With the 2008 Guinea-Bissau parliamentary election looming overhead now seems like an apt time to examine the foundation of law in Guinea-Bissau: The Constitution. Initially adopted in 1984, the Guinean Constitution contains a number of fairly concerning articles relating to the creation and control of government.
The Constitution of Guinea-Bissau describes the government as “the supreme executive and administrative organ of the Republic of Guinea-Bissau… [it] conducts the general politics of the country in accordance with its program, approved by the National Popular Assembly.” Article 97 of the Constitution also defines the Prime Minister and various secretaries as the “the government.” In most parliamentary systems the Prime Minister title would indicate an official chosen by the legislature from its own number, however the Guinea-Bissau system takes a different tact on this aspect: the President nominates the Prime Minister as well as the cabinet, as stated in Article 98:
(1) The Prime Minister is nominated by the President of the Republic in accordance with electoral results and after consulting with political parties represented in the National Popular Assembly.
(2) Ministers and secretaries of state are nominated by the President of the Republic, on the proposal of the Prime Minister.”
At first this appears unusual, but hardly sinister. However, as we have noted in previous posts the President, rather than the Prime Minister, also has the power to dissolve parliament. Ergo, the President has the capacity to both hire and fire the government as a whole; President Vieira demonstrated this power earlier this year when he shut down the government, dissolved parliament, and appointed a new Prime Minister and cabinet of his choosing to run a temporary government. He did so without consulting the parliament because he had temporarily done away with that particular constitutionally guaranteed aspect of government.
Further, Article 62 defines the President as “the Head of State, symbol of unity, guarantor of national independence and the Constitution and supreme commander of the Armed Forces,” a particularly unsettling fact given that President Vieira was formerly the country’s dictator who gained power by force, overthrowing the previous government. Article 120 also gives the President the final say over the selection of and power to swear in Justices of the Guinean Supreme Court.
Given the de facto dictatorship given to the President by the constitution, what is the point of having a free and fairly elected legislature? Is there a free and fairly elected legislature in Guinea-Bissau? President Vieira’s power over parliament, the judiciary system, and the armed forces shows a clear lack of checks and balances that is an impediment to the “pluralistic, free and just society” which the preamble of the Guinean constitution mandates.
Discussion of elections gives legitimacy to a government and in the case of Guinea-Bissau we must admit that the results of the election will only serve to make the government only appear more legitimate. The truth is that nearly all of the power of actual governance is concentrated in the hands of the president; Parliamentary elections in Guinea-Bissau do not signify that the voice of the people will be heard in policy making - How can they when the results are subject to the will of the President?
Constitution of Guinea Bissau
Guinea Bissau in turmoil after Parliament Dissolved (AFP)