Bicameralism in Africa and the Arab world

February 2001

Contents

• I - VARYING STATUS
  • 1 Heterogeneous composition
    • very different methods of nomination or appointment
    • Numbers and term of office differ but are usually quite small
  • 2 Varied powers
    • Egalitarian and inegalitarian bicameralism
    • Substantial extra-legislative powers
• II - A VECTOR FOR DEVELOPING DEMOCRACY
  • 1. Territorial representation
  • 2. Representation of regional, cultural, socio-economic and religious diversity to ensure national unity
• III - A VECTOR OF POLITICAL STABILITY
  • 1. Seeking resolution of conflicts and conciliation
  • 2. Strengthening the authority of the law
• CONCLUSION

Bicameralism in Africa and the Arab world

In the middle of the twentieth century, bicameralism was widely decried as a method of parliamentary organisation. The second chamber was often presented as a group of notables with a somewhat conservative role. This was indeed the case in English speaking countries, where constitutional mimicry saw chambers modelled on those composed of aristocrats. It was the same in the French-speaking countries, where, after the Second World War, the French constituent assembly had distinct reservations about the idea of a second chamber as well as the National Assembly

Experience since then has amply proved that such misgivings were no longer justified in today's African and Arab countries. On the contrary, there has been a considerable revival of bicameralist parliaments in this zone in the last ten years, since, of the sixteen chambers effectively instituted, eleven were created for the first time in the nineteen-nineties. Sixteen States have a bicameral system in operation: South Africa, Algeria, Botswana, Burkina Faso, Egypt, Ethiopia, Gabon, Jordan, Lesotho, Liberia, Morocco, Mauritania, Namibia, Nigeria, Swaziland and Yemen. It is revealing to note that the Senate as an institution has been introduced as part of a process to democratise African and Arab nations.

It is true that this revival of bicameralism can be somewhat fragile, as witnessed in Zimbabwe or more recently Senegal. That being said, this state of affairs is more often due to hostile political conditions than to real doubt as to the value of bicameralism itself. Countries in transition may see bicameralism as an instrument allowing short term stability to be afforded, and democracy to be strengthened in the long term, by playing on the range of parameters characterising second chambers. Thus, five States provided for bicameralism in their Constitutions, but have not yet instituted it effectively : Cameroon, Lebanon, Madagascar, Mali, and Chad ; and six other States were envisaging setting up a second chamber : Burundi, the Republic of Central Africa, the Ivory Coast, Ghana, Oman and Qatar.

The reasons for setting up first legislative chambers in these countries are often identical and uncontested, for such institutions symbolise the emergence of representative democracy. The same is not true of second chambers, the heterogeneity of which often gives rise to considerable criticism, mostly unjustified.

It cannot be forgotten that there is a cost to these second chambers for the countries of Africa, the Indian Ocean and the Arab world, which are all developing countries. Still, it would be money well spent if such second chambers contributed to stability and respect for the State's identity.

1 - Heterogeneous composition - very different methods of nomination or appointment

Indirect suffrage, mostly within local authorities via locally elected representatives, is practised in most of the countries in this zone. South Africa and Gabon have different models for this type of election. South Africa has elections by the legislative assemblies of the provinces, a method which is also chosen by several other States such as Ethiopia. They are mostly countries with federal systems. Gabon, Mauritania and Senegal have chosen the system of elections by the representatives of the local authorities, boroughs and districts. The future Senate of Chad is also likely to adopt this.

Furthermore, some Senates are part elected and part nominated. It should, however, be noted that generally, not counting Burkina Faso, where 60 representatives out of 178 are elected, the proportion of elected senators is considerably higher than that of nominated ones. This is the case more especially in Algeria and Egypt, where 2/3 of the consultative "Al Choura" Assembly are elected. It is also likely to be the case of the Senate of Madagascar, where, reportedly, only 1/3 of the members will be nominated by the President of the Republic.

Finally, in some Senates, like the Senate of Jordan, all the senators are nominated.

- Numbers and term of office differ but are usually quite small

Although sweeping generalisations must be avoided, it is nevertheless possible to say that the bicameral model is that of small assemblies. Thus, the Mauritanian, Senegal, Gabon, South African, Ethiopian and Nigerian Senates have between 56 and 109 members. The Botswana Chamber of Chiefs has a mere 15 members, the Liberian Senate and the National Council of Namibia 26, the Senate of Swaziland 30, the Senate of Lesotho 33 and the Senate of Jordan 40 members. It should be noted that in the last example, the number of Senators may not exceed half the number of deputies. The exception to this rule is the Chamber of Councillors of Morocco with 270 members.

The legislative life of the various second chambers also varies a great deal. It is frequently between 4 and 6 years long. The exceptions are Morocco and Liberia, where they may last 9 years. Conversely, the Chamber of Representatives of Burkina Faso legislates for under 4 years. Finally there are 8 out of 15 hereditary seats in the Botswana Chamber of Chiefs and 22 out of 33 for the Senate of Lesotho.

Part renewal of these assemblies is frequently undertaken to ensure relative stability and avoid political upheavals. Egypt, Morocco and Mauritania have expressly provided this.

The impossibility to dissolve Senates is a safeguard often used to provide for stability and continuity of the State. Only some national constitutions provide for a right of dissolution, such as Jordan or Morocco.

The rank of President of the Senate, usually second or third in importance in the State, and above all the role he or she very often plays in the event of incapacity of the Head of State is lacking, also show this wish to endow Senates with the characteristics of institutional continuity. For instance, the President of the Senate becomes acting Head of State in Algeria, Gabon, Mauritania, Liberia and Senegal

2 - Varied powers

- Egalitarian and inegalitarian bicameralism

In Africa and the Arab world, the dominant model of legislative power, that is, the power to decide on the content of the law, differs from the egalitarian or quasi-egalitarian one found in most countries.

There are varying combinations of the main components of legislative power : the right to initiate law, the right to amend law, and the capacity to decide when bills are examined.

The right to introduce bills is granted to most of the second chambers, although sometimes certain conditions are attached, like in Jordan, and in other cases the right is limited for financial or budget laws like in most English-speaking countries. This is more particularly the case in Liberia and Lesotho. Only four upper chambers have no right to initiate law at all (Algeria, Ethiopia, Lesotho, and Namibia).

However, apart from Algeria, all the second chambers have the power to amend bills.

As regards the decisional power of Senates during examination of bills, it can be noted that in many cases, the agreement of the Senate is required for final passing of legislation. In this sense, bicameralism is perfectly egalitarian, as seen in Jordan or, subject to the foregoing restrictions, in Liberia and Lesotho.

It should, nevertheless, be emphasised that one variation of this egalitarian bicameralism does limit the equal powers to specific fields. Thus, in South Africa, the National Council of Provinces has the right to veto bills concerning those provinces, and this veto can only be overridden by a two-thirds majority in the National Assembly. Finally, the exception to this is Algeria, where the Council of the Nation must adopt the bills voted by the People's National Assembly, but can only do so by a majority of its members.

That being said, one of the particularities of this zone is the high number of consultative chambers. Thus, half of the six consultative chambers in the world are to be found in Africa or the Arab world (Botswana, Burkina Faso, and Egypt). In these countries, the upper chamber does not, properly speaking, participate in voting law, but gives advice on its content.

Conversely, the federal chambers of Ethiopia and Nigeria have considerable powers and play an important role mediating between the federal and states levels. The Nigerian Senate, based on the United States model, is a case in point since it is vested with a particularly important power of scrutiny : it votes impeachment, it hears members of the Government, it supervises the execution of the budget, it has the right of inquiry, and general policy declarations can be referred to it. This also appears to be the case in Morocco, where the Chamber of Councillors is vested with far-reaching legislative and supervisory powers (egalitarian bicameralism for examination of organic laws, the shuttle system, and the power to vote a motion of no confidence).

The chambers of Algeria, Gabon, Morocco, Mauritania, and Senegal are also vested with considerable supervisory powers such as written and oral questions, and commissions of enquiry. In this field, the most important powers are vested in the Senate of Jordan, which is empowered to file questions, petitions and even interpellations. On the other hand, this Senate can be dissolved by the Sovereign.

Nevertheless, the legislative power of some second chambers is limited. Thus, the right to introduce or amend bills is sometimes restricted. This is notably the case in Senegal and Gabon in the area of finance. Another restriction is the power of the first chambers to decide in the last resort. In Senegal and Gabon, the last word is applicable in all matters, subject to the constitutional field.

- Substantial extra-legislative powers

Apart from voting laws and ensuring the political responsibility of the government, Senates also have extra-legislative powers, which may be divided into three categories : consolidation of the Constitution, participation in the appointment of high State officials, and exercise of judicial powers.

- Senates are frequently designed to have a stabilising influence on institutions. It is therefore not surprising that much of the constituent power is vested in them. In fact, their role in this area is great, for two reasons: first the often participate in the process of constitutional revision. Their agreement is generally required for completion of a revision, and constitutions often require a qualified majority vote of the Senate for any amendment. Secondly, Senates can play a role in judicial review, either by their power to appoint some of the constitutional judges, or because they can call for such review. In Gabon, Mauritania and Morocco, some of the constitutional judges are thus appointed. Referral to the constitutional court is fairly common practice in Algeria, Jordan, Morocco and Mauritania.

- In addition to appointing constitutional judges, the Senates play a considerable role in nominating high officers of State. Here again, what is at stake is quite simply the stability of institutions via stability of their officers. Thus, in Liberia, the President appoints diplomats, the judges of the Supreme Court and those of lower courts, local administrators, and some officers in the army and police, with the agreement of the Senate. In Nigeria, the Auditor General of the Federation is appointed by the President on the recommendation of the Federal Commission for the Administration, subject to approval by the Senate.

- Frequently, Senates judge certain high officers of State jointly with the other chamber, or alone. Depending on the case, its role is to indict or to judge, or both. This particular duty usually applies in the case of the Head of State, or members of the Government. It appears to be an alternative method from that of executive responsibility to the legislative, especially in presidential regimes. It is the case of Nigeria, with its impeachment procedure. In Liberia, the Chamber of Representatives, which is the sole institution to have this power, can decide the indictment of political or judicial officers, whom the Senate has exclusive power to judge. In these cases, the Senate must hand down a two-thirds majority decision of all senators. Sentences may not exceed destitution and prohibition to undertake public office, but the accused my be judged by the judicial courts of law for the same facts.

1. - Territorial representation

Territorial representation is the first distinguishing feature between the upper and lower chambers. All or almost all the members of the chambers in Algeria, Gabon, Morocco, Mauritania and Namibia are elected indirectly by electoral colleges of great electors, in the framework of the local authorities. The creation and delimitation of de-centralised authorities is, moreover, a prerequisite that has sometimes delayed the creation of some chambers (such as Cameroon and Mali). The Senates of Burkina Faso and Liberia are elected according to a particular method of suffrage, but they also represent the local authorities.

This territorial representation also sometimes includes expatriate citizens (Mali, Mauritania).

However, local representation is not merely a poor relation, and is often created for specific purposes.

In South Africa, in accordance with the wishes of President Nelson Mandela, the National Council of Provinces represents the provinces, safeguards their interests and offers them the opportunity to express themselves at legislative level. This action guarantees national unity and national reconciliation, defined in the preamble to the 1996 Constitution as "Unity in diversity".

In Algeria, two-thirds of the members of the Council of the Nations are elected from the members of the district assemblies and popular assemblies of the "Wilayas" (administrative districts) without consideration for demographic spread, on the basis of two representatives per "Wilaya", in order to provide "a living contact between local bodies and the central power"^1(*).

In Chad, the technical constitutional committee which drew up the draft Constitution of March 1996, took into account a recommendation of the 1993 Sovereign National Conference, that a Senate should be created to represent de-centralised local authorities.

It is indispensable that this neighbourhood democracy be given an important role in Africa. Because, paradoxically enough, there is less risk of Balkanisation and excessive interference of the State than in other regions, regional interests must be taken into account by decentralisation or a reshuffle of territorial sub-entities if the State is to be strengthened. In a world of increasing globalisation, the return to basics is becoming a priority. As pointed out by French Senator Josselin de Rohan, « twenty-first century democracy will be neighbourhood democracy. »^2(*) Therefore the ideal body for regrouping these local particularities and interests seems to be the second chamber. That is, indeed, also the case if other social realities are taken into account.^3(*)

2. - Representation of regional, cultural, socio-economic and religious diversity to ensure national unity

The originality of African second chambers probably lies more in the way they take account of diverse social geography and the need to re-introduce equality via specific measures and adapted practices, in countries prey to social, racial and cultural imbalances.

Thus, importance is given to representation of socio-professional categories in the Egyptian consultative assembly, and the second chambers of Burkina Faso and Morocco.

More precisely in Africa, this representativeness of social categories entails taking account of the traditional communities, and there is a gradual shift over towards modern institutions, as shown in Botswana and Burkina Faso.

Furthermore, as noted by the UN Secretary General at the opening of the fourth conference on "New or re-established democracies", held on December 4 last in Cotonou, "one head is not enough to decide" and the realities in the African continent show that "traditionally, from village through to national level, decisions on the future of a community are always discussed in open debate, during which each point of view is carefully weighed, until a consensus emerges"^4(*).

It follows, then, that a second chamber adapted to local realities, which would guarantee every sort of local authority representation at national level in the legislature, would meet these aspirations better than any institutional arrangement, because it would offer authenticity and therefore stability.

1. - Seeking resolution of conflicts and conciliation

The creation of a second chamber can be a means of resolving conflicts for countries emerging from civil, ethnic or religious wars. One solution is to integrate traditional chiefs into modern institutional life. In South Africa, the National Council of Provinces has sought to reconcile races in the wake of apartheid. Lebanon envisages representation of every creed (the Ta'if Agreements provide for creation of a second chamber which would represent all "spiritual families"). Thus, Article 22 of the 1990 Lebanese Constitution provides that "with the advent of the first chamber of deputies elected on a national, non-community basis, a Senate will be created in which all spiritual families will be represented. The powers of the Senate will be limited to matters affecting the country's future". Similarly, the recent Arusha peace agreement provides for the creation of a Senate in Burundi.

Most Senate members in Africa are elected indirectly, unlike those in lower chambers (only the House of the Federation of Ethiopia and the Nigerian Senate, both federal chambers, have a percentage of members elected by direct suffrage). Their term of office is slightly longer than that of deputies. For these two reasons, upper chambers have a longer legislative life than the lower ones, thus fostering stability.

It may seem surprising that six chambers have a not inconsiderable number of nominated members (Algeria 1/3, Egypt 1/3, Lesotho (all), Madagascar 1/3, and Swaziland 2/3), although bicameralism is supposed to be a sign of democracy. It is true that if a head of State nominates people from among his or her own circle, this might undermine the role of the Parliament, but on the other hand it could reinforce his or her position where they are traditional chieftains. This phenomenon can be compared to the houses with aristocratic members which were the precursors of the current western chambers, and it should be remembered that transition towards democracy may, paradoxically, go through as stage of undemocratic nomination of members of parliament.

The real duty of Senates is to constitute "irreplaceable centres of institutional stability"^5(*) because, in Africa and the Arab world as well as everywhere else, dialogue is the normal method of resolving conflicts.

2. Strengthening the authority of the law

When the norm of general interest, governing society by imposing itself upon all in an established social order, is strengthened, the inevitable issue of power arises in the geographical zone, especially in Africa. Some researchers thus see the African idea of power as stemming from several fundamental principles, not least from "loyalty to a mission" which is today the duty of African second chambers in improving law. Thus, they contribute to the safeguard of democratic values by taking account of today's national customs.

More generally, in the Arab world, such as Egypt, the second chamber has been created to broaden the base of parliamentary representation, with a view to consolidating democratic principles and ideas, preventing legislation being monopolised by a single assembly. In Algeria, the second chamber has allowed legislation to be improved and enriched by the contribution and expertise of new people, and the legislative process has operated more smoothly.

Naturally, such improvement may be accompanied by slight difficulty in implementation.

Nevertheless, bicameralism has enriched the process of democratisation, spreading and intensifying the Rule of Law by improving legislative production. In this respect, Senates must make use of their particularities and specialised expertise to become the "sentinelles de la démocratie", or sentinels of democracy, as French Senator Jean Arthuis expressed it.

Some chambers are already moving towards this. The Botswana Chamber of Chiefs must be consulted for bills on revision of the Constitution, and for those on customary, family and civil law. Similarly, the approval of the Chamber of Representatives of Burkina Faso is now required for bills on citizenship, civil rights, the exercise of public freedoms, nationality, the status and capacity of persons, matrimonial status, successions and gifts. The House of the Federation of Ethiopia is specialised in issues arising from the right of self-determination of peoples and races, and the Moroccan Chamber of Councillors is the first to examine economic and social bills.

Second chambers must reflect upon their strong and weak points, and develop strategies to strengthen their roles. Direct importing of western models has proved unsuitable, because they cannot be transposed as they stand, and the peculiarities of African and Arab societies must be taken into account.

Among the motivations that have led to the creation of a second chamber, it would appear that its role as a factor of stabilisation and conciliation is preferred over the classic parliamentary role in legislation and scrutiny of executive acts.

However, bicameralism in Africa and the Arab world can be imagined as developing in two stages : the first is stabilisation, where a Senate forms a balanced addition to the powers already in position. The second, where the Senate asserts a legislative and supervisory role, comes later : it may emerge via legislative specialisation or even, to begin with, by advisory specialisation, before working towards emancipation.

There cannot be a single model of bicameral democracy, a kind of "off the peg" democracy. "Africans will learn much about what democracy is from observing their own traditions", and "giving others the benefit of their knowledge"^6(*). If African and Arab societies avoid imitation, then they will arrive at a desirable social order.

¹ H.E. Mr. Bachir Boumaza, President of the Algerian Council of the Nation, at the Meeting of the Senates of the World, Paris, March 14th 2000.

² Senator Josselin de Rohan, « Quel rôle pour le Sénat au XXIème siècle ? » ("What role for 21st Century Senates?") in « Sénat actualités », n°27, Paris, December 2000.

³ Kofi Annan, «Savoir écouter les minorités » ("Knowing how to listen to minorities") in Le Figaro, 4 December 2000.

⁴ Kofi Annan, op. cit.

⁵ Professor Dominique Chagnollaud, "L'expertise non technocratique" (Non-technocratic expertise") in "Sénat actualités" n° 27, Paris, December 2000.

⁶Kofi Annan, op. cit.