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DE RUEHNM #0477/01 1771119
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R 261119Z JUN 09 ZDK
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UNCLAS SECTION 01 OF 02 NIAMEY 000477 
 
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PARIS FOR AFRICA WATCHER 
 
SIPDIS 
 
E.O. 12958:  N/A 
TAGS: PGOV KDEM SOCI PREL NG
SUBJECT:  Niger President Requests Constitutional Court to Retract 
Its June 12 Ruling on Proposed Referendum 
 
Ref: a) Niamey 466, b) Niamey 448, c) Niamey 433 
 
NIAMEY 00000477  001.4 OF 002 
 
 
¶1. (U) Summary.  Government of Niger (GON) Spokesperson Ben Omar 
appeared on the June 24 Tele-Sahel evening news broadcast on behalf 
of GON President Mamadou Tandja to announce Tandja's request that 
the Constitutional Court retract its June 12 ruling that declared 
unconstitutional Tandja's proposed referendum for a new 
constitution.  Were the Court to retract its ruling of two weeks 
ago, that act would equate to declaring itself incompetent and, 
essentially would demand that the Court resign.  The request was 
delivered the day following GON Prime Minister (PM) Seini Oumarou's 
return to Niamey from the Economic Community of West African States 
(ECOWAS) Heads of State Summit in Abuja, where he had assured other 
Heads of State that the GON would respect the Nigerien Constitution. 
 End summary. 
 
Yet Another Maneuver 
-------------------- 
 
¶2. (U) During the course of the June 24 Tele-Sahel (state 
television) evening news broadcast, the news anchor informed the 
public that GON Spokesperson Ben Omar had notified the station that 
he would deliver a message on behalf of GON President Mamadou 
Tandja.  Once Omar appeared, he proceeded for some 20 minutes with a 
convoluted statement that included a couple dozen clauses from the 
Constitution and an equally long list of legal provisions to say 
essentially that, in the President's estimation, the Court had not 
followed the correct process to arrive at its ruling that found 
unconstitutional the President's proposed referendum for a new 
constitution.  Further, the communication stated that "the President 
is the guarantor of the respect of the Constitution" and that the 
Court "has no power to rule over a presidential decree summoning the 
electoral college for political elections or a referendum." 
 
Supporters for Tandja's Extension Attack the Court 
--------------------------------------------- ----- 
 
¶3. (U) Vitriolic comments against Niger's Constitutional Court and 
its June 12 ruling continue.  Tele-Sahel, now assigned by some the 
monicker "Tele-Tazartche," continues to air editorials from 
prominently known Nigeriens lauding the President's work and 
questioning the Court's competency.  (Note: "Tazartche" is Hausa 
language for "let it continue."  End note.)  Private television TV 
Dounia also has interviewed some leaders with opinions that the 
President is above the Court and therefore rulings should not be 
compelling on the President.  Government-prompted rallies and 
statements on public media have continued in various regions, 
criticizing the Court and calling for its resignation or 
dissolution. 
 
Evaluation of Legal Precedent for Court Retraction 
--------------------------------------------- ----- 
 
¶4. (U) In a Tele-Sahel interview, Djibrillou Mai Saley of the Paris 
Bar Association (and a Tandja extended family member) cited as 
precedent a 2003 review by the Court of three prior rulings, and 
stated that the President may request the Court to review its June 
12 finding against the proposed constitutional referendum.(Note: In 
December 2003, following a claim lodged by the President, the 
Constitutional Court rescinded three  rulings:  one issued September 
4, 2002 related to provisions of the Inter-African Code of Market 
Insurance (CIMA) (2002-14/CC); a second issued September 6, 2002 
related to contracting procedures in the Public Market Code 
(2002-15/CC); and a third issued September 6, 2002 on the state of 
emergency declared by the President on July 31 and August 5, 2002, 
regarding mutinies in the army (2002-16/CC).  The Court declared 
those three decisions "legally non-existent," ruling them "null and 
void" for lack of a required quorum of at least five judges.  End 
note.) 
 
¶5. (U) Article 115 of the Nigerien Constitution provides that 
"Constitutional Court rulings shall not be subject to appeal" and 
are legally binding on public authorities and all administrative, 
civil, military, and jurisdictional authorities.  However, it is 
possible to request the Court to interpret its ruling if it appears 
unclear to concerned parties. 
 
¶6. (U) Some analysts question the admissibility of the President's 
request on the emergency ruling and argue that the constitutional 
provisions put forward would suffice to justify the Court's decision 
on the proposed referendum.  They criticized the President's latest 
 
NIAMEY 00000477  002.4 OF 002 
 
 
maneuver as indicative of some interpretations that the President, 
as "supreme judge," is above the Court and, consequently, could take 
virtually any action... even violating the letter of the 
Constitution.  Viewing the role of the President as an omnipotent 
entity may result in weakening the Constitutional Court, as it may 
no longer be able to play its regulatory/arbitration function if it 
reinforces the head of the executive beyond the letter and spirit of 
the constitution. 
 
¶7. (U) In 2002, as a result of disagreements between the Court and 
the Executive due to the latter's attempt to influence or ignore the 
former's decisions, the president and vice president of the Court 
resigned (September 11, 2002).  They stated that they could no 
longer fulfill their duties in a context where the Executive wanted 
them to violate the constitution.  The government appointed a new 
Court president and vice president and pressed the Court to issue 
the December 2003 ruling that various universities and research 
institutions in the region continue to criticize as a laughable 
"judicial scandal."  (Note:  The president of the Court that issued 
the December 2003 ruling is currently on the committee that the 
President assigned the task to draft a new constitution.  End 
note.) 
 
Reactions to the Latest Maneuver 
-------------------------------- 
 
¶8. (U) President Tandja's request for the Court to overturn its own 
ruling occurred despite civil society and political parties' calls 
for him to abide by the Court's decision.  As a consequence, the 
Social Democratic Convention (CDS), the second largest party of 
Niger's ruling coalition, decided to quit the coalition and withdrew 
its eight ministers from the President's Cabinet.  The CDS has 
formed an opposition coalition with other political parties and 
civil society groups. 
 
¶9.  (U) Soli Abdourahamane, a former minister of justice and former 
state prosecutor, described the President's arguments as 
"ridiculous."  He said, "in Nigerien law, there is no such thing as 
a legally non-existent court decision."  He also mentioned that the 
President could not base his claims on the 2003 Court ruling, 
because one of the Court's reasons for repealing its decision was 
the lack of a quorum of at least five judges provided by the court's 
by-laws.  It remains to be seen if and how the Court will respond to 
the President's request. 
 
Duplicity in the Announced Signing of Election Decree 
--------------------------------------------- -------- 
 
¶10. (U) Some observers see the announcement of the signing of the 
decree to conduct legislative elections anticipated for August 20 as 
an attempt by the President to divert civil society, political 
parties and international attention from his referendum project. 
The announcement of the signed decree occurred two days before the 
ECOWAS summit in Abuja probably in order to delay possible sanctions 
against Niger.  Moreover, only subsequent to PM Oumarou's return 
from Abuja did GON Spokesperson Omar announce the President's 
request to the Court for a retraction of its ruling on the proposed 
referendum for a new constitution. 
 
ALLEN