Popular justice

The end of the Cold War saw all manner of African anti-government struggles cater to donor priorities by reframing themselves as demands for human rights, democracy and the rule of law. International languages only acquire popular salience, however, when they can be used to express ideas that already had some purchase in national political culture (Pommerolle Reference Pommerolle2006: 76–84; Larmer Reference Larmer2015: 83–5). I begin this section by explaining the relative power of mobilisation for constitutional rights in Burkina Faso in terms of its relationship to Sankarism and ‘popular justice'.

After taking power in 1983, the young military officer Thomas Sankara symbolically broke with France and sought to drastically extend the authority of one of Africa's weakest states. Upper Volta (a name modelled on French départements) was re-baptised Burkina Faso (a genuinely national name, with elements from three major language groups). The legal profession was one of many organised interests that Sankara's National Council for the Revolution (CNR) then identified as a local agent of neo-colonialism (e.g. Loada Reference Loada1999: 138). It created new courts beyond lawyers’ control: the People's Revolutionary Tribunals (TPRs). Their overriding objective was pedagogical: to ‘moralise public life’ and stigmatise corruption (Beucher Reference Beucher2010: 184; Harsch Reference Harsch2017: 58). Procedural safeguards were dispensed with. Cases were heard by seven judges, with only one professional magistrate. The other six positions were soon allocated to Committees of the Defence of the Revolution: openly elected mass membership organisations that operated throughout society (Harsch Reference Harsch2017: 56–7). Defendants had to prove their innocence in free-flowing oral debate before packed galleries. Sankara (Reference Sankara1984) inaugurated proceedings by attacking ‘formalists dazzled by procedures and protocols'. ‘Conformity with the bourgeois legality of the minority', he declared, ‘is pointless if not wholly consistent with the uncodified morality of the people'.

This form of ‘popular justice', emphasising exemplary punishment, nonetheless had to co-exist somehow with existing popular traditions emphasising reconciliation (generally Hagberg Reference Hagberg, Bierschenk, Blundo, Jaffré and Tidjani Alou2007). The CNR tacitly acknowledged this. At village level it created People's Conciliation Tribunals (TPCs), intended to replace ‘feudal’ customary law institutions. From August 1985 these TPCs were applying ‘moral pressure’ instead of punishment (Yonaba Reference Yonaba1997: 26). After the 2014 insurrection, as we shall see, a similar balance between justice and reconciliation would have to be struck, but this was greatly complicated by new pressures for (international) legality.

From ‘democratic freedoms’ to constitutional rights

For all of Sankara's charisma and personal integrity his revolution created inevitable discontents. Causes for dissatisfaction included draconian anti-union measures. Public service unions, in particular – some affiliated with the clandestine Voltaic Revolutionary Communist Party (PCRV) – were hard to ignore politically (Engels Reference Engels2019). As early as 1966 they had joined soldiers and students in the streets to oust first President Maurice Yaméogo. Sankara was soon impatient with their dogged defence of their particular interests. They became his ‘primary target’ (Loada Reference Loada1999: 138). By January 1985 unions were pleading publicly for ‘democratic freedoms’ (Martens Reference Martens1989: 32). (The language of individual rights was ideologically anathema under the CNR, and not yet a gateway to donor assistance (Harsch Reference Harsch2017: 63; Bayala Reference Bayala2018).)

Blaise Compaoré (allegedly) organised Sankara's assassination in October 1987. He then capitalised on these discontents. Claiming to merely ‘rectify’ the revolution, his government nonetheless swiftly eased even its more popular disciplines (Otayek Reference Otayek, O'Brien, Cruise, Dunn and Rathbone1989). This tentative ‘reconciliation with civil society’ facilitated the birth of the country's leading human rights organisation: The Burkinabè Movement for Human and People's Rights (MBDHP) (Martens Reference Martens1989: 269–70; Loada Reference Loada1999: 138). Founded in February 1989, with the Berlin Wall still intact, its name reflected its local origins – at the time ‘peoples’ rights’ designated an African alternative to liberal individualism (e.g. Bayala Reference Bayala2018: 32–5). Its leaders, meanwhile, who had all had difficulties with the CNR, nonetheless displayed varying attitudes towards ‘popular justice'.

The most important of these leaders were Titinga Frédéric Pacere and Halidou Ouédraogo – both would help draft the 1991 constitution (Ouattara Reference Ouattara2006: 54–5).Footnote ⁵ Pacere was Burkina Faso's first qualified advocate, an archetypical ‘formalist’ derided by Sankara. Inspired by his difficulties under the revolution he helped found Avocats Sans Frontières in 1992 (Pacere Reference Pacere2009: 29–36). Ouédraogo, by contrast, shared many of Sankara's radical objectives. President of the Court of Appeal in Ouagadougou, he led an association of ‘revolutionary judges’ that pre-dated the CNR and was even suspected of PCRV sympathies (Harsch Reference Harsch2017: 62–3; Kiendrebeogo Reference Kiendrebeogo2018: 130). Sankara asked him to help design the TPRs and to chair their first session. Ouédraogo's design reconciled ‘popular justice’ with elements of legal procedure. For instance, a legal way to reverse the presumption of innocence was found by observing mechanisms for investigating financial crimes (Foka Reference Foka2018a). Such lingering attachments to legality irritated the CNR. Ouédraogo himself was doubly suspect as Secretary-General of the outspoken Autonomous Union of Burkinabè Magistrates (SEMAB). In 1985 he was forced underground (Harsch Reference Harsch2017: 62–3). Although SEMAB celebrated the return of ‘democratic freedoms’ after 1987 it never denounced the ideology of ‘popular justice'. On the contrary it first criticised the TPRs as too lenient (Martens Reference Martens1989: 267–8; compare Kiendrebeogo Reference Kiendrebeogo2018: 127).

The unusual mobilising power of the new MBDHP, under Ouédraogo's leadership, would depend on close connections with SEMAB and the largest communist union federation, rather than on abstract appeals to human rights or Pacere's international links (cf. Engels Reference Engels2019: 115–16). In the 1990s it built a broad anti-regime coalition using the language of ‘rule of law and defence of constitutional rights', concepts that now ‘penetrated Burkinabè society’ (Harsch Reference Harsch2017: 179). One explanation for the success of this strategy was rapid disillusion with electoral politics. As soon as the Berlin Wall fell Compaoré had mastered the exploitation of incumbency for democratic divide-and-rule. Minority parties became fragmented and demoralised (Hilgers & Mazzocchetti Reference Hilgers and Mazzocchetti J2006: 10–12). The 1991 constitution briefly promised to be a more effective weapon. This strategy's high point followed the brutal assassination of investigative journalist Norbert Zongo in 1998 by Compaoré's own Regiment of Presidential Security (RSP). Unions and new civil organisations then sought to channel a wave of popular discontent into a campaign for constitutional rights against impunity: ‘enough is enough!’ as the slogan had it (Hagberg Reference Hagberg2002). Stay-away strikes paralysed ‘practically the entire country’ (Harsch Reference Harsch2017: 179). The MBDHP now had 40,000 members and Halidou Ouédraogo became spokesman for the body loosely coordinating the protests (Hagberg Reference Hagberg2002: 229; Harsch Reference Harsch2017: 179).

Compaoré responded using the language of reconciliation, centred on a Church-led ‘National Day of Forgiveness’ (see Hagberg Reference Hagberg, Bierschenk, Blundo, Jaffré and Tidjani Alou2007). He also created a Collège des Sages [the Wise] that in turn instituted a Commission on Political Reform. This recommended numerous constitutional revisions, which did indeed strengthen many democratic institutions (Santiso & Loada Reference Santiso and Loada2003). Term limits, however, soon emerged as the most significant shift. In 1997 Compaoré had become the first African leader since the end of the Cold War to remove these from the constitution. A revised Article 37 now restored them, making the President only ‘re-electable once', and for five not seven years (Loada Reference Loada2003: 161–3). This apparent success, however, only exposed the limits of the constitution as a vehicle for popular justice. In the run up to the 2005 election the governing majority declared that the revised Article did not apply retrospectively, thus paving the way for another Presidential run in 2010. The majority's interpretation was vigorously denounced by a demoralised opposition, but validated by judges on the Constitutional Council (see Winter Reference Winter2018: 156–8). Compaoré would ultimately win both polls with a score of 80%. The embrace of orthodox constitutionalism by left unions and opposition forces, and the downplaying of popular justice – in the interests of unity with some civil society organisations – had now limited their space for critique. As Hagberg (Reference Hagberg2002: 243) wrote of the protests following Zongo's assassination, ‘while political discourse is morally loaded and focuses on the behaviour of key political actors, structural causes of the crisis are rarely addressed. … In other words, the rule of law must be respected, but the law itself is not questioned.'

From constitutional rights to revolutionary legality

These disappointments with constitutional strategies help explain why existing accounts of the insurrection pay little attention to the law. Even before his victory in 2010 Compaoré's own Congress for Democracy and Progress (CDP) had supported amending the constitution to allow another run in 2015 (Moestrup Reference Moestrup, Baturo and Elgie2019: 371). But their efforts to do so were all defeated in the streets over the next four years. These efforts included a 2013 proposal to create a Senate, which could approve constitutional modification. This had to be suspended after demonstrations of up to 50,000 people in Place de le Nation (‘Ouagadougou's Tahrir Square'). A subsequent attempt to organise a popular referendum aroused even more determined opposition (Harsch Reference Harsch2017: 196–203). The wide range of constitutional rights demanded after Zongo's assassination was not, however, central to these protests. Civil society organisations certainly did continue to campaign on issues such as press freedoms. But it was justice questions, and in particular the protection of Article 37, that resonated most widely. This Article became a lightning rod for urban grievances (generally Hilgers & Loada Reference Hilgers and Loada2013: 190). In 2013 Almamy KJ, a reggae artist who now heads the national musicians’ union, released ‘Article 37':

As the sociologist Boureïma Ouédraogo (Reference Ouédraogo2014: 146) wrote on the eve of the insurrection: ‘many do not pose the question of the revision of Article 37 in terms of law, but in terms of ethics: “if Blaise Compaoré loves his country he won't touch Article 37”, you can hear people say in the streets of Ouagadougou'. Reworking the martyred memory of Thomas Sankara for a democratic age, these protestors thus forged an ‘imaginary of morality and legitimacy usable against a President who had nonetheless been legally (re)elected’ (Beucher Reference Beucher2018: 56). As late as 2014 some opposition politicians still argued that modifying Article 37 was constitutionally permissible, even if morally reprehensible given the promises made when it was created (e.g. Traoré Reference Traoré2014). The proposed amendment was widely denounced as a ‘constitutional coup'. ‘Ultimately', Moestrup (Reference Moestrup, Baturo and Elgie2019: 373) writes, ‘legitimacy prevailed over legal technicalities'. In some ways, indeed, this language of protest resembled Sankarist ‘popular justice’ as much as it did the constitutional activism of the intervening years. Hagberg et al. (Reference Hagberg, Kibora, Barry and Gnessi2018: 61) thus describe the insurrection as a victory for one of two opposed Burkinabè traditions: formalist ‘political legalism', on the one hand, ‘where the law is instrumentalised for political ends', and broader popular struggles for justice and against impunity on the other:

What all these impressive accounts lack, however, is a recognition of the degree to which ‘insurgent’ constitutionalists actually insisted upon legality. They deployed technical legal argument to serve a popular uprising, finding the necessary resources in international law. Understanding how they could do this involves accounting for their prominence in a new generation of social movements – one with loosened ties to unions and established NGOs.

The immediate aftermath of the Arab Spring in Burkina Faso had seen widespread demonstrations against impunity and the cost of living. These protests, however, had local roots, and followed from food and fuel prices riots in 2007–8 (Engels Reference Engels2015; Harsch Reference Harsch2017: 185; generally Branch & Mampilly Reference Branch and Mampilly2015). Perhaps more worryingly for the government, an army mutiny spread for the first time to the elite RSP (Dwyer Reference Dwyer2017). From a civil society perspective, however, these disparate movements had failed to unite sufficiently against the regime (Hilgers & Loada Reference Hilgers and Loada2013: 187–91). To channel their demands, NGO leaders borrowed organisational forms from other African responses to the Arab Spring. Perhaps most important was Y'en a Marre [We've Had Enough]: the Senegalese social movement founded in January 2011 to oppose President Wade's own efforts to amend the constitution for a third term. Le Balai Citoyen [The Citizens’ Broom], founded in August 2013, formally adopted Y'en a Marre's horizontal ‘acephalous’ structure, and also used hip-hop/reggae musicians for (social media) campaigns mobilising youth (de Heredia Reference de Heredia2015; Frère & Englebert Reference Frère and Englebert2015: 301–3). The core of its (sometimes unavowed) leadership comprised the rapper Smockey, the reggae singer Sams'K Le Jah, and Guy Hervé Kam, a judge who had initiated a parliamentary petition opposing the removal of term limits (Harsch Reference Harsch2017: 166–9; Saidou Reference Saidou2018: 42–3).

Other lawyers formed and led similar new organisations that mobilised against Compaoré's constitutional engineering (generally Saidou Reference Saidou2018: 43). The largest organisations campaigning against the Senate, for example, constituted themselves as the Citizens Resistance Front (CRF). Their spokesman was constitutional law professor Luc Marius Ibriga (see Lefaso.net 2014). Like Halidou Ouédraogo before him, Ibriga was someone who had sympathised with Sankara's revolution but nonetheless had personal reasons to regret the CNR's hostility towards legality. His family had spent 15 years seeking compensation for urban property expropriated by the regime (Foka Reference Foka2018b). The CRF's leaders also included the constitutionalist and scholar Augustin Loada.

The argument for revolutionary legality emerged when these constitutionalists began using their positions in these movements to diffuse an international legal argument originally developed by internationally connected NGOs (see CGD 2009: 7).Footnote ⁷ Previously, the most popular legal argument against amending Article 37 had emphasised Article 165, prohibiting any amendment ‘putting in question the republican nature and form of the state’ (see e.g. SYNAF 2014). Over the course of 2014, however, certain provisions of the African Charter on Democracy, Elections and Governance (2007) – which came into force in 2012 – gradually acquired prominence.Footnote ⁸ Although the African Union's Malabo Protocol now treated ‘unconstitutional changes of government’ as a ‘core’ international crime – equivalent to genocide and crimes against humanity – it had still never sanctioned an incumbent for a ‘constitutional coup’ (Wiebusch et al. Reference Wiebusch, Aniekwe, Oette and Vandeginste2019: 19–20). Now opposition lawyers sought to use the few anti-incumbent provisions in the Charter for exactly this purpose. Two points became central in public debate: Article 10's requirement for ‘national consensus’ on any modification, and (more importantly) Article 23's prohibition of ‘[a]ny amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’ (e.g. Bancé Reference Bancé2014; Yaméogo Reference Yaméogo2014). On 21 October 2014 it became known that in secret talks the parliamentary majority had finally obtained the numbers to amend the constitution directly without referendum. The French Foreign Ministry responded that this was incompatible with the African Charter (RFI 2014a). Le Balai Citoyen devoted a large chunk of its press conference on 27 October, on the eve of the insurrection, to a detailed discussion of Articles 10-2 and 23.5 of the Charter. They did so ‘forcefully’ underscoring their ‘constant efforts to abide by the law [demeurer légalistes] requiring in turn that the authorities respect the same republican values’ (Le Balai Citoyen 2014). International law had briefly taken centre stage.

On the streets, meanwhile, Le Balai were among those agitating for civil disobedience. A National Assembly vote on amendment was due for 30 October. A massive march was called for 28 October, with eventual estimates as high as a million participants. Civil disobedience began shading into revolution (for this paragraph Frère and Englebert Reference Frère and Englebert2015: 296–7; Hagberg et al. Reference Hagberg, Kibora, Barry and Gnessi2018: 21–4). MPs from the majority were holed-up near a side entrance to the Assembly. But protestors stormed the building on the morning before the vote. Compaoré promised to withdraw his bill, but it was too late. Numerous symbolic locations went up in flames. Protesters burned the national television station, the Assembly itself, and the houses of parliamentarians. Amidst this conflagration, the President resigned and escaped by road towards Ghana. On 31 October he was airlifted to Abidjan in a French helicopter.

Transfer of power

The first clash between legal rectitude and political reality took place whilst Compaoré was on his way out of the country. His sudden departure had left a power vacuum. Constitutionally speaking, power should have reverted to the President of the National Assembly, but he too had fled. Recent critics of the transition have argued that he could have been replaced by the Assembly's Vice-Presidents (even though most of them had voted for the constitutional amendment), or that a new President of the Assembly could have quickly been elected (Oulon Reference Oulon2018: Preface, 56–7; Lefaso.net 2019). But the streets would never have tolerated this. Meanwhile the head of the official opposition, – Zépherin Diabré – frustrated his supporters by refusing to contemplate taking power without constitutional authority (Ouédraogo & Ouédraogo Reference Ouédraogo and Ouédraogo2015: 7). And other parliamentarians were either unwilling to put themselves forward or lacked support (e.g. Zida Reference Zida2018: 129–31). On 31 October General Traoré, head of the regular army, took power. But civil society leaders thought him too close to Compaoré (e.g. Harsch Reference Harsch2017: 212). Their preferred candidate – temporarily, to avoid ‘a bloodbath' – was Yacouba Isaac Zida, second-in-command of the hated RSP. Some constitutionalists, however, were unwilling to trade law so easily for expediency. Both the army's usurpation of the insurrection, and the neglect of military hierarchy, proved internally controversial (cf. Oulon Reference Oulon2018). Zida's (Reference Zida2018: 127–8) own account is as follows:

Ibriga argued strongly that ‘it was not for civil society to bring the military to power', but was opposed by Guy Hervé Kam, who advocated Zida as a temporary measure (see the corroborating account in Ar. Ouédraogo 2014). General Traoré accepted this fait accompli after only one day. Zida took power distancing himself from the RSP, and identifying as a Sankarist (Frère & Englebert Reference Frère and Englebert2015: 298; cf. Chouli Reference Chouli2015: 331).

International designation

For some close to the public service unions this was simply ‘yet another military coup d'état’ (Hagberg et al. Reference Hagberg, Kibora, Barry and Gnessi2018: 25). But the insurrection's insistence on its (international) legality did in fact distinguish it from Burkina Faso's previous coups. Zida, for one thing, had initially contemplated a purely military-led transition, on the model of Niger 2010 (Zida Reference Zida2018: 135–6). But this triggered demonstrations and deadly clashes with police. The protesters’ position was supported by international agencies, and Zida abandoned his plan (Harsch Reference Harsch2017: 212). Constitutionalists then protested strongly on legal grounds against the international designation of the insurrection as an unconstitutional change of government. On 4 November, as Economic Community of West African States (ECOWAS) mediators discussed the question, youth outside forcibly prevented civil society actors from entering the room. They made an exception, however, for those such as Ibriga and Loada who had proved their activist credentials (Saidou Reference Saidou2018: 45–7; but cf. Hagberg Reference Hagberg2015: 117). In the end ECOWAS ignored calls to insist that power passed to the President of the National Assembly (e.g. Baye Reference Baye2014). And in strong contrast to its stern attitude towards the Malian protests and coup of 2020 – where legalistic justifications have been much less prominent – ECOWAS refused to apply sanctions (RFI 2014b).Footnote ¹⁰ For the first time the AU suspended its own sanctions for two weeks (Dersso Reference Dersso2014). By then Zida had yielded to internal pressure to restore the same constitution he had suspended: another unprecedented development (Ouédraogo & Ouédraogo Reference Ouédraogo and Ouédraogo2015: 17). Burkina Faso's constitutionalists had obtained the first tacit recognition in (African) international law that a popular uprising could be distinguished from an unconstitutional change of government.Footnote ¹¹ They had carved out space for revolutionary legality.

Transitional constitutionalism

The two weeks leading up to 16 November were devoted to drafting a Charter of the Transition. This document was the fruit of delicate compromise, intended to co-exist with rather than replace the (soon-to-be-restored) constitution. Its most immediate objective was to create a new succession mechanism for the Head of State. A new civilian President would be chosen by a 72-member committee made up of political, religious and military figures. The man eventually chosen was the military's nominee, retired diplomat Michel Kafando (cf. Chouli Reference Chouli2015: 327–8). Zida would become Prime Minister. These men would be answerable to a 90-member National Transitional Council (NTC) that allocated 30 seats to the former opposition, 10 seats to the ex-majority, and divided the remaining 50 between civil society and the security services (see Harsch Reference Harsch2017: 213). Civil society activists insisted that this body have legislative power (despite strong objections from ‘the international community') and be given time for root-and-branch reform (Moyenga & Somda 7.8.2019 Int). In the end they obtained a one year transition: the upper limit of what international agencies had then been generally willing to accept (Saidou Reference Saidou2017: 8; 2018: 46). Many of them publicly juggled democratic commitments with a Sankarist contempt for the political class (Harsch Reference Harsch2017: 213–14; Sy Reference Sy2017). Activists in the NTC defeated politicians’ demands that the transition do little more than prepare for elections (generally Saidou Reference Saidou2017).Footnote ¹²

Now, however, these hard political bargains had to be somehow squared with a constitution sanctified by the insurrection. Even constitutionalists who had helped draft the Charter described the result as ‘juridical disorder’ and ‘generalised illegality’ (Soma Reference Soma2015: 8; Ouédraogo & Ouédraogo Reference Ouédraogo and Ouédraogo2015: 26–7). Responsibility for organising this mess fell to the Constitutional Council. Strikingly, Zida had been persuaded not to dissolve this body, as the military authorities had in Niger. Despite having validated Compaoré's candidature in 2005, and (allegedly) having delivered a technical opinion in favour of the legality of modifying Article 37, the Council's quiescent judges became the insurrection's surprise winners (Ouédraogo & Ouédraogo Reference Ouédraogo and Ouédraogo2015: 24; Winter Reference Winter2018; compare Sultany Reference Sultany2017: 152–3). In its first hearings after the constitution was restored (on 16 November), the Council affirmed the legality of the new political order. It did so with (tendentious) reference to the decrees of early November, when the constitution which the Council was interpreting was not even in force. Once again insurgent constitutionalists criticised this sacrifice of legal values for political expediency. They accused the Council's judges of acting as the ‘armed wing’ of the new authorities (Ouédraogo & Ouédraogo Reference Ouédraogo and Ouédraogo2015: 25).

Transitional government

During the transition insurgent constitutionalists found themselves at the heart of the government. Of the four who had helped draft the Charter of the Transition, Ibriga became head of the state's principal anti-corruption body, Loada became Minister of Labour, Abdoulaye Soma (who had worked on the military's draft) became Zida's special advisor, and Séni Ouédraogo – then Director of the National School for Administration and Magistracy – would later become Minister for the Civil Service. Their administration legislated at speed, passing reforms including a ‘developmental’ revision of the Mining Code, and an Emergency Transition Socioeconomic Plan aimed at women's and youth unemployment (Saidou Reference Saidou2018: 47). Judicial appointments were insulated from political interference, and Article 37 finally rendered unamendable (Saliou Reference Saliou2018).

Perhaps inevitably, though, these reforms still struggled to satisfy economic demands. The transition thus focused on drawing symbolic, martyrological distinctions between it and the old criminal regime (Gabriel Reference Gabriel2017: 701–6).Footnote ¹³ It also re-opened an enquiry into Sankara's death, and eagerly complied with a judgement of the African Court on Human and People's Rights ordering Burkina Faso to investigate Norbert Zongo's murder (Brett & Gissel Reference Brett and Gissel2020: 110). At the same time it began publicly discussing plans to disband the notorious RSP, citing justice for Zongo's relatives. This provoked open threats from the Regiment's leaders (Banégas Reference Banégas2015: 149). A ‘willingness to satisfy the demands of the ‘insurgents'’ had led the transition to adopt other ‘populist policies with a doubtful juridical basis', including asset freezes, that were then struck down by the courts (Saidou Reference Saidou2017: 31). So it took particular care with legality when protecting itself from the return of the système Compaoré. In April 2015, with elections due in six months, the National Council for the Transition voted to amend the electoral code in order to create a new category of persons ineligible for election: namely all those ‘having supported anticonstitutional changes which are an infringement on the principles of democratic change of government, notably to the principle of limited presidential term limits and have led to an insurrection or to any other form of uprising'. This wording was of course the fruit of careful drafting by some of the transition's constitutionalists, and was taken directly from Articles 23–25 of the African Charter (Y. Ouédraogo Reference Ouédraogo2016: 198, 230; Witt Reference Witt2019: 115; Anonymous NTC member, 13.4.2016 Int.).Footnote ¹⁴

Compaoré's supporters now capitalised on this opportunity to accuse the transition of hypocrisy. They claimed the NTC were acting like ‘World War II Nazis'. At the ECOWAS level Ivorian President Ouattara started arguing that this ‘exclusion’ was illegal, whilst donor agencies (usually behind-the-scenes) pushed for ‘inclusive elections’ (Witt Reference Witt2019: 115–16; Brett & Gissel Reference Brett and Gissel2020: 111; Anonymous ex-majority parliamentarian 15.4.2020 Int.; Anonymous EU diplomat 20.4.2020 Int.). Within a month potentially excluded members of Compaoré's old presidential majority had challenged the new code at the ECOWAS Community Court of Justice (ECCJ), citing various international guarantees of civil and political rights.Footnote ¹⁵ Burkina Faso's legal team was headed by the Bar President and Guy Hervé Kam of Le Balai Citoyen. In court they did not merely raise procedural objections, as states usually do at the ECCJ (Brett & Gissel Reference Brett and Gissel2020: 84–114). Instead they justified the new electoral code by reference to an ‘'anti-constitutional’ … project’ pursued by late converts to rule of law values.Footnote ¹⁶

On 13 July 2015 the ECOWAS Court sensationally ordered Burkina Faso to remove ‘all obstacles’ to ‘free participation’ in elections. President Kafando almost immediately declared that Burkina Faso would comply as a ‘civilised nation … respectful … of its international engagements'. His government, however, only promised to ‘examine’ the judgement with the ‘greatest attention’ (Y. Ouédraogo Reference Ouédraogo2016: 217, n. 72). Amongst sympathetic constitutionalists Séni Ouédraogo argued that the ruling was potentially incompatible with the African Charter, and so interpretive clarification should be obtained from the African Court on Human and People's Rights (Paré Reference Paré2015). Luc Marius Ibriga and Abdoulaye Soma, however, disagreed, arguing that ‘exclusion’ should now be removed altogether (Zouré Reference Zouré2015; Moyenga & Somda 7.8.2019 Int.). Such legal technicalities were publicly debated with unusual intensity. The Constitutional Council became caught between (muted) international pressures to implement the ECCJ judgement and popular pressures to uphold electoral exclusion. In August the government adopted Ouédraogo's position, arguing that exclusion was actually legal according to the ECCJ's reasoning (if not its order).Footnote ¹⁷ The Council itself was more direct. Noting that the state ‘has not implemented’ the ECCJ decision, it barred those most involved with attempting to amend Article 37 from running in October.Footnote ¹⁸ Since February 2015 the Council's President had been Kassoum Kambou. A highly symbolic appointment by the transition, Kambou had once been a member of Sankara's TPRs, and soon thereafter a close associate of Halidou Ouédraogo's in the MBDHP.Footnote ¹⁹ He would later defend resistance to the ECCJ by arguing that legal technicalities must eventually give way to natural justice (Kambou 21.2.2016 Int.).

‘The dumbest coup in the world'Footnote ²⁰

On the eve of the election campaign, however, pressures to implement the ECCJ judgement suddenly evaporated. The trigger was an abortive coup, led by RSP soldiers close to ‘excluded’ politicians (see Banégas Reference Banégas2015: 150). The self-proclaimed Head of State was General Gilbert Diendéré: a linchpin of transnational counterinsurgency in the Sahel, ex-head of the RSP, Compaoré's closest associate, and (by his own admission) commander of those who had shot Sankara. Zida, Loada, Kafando and René Bagoro (an activist judge turned Housing Minister) were kidnapped and imprisoned. The putschists’ primary justification was of course legalistic: that constitutional order needed to be restored following the illegal exclusion of the ex-majority from the upcoming elections (CND 2015). The transition, in response, demanded that ECOWAS – which had effectively ignored Compaoré's ‘constitutional coup' – should ‘for once’ enforce international law and its prohibition on unconstitutional changes of government (see Kam in Sy Reference Sy2017: Ch. 2). It successfully persuaded the AU to announce harsh sanctions and even declare the putschists ‘terrorist elements’ (Witt Reference Witt2019: 117). But the putschists managed to negotiate a draft political agreement with ECOWAS’ mediators. This granted them amnesty and annulled the Constitutional Council's decision to ignore the ECCJ judgement (Saidou Reference Saidou2018: 49–50; Witt Reference Witt2019: 117–18).

ECOWAS’ compromises scandalised defenders of the transition and insurrection. Within a week the coup had been reversed thanks to a combination of (selective) international pressure, mobilisation by junior army officers, and popular resistance facilitated by trade unions (Harsch Reference Harsch2017: 218–20; Sy Reference Sy2017). International agencies stopped trying to enforce the ECCJ decision, and ‘excluded’ deputies lost their diplomatic support (Anonymous EU diplomat 20.4.2020 Int.). Elections were held successfully in November without those candidates invalidated by the Constitutional Council.

In summary, then, the insurgents’ claim to revolutionary legality had suffused a turbulent transition with legal contestation. Even the October 2015 putschists found themselves posing as defenders of the constitutional order. Their private conversations reflect the law's political premium. In an (in)famous secret recording Guillaume Soro – President of the Ivorian National Assembly – appears to advise one of Compaoré's most prominent ‘excluded’ supporters to press ahead with the putsch without expecting court cases to delay elections: ‘[t]he Transition was there for ten months to organise elections. But if ten months arrives and there is no election … they go beyond illegitimacy into illegality’ (Ouaga Flash Info 2019). As in North Africa after the Arab Spring, therefore, even those least committed to the rule of law nonetheless constantly calculated in its shadow (Brown & Waller Reference Brown and Waller2016).

The transition on trial

This contestation did not end with the transition. A military tribunal recently sentenced Diendéré to 20 years imprisonment: the culmination of a prolonged and much-publicised ‘trial of the putsch'. Diendéré and his co-accused used all manner of procedural manoeuvres to delay proceedings (see Bassolé Reference Bassolé2018). Yet generally speaking they did not treat them as sham justice, or stop arguing the case on its merits. They did, however, ferociously contest the transition and insurrection's claims to revolutionary legality. They highlighted Zida's unconstitutional accession to power ahead of the (absent) President of the National Assembly, the transition's refusal to implement the ECOWAS Court judgement, and the ‘secret deals’ and ‘compromises’ (compromissions) behind the negotiation of its Charter. Taken together these charges could be used to prove the legality of the 2015 putsch, since the authorities in place were themselves illegally constituted (Laoundiki Reference Laoundiki2019; Lefaso.net 2019).