Events have been unfolding very rapidly during the day in Burkina Faso.  Who knows what will happen this evening.  I thought it might be useful to clarify an issue that comes up a lots in discussions about the crisis.

One of the key points of the ECOWAS mediators’ proposal released yesterday was to have “inclusive elections.”  (By the way, this was not a negotiated agreement at all, apparently, and President Michel Kafando went on the record today to RFI saying he had not agreed to the text and indeed apparently had not even seen it.)  By “inclusive elections” is meant overturning an amendment to the electoral code that was adopted in April by the transitional parliament (led by Cherif Sy, a long-time opposition journalist).  The new provision read as follows: « toutes les personnes ayant soutenu un changement anticonstitutionnel qui porte atteinte au principe de l’alternance démocratique, notamment au principe de la limitation du nombre de mandats présidentiels ayant conduit à une insurrection ou à toute autre forme de soulèvement ».  Excluded were any person who supported an unconstitutional change that countered the principle of democratic alternance [French word hard to translate meaning peaceful change of power] in particular meaning the Presidential term limits that led to an insurrection or other form of uprising.”  The writing is as unclear as the U.S. Constitution’s second amendment.

There have long been debates in political science and law about when it is legitimate to exclude from elections political parties or individuals that intend to dismantle the democratic process.  This discussion is usually in the context of Islamist political parties.  But of course practically every democracy confronts this issue at one time or another.  The United States, for example, passed the Communist Control Act of 1954.  So the amendment to the electoral law is perhaps not as unusual or unfair on the face of it as some people think.

Why should CDP leaders be subject to such a ban, though? Did they advocate for violence?  The feeling of many of the transition leaders is that they did. Underlying the long hold of power of the CDP (and its predecessors, basically the Compaoré regime) was the threat of violence.  The last clear instance of violence by the CDP was the killing of Norbert Zongo, an opposition investigative journalist and newspaper publisher, in 1998.  But the threat remained after that, and an important unexplained killing of constitutional court judge Salifou Nebie in June 2014 just months before the regime tried to change the presidential term limits law underscored that implicit threat.  Journalists repeatedly stated that they received numerous threats.

The credible threat of violence can make a democracy undemocratic.  Charles Taylor of Liberia famously, or apocryphally, warned Liberian voters that he would resume the war if he did not win (“He killed my ma, he killed my pa, but I will vote for him”).  The transition leaders (the former opposition to the Compaoré regime) believed that the threat was still there, and so the CDP might actually do well in the election, because as a focal point the reasoning that “they are going to have power anyway, so I may as well support them and benefit from the patronage” might be very powerful.  Especially when choosing amongst competing parties that have very limited ideological differences (all of the parties except the small Sankarist parties support the general market and investment friendly economic policies of the past 25 years).  Finally, from the point of view of transition leaders, the main political parties contesting the elections, the MPP and UPC, were led by people who had defected from the CDP (in Roch Marc Christian Kaboré’s case, only in early 2014!) so the ban was on a limited number of personalities who were closely aligned with the previous semi-authoritarian regime, indeed, the ones who held on to the bitter end.

Once the context is properly understood, the intellectual argument against the ban  remains (in general, it is a bad idea for a democracy to restrict rights of citizens who have not actually committed any crimes, determined through some due process), but the emotional appeal of patent “unfairness” or tinge of arbitrariness loses much of its resonance, in my opinion.