Ivory Coast is a country in West Africa. It has a population of about 22 million people. It is the largest cocoa- producing nation in the world. It was formerly colonized by France. Ivory Coast, unlike most other countries in the sub-Saharan Africa has been a beacon and bastion of hope, political stability, democracy and economic prosperity at least in the context of Africa’s standard. It has been spared of the unfortunate perennial problems of war and underdevelopment that characterise the lots of most sister-African countries.
In recent times, the ugly and enervating bug of political instability and constant civil wars that have plagued many African countries that experienced European colonialism hit Ivory Coast leading to a brief civil war that has since left the country split into two along ethnic, religious and somewhat geographical lines between the Northern part of the country which is predominantly Muslim and Southern part which is predominantly Christian. Since 2002 however, a relative and tenuous peace has held sway in this former French West African colony.
On 28 November 2010, an election was organised and conducted in the country that incidentally was supposed to finally re-unify the entire country once again. The result of this important election in Ivory Coast conducted by the Ivorian Independent Election Commission indicated that the Opposition Leader, Alassane Ouattara has won the presidential election against the incumbent President, Laurent Gbagbo. However, the incumbent president, Laurent Gbagbo alleged electoral malpractices and took his case to the Constitutional Council of Ivory Coast, which is the highest court of the land in Ivory Coast. The Constitutional Court reversed the result of the election as declared by the Independent Electoral Commission and declared that the incumbent president, Laurent Gbagbo has won the election on the basis that the election was rigged in favour of the Opposition leader, Alassane Ouattara.
The international community, the Economic Community of West Africa States (ECOWAS) a regional grouping of West African countries, the European Union (the EU), the United States and France have all since recognised the result of the election as declared by the country’s Independent Electoral Commission while completely discountenancing and disregarding the decision of the country’s supreme judicial authority – the Constitutional Council of Ivory Coast. Today, the country of Ivory Coast is teetering precipitously on the brink of an all out war with its portentous and catastrophic far-reaching consequences on the entire West African sub-region.
This article seeks to examine and analyse the current political situation in Ivory Coast and the critical issues involved in this dangerously pernicious conflict in that country and seeks to put the issues and the conflict in the country in context. It is important that the objective rule of law, the principles of legality and constitutional legitimacy should ultimately prevail in any resolution of this political crisis in Ivory Coast. It is this writer’s opinion that the issue in the nascent political logjam in Ivory Coast has not been objectively and comprehensively examined and analysed and that the position adopted by the so called international community in relation to this political imbroglio is fundamentally flawed and cannot be justified by reference to any coherent principle of law – be it domestic/national or international as far as the conflict is concerned. The writer’s analysis draws on the juristic and political factors in issue in that country.
Generally speaking, in every organised and recognised modern state, elections are organised and conducted by a properly constituted body that serves as an impartial and independent umpire in the conduct of such an election in the country. In Ivory Coast, in this regard, we believe that the Independent Electoral Commission that conducted the disputed 28 November 2010 election is a properly constitutionally and constituted electoral body charged with the conduct of the instant election in Ivory Coast. In the same vein, in most modern countries, there are also properly constituted body that handles and adjudicates electoral grievances/disputes and complaints emanating from or associated with the conduct of elections. We are not aware of any electoral body in the modern world whose decisions or results are final, non-challengeable and irreversible. In fact it is consistent with universally recognized democratic principles and values that a party to an election/electoral process should be able to challenge the validity or integrity of an election. Most modern countries have different judicial or quasi-judicial organ or body that veritably performs this vital function.
In most countries of the world, this role is usually vested in the country’s judicial or adjudicatory bodies. In the United States of America in 2002 presidential election for instance, the U S Supreme Court had to deal with the crisis associated with the conduct of the US presidential election in the southern state of Florida where there was some anomalies in the voting process. The then Us vice president, Al Gore who contested for the office of the president against George Bush (jnr) actually won the largest majority of the votes cast in that US presidential election. However, the US Supreme Court intervened and declared George Bush (jnr) as the elected president and eventual winner of that disputed election.
In the same vein, in the Bahamas as in most other countries, the Election Court which is constituted by the Supreme Court of the Bahamas adjudicates election-related disputes and has been known to have invalidated or nullified the outcome or result of some elections and declared the opposite or alternate candidate as the winner or duly elected person. In Nigeria, whose president, Mr. Goodluck Jonathan is incidentally the chairman of the regional Ecowas grouping and who has taken side with the opposition leader in Ivory Coast in the current electoral dispute in that country, elections results are invariably acrimoniously and fiercely contested and in many instances too numerous to mention here, election results as announced and declared by Nigeria’s Independent Electoral Commission (INEC) have been voided with alacrity and the opposing candidates who would have previously lost according to the result of the Independent National Electoral Commission are declared as the winners.
The point we are trying to make here is that the Constitutional Court of Ivory is a properly and constitutionally constituted body charged and vested with the power/jurisdiction to adjudicate and determine election related disputes and grievances and complaints in Ivory Coast just like the US Supreme Court, the Bahamas Supreme Court and the various Election Petitions Tribunals and the Court of Appeal and the Supreme Court in Nigeria.. As previously mentioned, in Nigeria, the courts adjudicate election disputes and have indeed voided and nullified or invalidated some results declared by the Independent Electoral Commission and substituted the other candidates as the winners. The incumbent president of Ivory Coast, Mr. Laurent Gbagbo has not declared himself as the winner or president-elect of the disputed presidential election in Ivory Coast.
What happened in Ivory Coast is that after the result of the instant presidential election in that country was announced and the Opposition Leader, Mr. Alassane Ouattara was declared the winner and president elect, Laurent Gbagbo and his Party went to the Ivorian Constitutional Council, which is the legitimate highest court of appellate jurisdiction in his country with requisite power to adjudicate election-related disputes and grievances (i.e. the Supreme Court of Ivory Coast, for that matter) and challenged the result of the 28 November 2010 election..The Constitutional Court in the course of the exercise of its adjudication function with respect to the disputed election result invalidated the result of the election and reversed the result and declared the incumbent president, Laurent Gbagbo as the duly elected president and lawful winner of that election.
The question one may be tempted to ask from a purely jurisprudential point of view and which in my mind is the critical issue in all these cacophony about the 28 November 2010 election in Ivory Coast is; on what basis is the international community disputing the outcome or result of the process in Ivory coast as declared by the Constitutional Council of Ivory Coast? Is it on the ground of want of or absence of legitimacy, constitutionality and/or propriety? Is the Constitutional Court of Ivory Coast not a properly and constitutionally-constituted body? Does it not have power to do what it has done with regards to this November 28 2010 election in Ivory Coast? Juristically speaking, we are of the humble opinion that the Constitutional Court of Ivory Coast can rightly lay claim to all of the above ie legitimacy, constitutionality and legal propriety in the context of this controversial election and subsequent reversal of the result as declared by the Ivorian Independent Electoral Commission.
France, the former colonial master of Ivory Coast has speedily and capriciously recognized the Opposition leader, Alassane Ouattara as the duly elected and legitimate president of Ivory Coast and winner of the disputed election without justifying its stand by reference to principles of legality in the context of the legal framework of Ivory Coast whose highest court of appellate jurisdiction has declared that Laurent Gbagbo is the lawful and rightful (de jure) winner and president-elect of the disputed election of November 28 2010.
One will wonder whether if the situation were to be reversed for instance, whether the sanctimonious pontification of the international community will not be different. For instance, if the incumbent president, Mr. Laurent Gbagbo has been declared the winner in this election by the Independent Election Commission of Ivory Coast and if the Opposition leader, Alassane Ouattara has gone to the Constitutional Court of Ivory Coast to challenge the integrity or validity of the election’s result and has secured a favourable outcome of that challenge as Laurent Gbagbo did in the circumstances; the question that is quite apposite in this regard will be - whether the international community would be maintaining the same position and stance as they are currently maintaining with respect to the current situation in Ivory Coast?
In essence, if the Ivorian Independent Electoral Commission has declared the incumbent president, Laurent Gbagbo as the lawful winner of the November 28 election and if the opposition leader, Alassane Ouattara has gone to the Constitutional Court – which we cannot over-emphasise the fact is the highest Appellate Court or judicial or adjudicatory body of the land, complaining of massive rigging of the election in the southern part of the country and if the Constitutional Court has upon the exercise of its legitimate adjudicatory function or role and power had declared him as the winner and president-elect – it is doubtful whether the so-called international community would insist that Laurent Gbagbo, the incumbent president was still the winner and the president –elect on the basis that the Independent Election Commission has already declared him as the winner and as the president-elect. Is there any law in Ivory Coast that provides that the decision or result of the Independent Electoral Commission in that country is non-justiciable and not amenable to challenge?
We vividly recall that sometimes ago, there was a similar event in the former Soviet Republic of Ukraine where the Orange Revolution which was hinged on the outcome of a post election verification process of the result of the election in that country prevailed and the former president Vicktor Yutshchenko was declared as the rightful winner and president –elect instead of the then incumbent president, Viktor Yanukovitch who was previously declared as the winner and president-elect by the country’s Electoral Organ. Other examples are legion.
The Crisis of Legitimacy
It should be acutely appreciated by honest and reasonable observers of the current event in Ivory Coast that both the Independent Electoral Commission of Ivory Coast and the Constitutional Court of Ivory Coast are ‘both’ properly-constituted and constitutionally- established bodies in Ivory Coast whose decisions have inherent, essential and derivative constitutional validity and juristic legality and as such extreme caution should be exercised in dealing with this issue and jumping to any sweeping and slippery and ill-conceived conclusion as to who won the election and which decision is legally valid would be tantamount to sophistry and casuistry.
Any analysis as to the propriety and legality of the decisions of these two established bodies in Ivory Coast must be justified by reference to the domestic laws of the country ie the legal framework in Ivory Coast. Perhaps, the relevant question in this respect will be; who won the election according to the recognized extant/existing laws of Ivory Coast and not according to the opinion of the international community?
If the position of the international community is ‘incontrovertibly correct’ and upheld in this matter, it means that the sovereignty of the country of Ivory Coast as a recognised state under international law is impugned and undermined and this will create a dangerous precedent in Africa. They, the international community, have not done this kind of political shenanigan and legal skullduggery in other countries of the world. The integrity of the constitutional Court of Ivory Coast draws fundamentally on the sovereignty of that country as an independent, sovereign nation or state whose internal or domestic processes ought to be respected and effectuated in accordance with accepted principles of international law and legitimacy.
Hence, the other apposite questions in all these in addition to the veritable one as to who won the election under the prevailing/existing laws of the country of Ivory Coast should be; Did or whether the incumbent president, Laurent Gbagbo, capriciously and arbitrarily set-up the Constitutional Court after the result of the election of 28 November 2010 was announced and he found out that he had lost the election and with intent to perpetuate himself in office or power as the president of Ivory coast? Was this Constitutional Court in Ivory Coast in existence prior to the conduct of this election whose results were disputed and which dispute fell to be adjudicated by the Constitutional Court of the land as an incident of the exercise of its adjudicatory power or function? Would the Opposition leader, Alassane Ouattara not have had recourse to this Constitutional Court if he had felt that the election was rigged and if he had obtained a favourable result overturning the victory of his opponent, will the international community insist that the result of the Independent Electoral Commission be upheld and completely discountenance or disregard the decision of the highest appellate court of the land?
Under what law is the result of the independent Electoral Commission of Ivory Coast accepted and recognized by the international community and the decision of the Constitutional Court of the same country impugned, discountenanced, ignored and rejected? Where do sovereignty, legitimacy and legality lie in all these?
The underlying hidden agenda
France, as we all know is a former colonial power known to be very blood thirsty in her foreign policy towards Africa and France, once again is presently fanning and stoking the embers of internecine fratricidal conflict in Ivory Coast. They want Ivory Coast to go the way of Rwanda – where over one million people were killed during the genocide in that country in the early1990s under the watchful eyes of French military contingent. Africans will never forget that during the Rwandan genocide that France had military contingent in Rwanda and that they gleefully stood aloof and callously watched as over one million people were slaughtered. Many people now seemingly believe that what happened in Rwanda was a callous and diabolical means of sinister population control strategy in Africa by gratuitously allowing one million people to be needlessly decimated. A single tank fire or even an over flight of a military fighter jet over Rwanda towns and cities during the genocide would have scarred the perpetrators of genocide out of their wits and thereby saved many lives. Why didn’t France and her military contingent in Rwanda intervene to stop the atrocious genocide in Rwanda? Where was the international community when over one million Rwandan people were killed in a space of three months of ugly slaughter of helpless people in that country?
In the light of the foregoing, we strongly call on Ecowas to repudiate their threat of sending military interventionist force to Ivory Coast as this has the potential to push Ivory coast to an all out civil war with far reaching implications for the West African sub- Saharan region. We are of the opinion that this crisis following the disputed presidential election in Ivory Coast should be resolved within the framework of a negotiated settlement. Asking the incumbent president Laurent Gbagbo to step down peacefully is constitutionally and legally wrong. The basis upon which the Opposition leader, Alassane Ouattara has been internationally recognised as the president-elect of Ivory Coast is fundamentally flawed and cannot be justified by reference to any law in Ivory Coast on international law for that matter. The basis is not legally supported.
Mr. Ouattara’s victory in the 28 November polls was overturned by the Constitutional Council, the highest judicial body or court in Ivory Coast – on the grounds of claims that the results were rigged in his favour in the Northern part of the country which seemingly is his main political base. Has this claim been independently verified by an impartial third party? Does the international community have the power or moral rectitude to subvert the legitimate adjudication of the Constitutional Court, the highest court of the land in Ivory Coast?
There has been strong indications that the two men at the centre of the dispute - the incumbent president, Mr. Laurent Gbagbo and the opposition leader, Alassane Ouattara have both indicated readiness and preparedness to see a recount of the votes or further verification of the results of the polls by neutral and independent observers. If this is correct then the question that readily comes to our mind will inexorably be; why not pursue and exhaust this option since both men challenged the integrity of the two appropriately constitutionally and legally constituted bodies in their country - the Independent Electoral Commission and the Constitutional Council? Why would the ECOWAS yield to France’s pressure for military intervention in Ivory Coast? One sincerely and truly wonders whether there are indeed some sinister and hidden motives in refusing to take up the challenge being offered by the two antagonists in this disputed election who have signified readiness for a recount or further verification of the results by neutral observers.
Again, we see in all these a sinister attempt by France to needlessly plunge Ivory Coast and the West Africa sub-region into a cataclysmic holocaust of unimaginable proportions. France’s foreign policy thrives well in internecine fratricidal conflict. Rwanda, remains a veritable example in this regard.
Besides, if the decision of the Constitutional Court (the supreme Court in (Ivory Coast) is not recognized and respected, this will set a dangerous precedent in Africa as henceforth election results will be declared by the international community and France and not by the appropriate requisite institutionalized bodies of a country. Did the international community determine the outcome of the US presidential election in 2002 or was it determined ultimately by the US Supreme Court?
The Nigerian president, Goodluck Jonathan in his capacity as the Chairman of the ECOWAS regional grouping should not allow himself to be manipulatively hoodwinked by the cacophony of the international community and France in a desperate attempt to show himself as a good guy ahead of his own country’s proposed election in 2011 because the common aphorism which says that whatever goes around comes around holds true in this regard.. If for instance, after the proposed presidential election in Nigeria in 2011, someone is declared the winner and president-elect instead of him who will likely contest the election on his party’s platform and if he, the incumbent president challenges the result of the upcoming 2011 presidential election at the Supreme Court of Nigeria and if the Nigerian Supreme Court rules in his favour, will he step down on the ground that the decision of the Nigerian Supreme Court is contrary to the results as announced by the Nigeria’s Independent Electoral Commission?
We call on the good people of Ivory Coast in particular and the Ecowas in general to exercise maximum restraint in dealing with this crisis in Ivory Coast and not to allow France or the so-called international community to hoodwink them and avoid any step like the threat to use military intervention in Ivory Coast which may aggravate the political crisis further into a cauldron of cataclysmic vortex of internecine bloodbath in the West African sub-region. The seemingly failure of mediation efforts by the former South African president, Thabo Mbeki and the head of the African Union Commission, Jean Ping, should not be seen as the end of road in the effort to avert a bloodbath and resolve the political impasse. Ecowas military intervention is bound to fail. Ivory Cast is heavily a migrant country with over 10 million people from sub-Saharan African living and eking out a living in that country. Their citizens will be victims of internecine fratricidal war which any military intervention by Ecowas will likely engender.
We are discombobulated that the African Union- appointed mediator, Kenya’s Prime Minister, Raila Odinga, has towed a perplexing hard-line and hawkish approach to the resolution of the conflict. This son of Africa to the consternation of peace-loving Africans – was the first African leader to call for military action. Raila Odinga is a disappointment in this regard indeed! Even Mr. Odinga – as we would recall was named Kenya’s prime minister in 2008 in a coalition government5 with President Nwai Kibaki after weeks of political unrest in an equally disputed election in his country has the effrontery and ‘moral justification’ to dismiss the possibility of power-sharing between Mr Gbagbo and Mr. Ouattara, saying with unusual ting of bellicosity that the Election Commission, not the Constitutional Court, was the only legitimate authority to determine the winner. Raila Odinga has not told us that the Constitutional Court of Ivory Coast is not a properly constituted adjudicatory body in Ivory Coast. His position cannot be legally supported.
We all need to remember that elections are conducted in accordance with the domestic laws of a country and in this regard we must stick to the domestic laws of a sovereign and independent country, Ivory Coast whose final court, the Constitutional Court has adjudicated on the disputed election. If the international community now come and say that this is not accepted and that the Opposition leader is the new president based on the result of the election by the Independent Electoral Commission in Cote d’ Ivoire, it will mean that henceforth a new precedent has been set in the history of West African elections and hence forth after every election in Africa, an aggrieved person cannot have access to the constitutionally adjudicatory body of highest authority that may be charged with the responsibility of receiving and hearing and adjudicating any electoral grievances, complaints and petitions in his country. The international community has usurped this role in Africa and a new legal principle or norm has been foisted on Africa which can be veritably stated as follows …- that -… “once the Electoral Commission of any country in Africa announces the result in or of any election, to all intents and purposes and for all practical effects, - that decision or result becomes final, conclusive and irreversible”. Is this the precedent that is being set here by the international community in Africa?
While we are calling for extreme and restraint and circumspection in the management of this emerging crisis and the gathering storm, and we urge the so-called international community to reconsider its stance and position and to pursue peace in Cote d’Ivoire by appointing impartial bodies to conduct a recount of the votes or to subject the entire electoral process to further verification with a view to determining the lawful and rightful winner in that election since both parties are challenging the integrity of the result and decision of the two democratic institutions in their country – the Independent Electoral Commission and the Constitutional (Supreme) Court. We call on Nigerian president, and the chairman of the regional grouping Ecowas, Mr. Goodluck Jonathan, the AU, the UN, the EU, France and other stakeholders in the crisis to show and demonstrate maximum restraint and maturity and not to allow the situation in Ivory Coast to degenerate into an all out war whose horrific implications will be far-reaching even beyond the borders of Ivory Coast. In this regard, we solemnly call for tact and diplomacy in handling this crisis given the ethnic and political complexities of Ivory coast – a country that has witnessed a civil war and is still presently divided between North and South.
We are of the view that this belligerent language of forceful intervention in Ivory Coast borders on idiocy in the high places, lack of critical foresight and objective perspective and above all, a profound and pathetic lack of true appreciation of the real facts on the ground and issues involved in this political impasse in Ivory Coast. Ivory Coast is today a country that is sharply divided along ethnic lines. Any form of forceful intervention is a recipe for Lebanonisation, Rwandization, Sudanisation or Somalinization of this unfortunate, beleaguered West African country that until recently was a beacon of peace, economic prosperity and political stability in Africa.
Intervention, according to J J Rawlings, erstwhile president of Ghana, will not usher in or guarantee a definite resolution of the crisis but may likely further exacerbate an already volatile situation with the likely potential to erupt into a full-scale civil war with horrific consequences. This consequences Rawlings is talking about will likely engulf other West African sub-regional states.
According to Rawlings, there have been more outrageous elections results that have taken place in other parts of the world without intervention. We recently witnessed situations of somewhat similar nature in Guatemala, Algeria, Mauritania, Georgia, Ukraine, Turkmenistan, Afghanistan etc and we did not see or hear intervention. When France pressured the then military backed government in Algeria to cancel an election which the Front for Islamic Salvation (or FIS) was poised to win, there was not call of intervention by the UN, US, France, EU, the International Community. The above clearly underscores the hypocrisy, duplicity and double standard of the so-called international community.
It is also worrying as noted by ex President J J Rawlings that in all these that a lot has been left unreported by the international media, The tendentiousness of their reportage in this Ivorian crisis is not only ludicrous but indicative of the fact that truth is blatantly ignored and facts are skewed up and presented in a manner to serve a certain sinister unknown and ulterior motives. All these tend to suggest that there is a well-orchestrated conspiracy not to tell the truth but to inflame the nation.
J J Rawlings lamentably observed that against the backdrop that reports by some of the major election observers condemning the conduct of the election of November 28 2010 in Ivory Coast in several parts of the country where it was reported that there were massive rigging have been totally ignored by the international media, we are fortified in our view that some sinister plot to destabilize Ivory Coast is at work in all these. Factually speaking, some regions in Ivory Coast in this November 28 2010 election recorded votes far higher than the total list of registered votes with one area actually having 159, 788 ‘valid’ votes from a list of 48, 788 registered voters. It is also a fact that in certain areas in the North of Ivory Coast during the conduct of the November 28 election, the Independent Electoral Commission staff and some party polling agents were not allowed to manage the process as was supposed to be. J J Rawlings was strongly of the view that all these require that a proper investigation should be urgently instituted and in this regard, we concur with him and further reiterate our urgent call for a full investigation of all the circumstances surrounding this election and an exhaustion of all the peaceful options rather than a military intervention which cannot solve anything let alone establish a peaceful political transition
Ominously, according to J J Rawlings, there are more than meet the eyes in this impasse in Ivory Coast .Many unanswered questions abound. The details of the report of AU envoy, President Thabo Mbeki should be made public to help unravel the nature of the situation of this imbroglio.
Lastly, I am appealing to the UN Secretary General Ban Ki-Moon to support an independent body who will expeditiously liaise with the Ecowas to investigate all the circumstances surrounding this 28 November 2010 election and possibly convoke a forum during which both parties in the crisis as well as representative of all observers missions who covered the election will ventilate their case and be heard. Eminent African statesmen like Nelson Mandela, Joachim Chissano, Sam Nujoma and Mbeki can be used to facilitate a speedy convocation of such a forum to seek to resolve this impasse in the interest of peace in the West African sub-region.
Ivory Coast must not be allowed to go the way of Rwanda, Somalia or Sudan and previously, Liberia and Sierra Leone. The implications will be far-reaching and may likely engulf other countries in the West Africa Sub-region with its catastrophic far-reaching consequences.
To France in particular and the International Community in general, please give peace a chance in Cote d’Ivoire and spare us another costly internecine fratricidal conflagration. It is typical of France to foment conflicts they could not manage and fan the embers of conflict in their former colonies in Africa so as to destabilize the countries and render them more vulnerable and dependent on France – ala a form of re-colonisation. We say to France that by the grace of God this crisis shall pass. Ivoirians will not slaughter themselves and there will be no civil war in Ivory Coast and France’s plan will get nowhere this time around and life in Cote d’Ivoire will return to abnormal normality at least rather than an all out bloodbath. History will absolve me.
Clement Chigbo in Sahara Reporters, le 6 janvier 2011