malian President, on a proposal from the Government, adopted a draft constitutional law in the Council of Ministers modifying or adding certain provisions to the Malian Constitution of 25 February 1992. Among the provisions added, we have the creation of a second chamber in parliament, thus transforming our unicameral parliamentary regime to a bicameral parliamentary regime. From now on, Mali is moving towards a political regime with a lower chamber and an upper chamber in parliament. At the Faculty of Law in Bamako, there are rare law students who have not dreamed one day of this constitutional amendment and especially the advent of a Senate. Whenever this stage is passed, the trained jurist thinks first of all of the sovereign, that is to say the people and not of his “textual fantasies”.

The Constitution of February 25, 1992, in its title 12 on the High Council of Municipalities, stipulates in Article 99: “The High Council of Municipalities shall have the task of studying and giving a reasoned opinion on any policy of local and regional development. It can make proposals to the government on any matter concerning the protection of the environment and the improvement of the quality of life of the citizens within the municipalities. The Government is obliged to table a conforming bill within fifteen days of its seizure on the office of the National Assembly. The Government is required to submit an opinion to the High Council of Municipalities for any action concerning the matters referred to in this Article”.

The High Council of Municipalities is an important institution in our institutional architecture, because unlike the other institutions of the Third Republic, it is an emanation of the Malian constituent because it is different from the Senate. A true institution for the consolidation of decentralization policies in its opinion, which binds the government on the environment and the improvement of the quality of life of the citizens (paragraph 2 of Article 99), but also by the designation mode of its members elected by indirect vote and numbering 75 from among the municipal councilors on the District Council and the regional councils (Act No. 01- 006 of April 24, 2001). Unlike the Senate, the High Council does not have the power to a second reading of the laws voted by the National Assembly.

The current President of the Republic, Ibrahim Boubacar Keïta, like his predecessors, is trying to review the Malian Constitution by submitting it to referendum after its adoption by parliament on June 2. The constitution amended in title 7 introduces bicameralism. Article 59 in its first paragraph stipulates: “The parliament comprises of the National Assembly and the Senate”.

But, deep down, what is the Senate?

The Senate is the second chamber of Parliament in many countries. This is the case in France. It has the same role as the first chamber, that of examining the laws, voting them and controlling government action. But unlike the National Assembly, the Senate also defends the interest of territorial communities. As for the National Assembly, it has the final say on the voting of laws (new article 89 of the Constitution proposed in the referendum).

Since 1795, France has almost always evolved with the two chambers system. The first second chamber was born in France with the Constitution of 1795 under the name of the “Council of Elders”, “the Chamber of Peers” in 1814, the true ancestor of the French Senate today is that of the Third Republic which was created in 1875.

In Mali, the question of the appropriateness of a second chamber arises

In 25 years of existence, our Constitution has been the target of three revew attempts. In 2000, President Konaré failed to adopt his draft review (constitutional law of July 21, 2000). Then, President Touré before his departure, wanted to review the Constitution in 2011. The constitutional law of August 2 was abandoned because it could not be proposed to referendum following the crisis of 2012.

This time, President Keïta wants to go quickly or even very quickly. Adopted by the National Assembly on June 3, the draft constitutional law is submitted to a referendum by the President of the Republic on July 9 following the opinion of the Constitutional Court dated June 6 (Between the adoption by Parliament and the convocation of the electoral college, there is not even a week).

In Mali, the question of the usefulness of a second chamber deserves to be asked. The Malian Parliament is as old as the Malian State, from the “Legislative Assembly of the Sudan Republic” in 1959, it becomes the National Assembly of the Republic of Mali with 80 deputies in 1960. The Malian Parliament became a true legislative and representative chamber after the advent of pluralistic democracy in 1992, with a first legislature composed of 116 deputies. The National Assembly is now composed of 147 deputies and sits under its fifth legislature. The Constitution of 1992 recognizes the functions of deliberation and representation of Parliament (Arts. 61 and 65 of the Constitution). The deliberative function is essential because it makes it possible to distinguish the decisions of the Assembly from that of the executive without the principle of the adversarial one. In addition to its functions, Parliament also has the powers to legislate and to control or sanction the government.

In our institutional practice, the National Assembly has almost become a “registration chamber”, because the successive majorities it has known have been illustrated by the lack of assiduous control of the government. Some MPs have been more fervent defenders of the government than some ministers. The Malian deputy uses his first power, that of legislating, but with practices that greatly qualify his control of this power. For although the initiative of laws belongs concurrently to the deputies and to the government (art.75 of the constitution) that of Mali is a real exception because all the laws adopted by the parliament are government bills and not legislative bills. How many Malian MPs know how to make bills? Certainly very little. As for the functions, here too, the Malian parliamentarian is attached to his deliberative function than to his representative function. From the Honorable Hamidou Diabaté in the Third Legislature through the Honorable Oumar Mariko in the Fourth Legislature to the current legislature with the Honorable Mamadou Hawa Gassama – to name a few – the Malian parliament has taken on colors, conflicting debates have emerged among the population with the media coverage of public meetings unlike other times. Our deputies deserts their constituency in favor of the capital Bamako even during periods outside sessions.

That is not all, the Malian deputy is so strong in the matter of passing the law that he never rejects even the law contrary to the aspirations of the sovereign people (The law on the person and the family is the illustration, President Touré following demonstrations by religious associations was obliged to refer this law for a second reading despite being a bill originally emanating from his government). Parliamentary restitution and parliamentary offices are very much lacking in Mali. The real problem of the Malian parliament is not so much the existence of a second chamber but rather the strengthening of the powers and independence of the single chamber.

In this context, it was necessary to give more control powers over the government’s action to the National Assembly, especially by providing the committees with genuine means of monitoring, by setting up parliamentary committees of inquiry, followed by judicial referral so that there is a sanction when it is necessary. As part of the strengthening of the representative functions, all the electoral districts must have parliamentary offices with assistants to bring the elected officials closer to the sovereign people they represent. Allowing parliament to set its agenda (often), strengthening the right of the parliamentary opposition are also measures that strengthen the role of parliament.

The Senate, a chamber of religious people?

The experience of the single parliament in Mali shows us that the country does not need urgently the creation of a new chamber with a blurry, budgetary, non-representative and especially with a mode of election little credible. Article 61 (new) in paragraphs 1 and 2 stipulates: “Senators shall be elected, two-thirds of whom shall be elected by indirect universal suffrage. One third of the senators shall be appointed by the President of the Republic”.

Even more serious, the Honorable Diarrassouba, a cacique of the ruling party (Rassemblement pour le Mali) in an interview given to the newspaper Le Prétoire, speaking of the creation of the Senate, declares: “The creation of the Senate will contribute effectively to the legislative work. You know, there are legitimate people that are not elected. Which Malian can say that Ousmane Madani Haidara, the Sheriff of Nioro, Mahamoud Dicko and Archbishop Jean Zerbo are not legitimate? However, they are not elected. Think of notoriety to help, support and give wise advice to the elected officials who are there, I think that is not a bad thing …”

The question that can be asked is whether the President will appoint religious leaders to come and make laws in the Senate.

Constitutionalists who believe that the constitutionalization of the fight against political nomadism is a good thing, certainly forget that this measure raises problems than it solves. Moreover, a simple law could put an end to this regrettable practice of a selfish political class concerned solely with personal comfort. Paragraph 5 of Article 61 (new) automatically makes resigning senators of their party lose their mandate. And those who have been excluded by their party?

The creation of a second chamber in parliament is not a comfort that our country, our young democracy can afford. Instead, we need to strengthen the means of our single chamber. Moreover, the drafter of the French Constitution of 1958, to whom Mali’s resembles, General de Gaulle, explained in connection with the Senate in 1962: “In the future there must be a legislative and political assembly. Formerly, under the Third French Republic, the Senate was necessary as a counterweight to the nonsense of the National Assembly. But now the counterweight to these nonsense is the President. And if there are major difficulties, the Assembly can censure the government, the President of the Republic can dissolve the Assembly, it is the universal suffrage that decides. So the Senate, as it stands, no longer has its essence”.

The general was not the only denigrator of the Senate. Undisputed master of French public law, Georges Vedel himself did not say that the senators are “the elected of rye and chestnuts” to denounce the conservatism and the role of the rural communes in this chamber.

The President of the Republic must dismiss all his opportunist jurists, dreamers of another time with other agendas which are not those of the sovereign people. The Constitution of 1992 will be modified one day like all other constitutions to correct its deficiencies and shortcomings, to adapt it to our time if necessary, but for the moment it is the last lock that protects the sovereignty of our country despite the repetitive violations since 2012 to our days by our leaders. The problem of the country is not a question of text, but it is a question of man, methods and capacities.

Yacouba Dramé (Blogger, teacher in Mopti)

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