THE AFRICAN STATE: A JURIDICAL CREATURE?

The law and the supreme law – the Constitution – are the prime formal institutions of a modern state. ‘Neo-patrimonial theory’ – the dominant, although contested paradigm to the study of African politics – posits that the African states are characterised by coexistence of formal institutions and formal rules on the one hand, and informal behaviour on the other.Footnote ³ This interaction provides rent opportunities for political elites and thus access to the state is highly sought and prized.

In practice, however, scholars of African politics have paid more attention to informal institutions as such than to their interaction with formal ones. Concepts such as ‘personal rule’ (Jackson & Rosberg Reference Jackson and Rosberg1982a), ‘Big Man rule’ (Posner & Young Reference Posner and Young2007), ‘economy of affection’ (Hyden Reference Hyden2005) or ‘instrumentalisation of disorder’ (Chabal & Daloz Reference Chabal and Daloz1999) have dominated the debate over African politics. The view that the State in Africa is a mere façade and that ‘legitimacy is firmly embedded in the patrimonial practices of patrons’ (Chabal & Daloz, Reference Chabal and Daloz1999: 16) or in a ‘cultural matrix’ revolving around metaphors of family and food (Schatzberg Reference Schatzberg1993) makes it difficult to understand how the law and the Constitution may occupy a central place in the discourse of African political elites.

The neglect of the influence of the law also seems motivated by the acknowledgement that, in Africa, it does not play the role of limitation of the arbitrary character of power that is inscribed in Western conceptions of democracy. The practitioners of international institutions and NGOs routinely deplore the weak development of the rule of law in Africa and in other parts of the developing world and develop projects aimed at strengthening it. The UN, for example, have a dedicated inter-agency working group on rule of law and most current and recent UN peace operations in Africa have included a ‘rule of law’ section.Footnote ⁴ On another level, however, the acknowledgement that African reality is dominated by informalisation prompts another question: why do formal and legally defined institutions, particularly the state, persist in spite of their apparent inefficacy?

More than 20 years ago, Robert Jackson and Carl Rosberg (Jackson & Rosberg Reference Jackson and Rosberg1982b; Jackson Reference Jackson1990) tried to respond to this question by drawing attention to the ‘juridical’ character of Africa's states and of their sovereignty. According to Jackson, most African states issued from decolonisation were not endowed with full ‘empirical sovereignty’ at independence, i.e. the capacity to hold the monopoly of force over territory. Nevertheless, the international system had conferred to these states a ‘juridical sovereignty’ that allowed them to persist in spite of their evident shortcomings.

Jackson's arguments have been considerably nuanced by other scholars (Clapham Reference Clapham1998; Krasner Reference Krasner1999; Herbst Reference Herbst2000). Notably, Jeffrey Herbst has argued that it is more appropriate to trace the origins of ‘juridical sovereignty’ to the colonial period. Christopher Clapham has observed that Jackson paints a binary opposition between ‘empirical’ and ‘juridical’ states, while the matter is more one of ‘degrees of statehood’. Stephen Krasner has noticed that absolute sovereignty has always been to some extent ‘organised hypocrisy’ even in the Western world. Moreover, with the redefinition of state sovereignty that has taken place after the fall of the Berlin Wall, the protection that the international society grants to the ‘juridically sovereign’ states has ceased to be absolute and unconditional as Jackson paints it. Jackson's observations, however, remain valuable in one respect: the ‘juridically sovereign’ nature of the African states has important implications for the way these states conduct their international relations and for their internal mode of governance.

Pierre Englebert (Englebert Reference Englebert2009) is one of the rare authors who has explored the internal implications of the juridical sovereign nature of African states. Englebert remarks that the increasingly qualified protection of international society does not explain the relative scarcity of internal challenges to the formal existence of the state in Africa. Englebert is particularly concerned by the fact that, even in situations that could be qualified as state failure or de facto secession, political actors continue to define their actions with respect to the ‘failed’ or divided state and the population expresses strong feelings of belonging and identification with the state.

According to Englebert, the legal nature of the African state and its juridical sovereignty may help unfold the paradox of the vitality of the state. For him, juridical sovereignty confers legal command to the African states. This is defined as ‘the capacity to control, dominate, extract or dictate through the law’ (Englebert Reference Englebert2009: 62). Englebert observes that even if the state is no longer capable of performing its public functions it still retains this residual command, which stems from the fact that the state is the law. He sees in the juridical nature of state power, acquired from international sovereignty, a key for explaining a puzzling phenomenon acknowledged by anthropologists such as Jean and John Comaroff (Comaroff & Comaroff Reference Comaroff and Comaroff2007): the relevance of a ‘fetishism of the law’ in the midst of political disorder in Africa and in other countries of the ‘global South’.

Englebert's concept of legal command finds an expression in many instances, such as the production of official certifications and identity documents, the printing of currency, and the right to seize public resources. The definition of the access to citizenship is perhaps the more powerful dimension of this authority, as citizenship grants access to the other benefits that legal command may provide.

‘Legal command’ is crucial to understanding the functioning of neo-patrimonial systems. It offers opportunities for rent seeking not only to the main power holders, but also to the many local authorities, state agents and intermediary actors that are dominated and dominant at the same time. The fact that these authorities embody the legitimacy of the state, defined in legal terms, becomes crucial to their capacity to extract rents even in the absence of administrative effectiveness and coercive capacities. The centrality of ‘legal command’ implies thus an essentially instrumental view of the law, which becomes a tool to exercise power over others, often in the pursuit of private gain, rather than an instrument for limiting the state's arbitrary power. The ‘rule of law’ is overcome by the ‘rule by law’.

Englebert argues that there is a link between juridical sovereignty and legal command on the one hand and the emergence in Africa of a particular type of nationalism. This nationalism is deprived of the liberating qualities attributed to the assertion of national identity by much early literature on Africa's nationalism (Young Reference Young1986). First, this nationalism is diversionary and is agitated by the elites in power for neutralising internal and international threats to their domination. Its aim is to imprint the state's external sovereignty into the hearts and minds of African citizens, in order to make the juridical state appear natural and divert the blame for development failure (Englebert Reference Englebert2009: 198–9). Thus, elite-driven nationalism in Africa tends to be self-serving and instrumental, rather than laying the ground for a political project of emancipation and development.

Englebert observes, however, that nationalism is also produced at the grassroots level. In fact, what gives to legal command its resilience and its force is the fact that its benefits are diffused within the society. However, ‘this type of nationalism arises from competitive contact with others from the same country, it is solitary and mutually alienating, rather than the expression of the bonds of the community’ (Englebert Reference Englebert2009: 204).

Although this article will focus mainly on the diversionary use of nationalism at the elite level, the concept of ‘solitary nationalism’ seems particularly appropriate to make sense of some troubling characters of the Ivorian pro-Gbagbo movement of the ‘young patriots’ (Banégas Reference Banégas2006a; Arnaut Reference Arnaut2008; Koné Reference Koné2011; Cutolo & Banégas Reference Cutolo and Banégas2012). Research carried out among the patriots has frequently highlighted the extreme factionalism that characterised the movement (Koné Reference Koné2011; Cutolo & Banégas Reference Cutolo and Banégas2012), which is all the more impressive given the absence of substantial ideological differences among groups and factions. These factional struggles make sense only by looking at the competition among patriotic organisations for the benefits distributed by the Gbagbo regime and for additional material and moral advantages that stem from being perceived by the Ivorian public as the ‘true’ representatives of the patriotic movement (Koné Reference Koné2011). Thus, Ivorian patriots competed for power and resources obtained through proximity with the state, the only actor that could give them a clout of legitimacy through its monopoly of legal command.

LEGAL COMMAND IN CÔTE D'IVOIRE'S HISTORY

Pierre Englebert's theory provides a framework for understanding the connection between legal command and ultra-nationalism. Arguably, however, the importance of legal command in politics has not been always constant in Africa and has not everywhere led to the emergence of an ultranationalist ideology imbued with legalism such as in Côte d'Ivoire under the Gbagbo presidency. How can we thus explain Côte d'Ivoire's specificity? To some extent, Englebert's theory is able to account for the emergence of legalism in Côte d'Ivoire and not elsewhere. However, there are also additional elements that contribute to an explanation of the Ivorian case, in particular the relation between legalism and (flawed) democratisation.

It can be argued, following Englebert's framework, that the linkage between nationalism and legalism is more likely to emerge when nationalists have very little to cling to beyond ‘the juridical state’. ‘Illegitimate post-colonial statehood’ (Englebert Reference Englebert2000: 12) is an African phenomenon, but not all African states suffer to the same extent from such a ‘legitimacy deficit’. Some African countries share a sense of common cultural identity or a history of decolonisation struggle that provide a more credible narrative to would-be nationalists. In spite of Gbagbo and the young patriots’ efforts to wrap their political struggle into a rhetoric of ‘second independence’ (Banégas Reference Banégas2006a), Côte d'Ivoire lacks both. During its first decades of existence, the nation very much identified with its leader Houphouët-Boigny, who shaped it in his image. The experience of the Gagnoa revolt, which has often been regarded as one of the founding moments of Gbagbo's nationalism (Marshall-Fratani Reference Marshall-Fratani2006), was a localised and ethnically bounded one that could not provide the basis for a nation-wide nationalist ideological project.

To understand the rise of an ultranationalist legalist discourse in Côte d'Ivoire one has also to consider the context of economic recession and state decay that the country experienced since the end of the Houphouët-Boigny's regime. Englebert observes that a radicalisation of nationalism, leading to the emergence of forms of ‘nativist nationalism’ (Bøås Reference Bøås2009; Dorman et al. Reference Dorman, Hammet and Nugent2007) is more likely to emerge in a situation of shrinking state patronage, where some groups try to bar other groups from access to citizenship and to the legal command that stems from it. He also argues that the importance of ‘legal command’ is connected to the crisis of the state in its capacity to control effectively the national territory and implement its policies. The more a state is able to exercise effective control, the less it is obliged to insist on its legality. Ultranationalist legalism in Côte d'Ivoire has emerged in a context where the Ivorian administrative apparatus, which was known for its relative efficiency under Houphouët-Boigny, had experienced a decline due to the detrimental identity politics of the 1990s. In particular, the loss of control of more than 50% of the official state territory following the 2002 rebellion has provided the main background for its emergence.

The role of the Constitution and the law in Côte d'Ivoire should also be interpreted within a longer historical context. When Côte d'Ivoire adopted its first Constitution as an independent state in 1960 there was already an understanding that the typical Western notion of a Constitution as a tool for limiting the power of the ruler had little relevance (Alexander Reference Alexander1963). The Constitution sanctioned the prominence of the president and the executive and left little powers to the legislative branch. Moreover, the Constitution was very little ‘popularly owned’, both in the sense that its main source of inspiration was exogenous and was provided by the French Constitutional tradition and that it had been drafted with little popular involvement by a small political élite composed by those who were called at the time évolués. The provisions of the Constitution on free and fair election and the right to form political parties remained de facto unapplied for most of the Houphouët-Boigny era. Nevertheless, A.S. Alexander, an American lawyer who worked as an assistant to the President of the Ivorian Supreme Court in 1961–62, contends that Houphouët-Boigny took the Constitution seriously, in so far as he recognised it as having an important legitimising role, and saw it as an instrument to consolidate his power. The Ivorian Constitution was not a brake on government action but could work as an accelerator (Alexander Reference Alexander1963).

Although these remarks suggest that Houphouët-Boigny was already aware of the importance of legal command, it shall also be remarked that he never relied primarily or exclusively on the appeal of legalism for legitimising his rule. His political ability in defusing any threat to his rule, the economic successes of his regime and his capacity to readapt Akan traditional notions of legitimate rule (Maddox Toungara Reference Maddox Toungara1990) were equally key. Moreover, Houphouët-Boigny's system of personal rule was very much condoned at the internal and international level, at a time when authoritarianism and one party rule were seen as necessary elements in a process of nation building. Thus, Houphouët-Boigny's legitimacy was not continuously questioned due to the democratic deficit of his regime, nor was he obliged to justify his actions with reference to any notion of democracy.

For understanding how legalism has become a central factor in the Ivorian political arena, it is necessary to go back to the crisis of the Ivorian political system at the end of the 1980s and the distortion of the democratic game that characterised the Ivorian early experience with multi-party politics. As other African countries (Bratton & Van de Walle Reference Bratton and Van de Walle1997), Côte d'Ivoire was invested in the early 1990s by the wave of post-cold war political liberalisation. However, the introduction of multi-party politics and of some formal features of a democratic system has not led to the establishment of a full and sustainable democracy. Façade democratisation has not been accompanied by the development of a culture of dialogue and by the acceptance of political competition (Akindès Reference Akindès, Whitfield and Mustapha2010) but has resulted in the fragmentation of the Ivorian political arena into mutually intolerant ‘blocks’.

The three leaders who have dominated the Ivorian political game since the death of Houphouët-Boigny – Henri Konan Bédié, Laurent Gbagbo and Alassane Ouattara, plus the putschist general Robert Gueï, killed in 2002 – have been, to a different extent and in different manners, responsible for this downward spiral (Dozon Reference Dozon2000; Vidal Reference Vidal2003; Bouquet Reference Bouquet2007; Akindès Reference Akindès, Whitfield and Mustapha2010). Political dynamics have reinforced the association of each of the three leaders with a broad ethno-regional grouping: Bédié with the baoulé of central Côte d'Ivoire, Ouattara with the Ivorians of Northern and foreign origins (the so-called dioula)Footnote ⁵ and Gbagbo with the autochthonous groups of Central-Western and South-Eastern Côte d'Ivoire, historically hostile to the regime of Félix Houphouët-Boigny. Since 1993, both the power-holders and the opposition have demonstrated their unwillingness to play the game of democracy in a fair manner: the first through the manipulation of the democratic rules (Bouquet Reference Bouquet2007) and the second through the use of violence in rejecting the legitimacy of the incumbent (Vidal Reference Vidal2003).

While all this is well established, less remarked is the fact that the manipulation of democracy in Côte d'Ivoire has taken place to a large extent on the legal and constitutional terrain, through the manipulations of the key rules of eligibility and voting rights (Bouquet Reference Bouquet2011; Bovcon Reference Bovcon2013). Differently from Houphouët-Boigny, Bédié, Gueï and Gbagbo were forced to give a cloak of democratic legitimacy to their rule and saw in the appeal to the law a possible way out. The resort to the manipulation of the law and especially of the Constitution – the supreme law – allowed those who controlled the state to claim allegiance to the formal rules of democracy, while they were violating its substance.

Bédié was the first to sponsor an amendment of the electoral code in order to prevent his rival Alassane Ouattara from running in the elections, introducing the obligation to be born ‘from an Ivorian mother and father’ for the presidential candidates. The usage of the law to distort the democratic game reached its peak in 2000 under the military transition guided by Gueï, when a new Constitution was submitted to referendum (Bouquet Reference Bouquet2011). Its article 35 dealt with eligibility to the presidency, and would create a long-time debate in Ivorian politics. Often accused to be ‘ivoiritaire’ (‘Ivoritarian’), the article was formulated in terms so vague and broad that it could be invoked to justify the exclusion of almost any candidate.Footnote ⁶ As a matter of fact, it served to prevent twelve candidates out of seventeen from taking part in the 2000 elections, including those issued from two of the three Ivorian major political parties, the former single party Parti Démocratique de Côte d'Ivoire (PDCI) and the Rassemblement des Républicains (RDR) headed by Ouattara.Footnote ⁷ Although Gbagbo eventually won, the exclusion of several major candidates and the turmoil that accompanied his election were going to weigh heavily on his legitimacy as new Ivorian president.

While these debates over the eligibility to the presidency went on, another debate was opened by the FPI about the necessity of ‘cleaning’ the electoral lists from the alleged presence of foreigners and provided the rationale for the launch of a controversial process of identification of the population after Gbagbo's election (Banégas Reference Banégas2006a; Marshall-Fratani Reference Marshall-Fratani2006). In this context, the FPI relied on the argument of legal-bureaucratic rationalisation to justify its stance. FPI militants claimed to be advocating the respect of the law in a domain – that of immigration – where since Houphouët-Boigny illegality and informalisation had allegedly prevailed. They explicitly denied that immigration could be seen as a political, rather than legal-administrative, question (Campbell Reference Campbell2003: 37). Richard Banégas argues that FPI ideologues propounded a vision of a national revolution that involved building a new state modelled on the Weberian ideal (Banégas Reference Banégas2006a). However the FPI's modernism also covered ‘an exclusivist ideology of citizenship, founded on the principles of autochthony and adherence to a micro-territory’ (Banégas Reference Banégas2006a: 544). By redefining the access to citizenship and thus to the further benefits of legal power, the FPI could appropriate the legal command emanating from the state. In terms of electoral rules, what was at stake this time was the possible exclusion of electors suspected of being foreigners, rather than candidates, from the electoral consultations (Bouquet Reference Bouquet2007). In the end, rather than encouraging the regeneration of the Ivorian state, the FPI's policies reinforced the cleavages that eventually led to the 2002 civil war and to nine years of de facto territorial division between the North and the South.

The outbreak of the FN insurgency marked the beginning of a new phase in the history of Ivorian post-Houphouët-Boigny turmoil. The rebellion began on the night of 19 September 2002 as a group of military officers of Northern ethnicity tried to overthrow the regime of Laurent Gbagbo. This group had already played a role in a coup that had brought General Gueï to power, but had later broken with him. Most of its members lived in exile in Burkina Faso before participating in the insurgency. Although the coup was ultimately unsuccessful, it was well prepared, having benefited from complicities in Côte d'Ivoire's neighbouring countries, while the alleged connection of the FN with the Ivorian opposition remains a controversial matter.Footnote ⁸ With the occupation by the putschists of the Centre-Northern half of the country, including Bouaké, the second biggest city of the country, and Korhogo, the main urban centre of the North, the coup effectively became a full-scale insurgency. The rebels were eventually stopped in their offensive towards the South by the interposition of the French military. The conflict was frozen and the country cut in half.

Under the leadership of young former student leader Guillaume Soro, who would prove a skilled politician, the rebels organised politically. In their discourse, they claimed to be fighting against ivoirité and the Gbagbo regime's xenophobia (Gadou Reference Gadou2009; Fofana Reference Fofana2011). In their own defence, the members of the Gbagbo regime put forward an opposite interpretation of the crisis and of the rebellion. While the FN insisted that their rebellion should be seen as the outcome of long-term grievances, Gbagbo's supporters were rather pointing to the proximate causes of the insurgency. They painted the rebellion as a ‘foreign terrorist attack’, sponsored by Alassane Ouattara and by ‘rogue states’ of the sub-region such as Burkina Faso.Footnote ⁹ The political and identity-based grievances of the FN were disqualified as pretexts for covering the insurgents' quest for power and wealth. However, the rebellion started soon to be portrayed also as illegal in its essence, as an attack against the ‘juridically sovereign’ state of Côte d'Ivoire.

During the first months of the crisis, the nationalist virulence of the Ivorian regime seemed moderated by the acknowledgement that the international community, particularly France and the Economic Community of West African States (ECOWAS), were to some extent responsive to its arguments and condemned the use of force on the part of the rebels (ECOWAS 2002; French Foreign Affairs Ministry 2.10.2002, 14.10.2002). Gradually, however, the decision of ECOWAS and France to push for a negotiated solution to the crisis, which implied the at-least partial recognition of the grievances of the rebels, prevailed. It was this new approach that informed the Linas-Marcoussis peace talks, held in the outskirts of Paris in January 2003 and sponsored and mediated by France (Du Bois de Gaudusson Reference Du Bois de Gaudusson2003; Smith Reference Smith2003; Mehler Reference Mehler2009).

As the Gbagbo regime felt increasingly abandoned and betrayed, particularly by the former colonial master, it increasingly deployed law and legalism against both internal enemies and the international community. Gbagbo's insistence on the law and the Constitution was already evident at the opening of the Linas-Marcoussis talks, in an interview that he gave to Le Monde reporter Stephen Smith. He argued that he would have ‘trampled over the Constitution’ had he accepted the nomination of a transitional government and insisted that the peace talks should not aim at organising a transition but at restoring the ‘legal order’ (Le Monde 16.1.2003). After the end of the negotiations, the regime clung to legality and to the Constitution for justifying its refusal of the agreement – notably as far as it concerned the establishment of a transitional government and the power-sharing arrangement with the rebels – and of the principle itself of a negotiated solution of the crisis. In this process, state sovereignty was identified with the Constitution and the legal framework of Côte d'Ivoire. The Constitution was sacralised, transformed into a symbol of independence of the country and opposed to international norms and decisions.

THE ROLE OF LEGALISM IN IVORIAN POLITICS SINCE LINAS MARCOUSSIS TO THE POST-ELECTION CRISIS

I now turn to an analysis of the use and evolution of legalist discourse by the Gbagbo regime during the Ivorian peace process, from the Linas-Marcoussis accords to the post-election crisis. I focus this analysis on three key episodes: the debate over the legal binding force of the Linas-Marcoussis agreement, the discussion over the amendment of article 35 of the Ivorian Constitution and again, briefly, the post-election crisis.