In West Africa, democratization is advancing. In January 2016, The Gambia inaugurated a new president who had won a close election, and regional leaders intervened to make sure that the country’s long-time dictator stepped down peacefully. In Ghana, elections brought the opposition to power in December 2016, just as elections did in Nigeria in 2015. Other countries in the region are working, with varying degrees of success, to rebuild democratic systems after coups and civil wars.
Yet in two key Western African democracies—Senegal and Niger—ongoing legal battles raise serious questions about whether elected incumbents are using the courts to reshape the political playing field. In both, the most prominent opposition leader has been detained and tried. The incumbent and his defenders say that they are merely investigating and prosecuting wrongdoing, but opposition forces say that incumbents are abusing presidential power and undermining the courts’ independence. The evidence has so far been inaccessible to the public.
These developments threaten to undermine years of progress. Senegal has been a leader in African democratization since 2000, when it first peacefully transferred power from one political party to another. Senegal overcame a potential constitutional crisis in 2012, when a youth-led protest movement successfully propelled the opposition to victory over a president who was threatening to overstay his welcome.
Niger’s democratic reputation has been more recently developed. After zigzagging between civilian regimes and military coups from 1993 to 2011, the 2011 elections were widely praised. The country’s relative stability since 2011 has presented it as something of a success story: Even though Niger is desperately poor, it has largely avoided the kind of crises that have gripped its neighbors Nigeria, Mali, and Libya.
The ongoing court cases in Senegal and Niger will not, in and of themselves, destroy those democracies. But if it is true, as critics say, that incumbents are using the courts against opponents, then such intimidation will pave the way for further abuses. Abusing courts’ power will also sap voters’ faith in elected governments and electoral processes. Moreover, turning accusations of corruption into a weapon in partisan politics, rather than an impartial function of governance, would subvert the meaning of anti-corruption struggles. In other words, legal manipulation could already be setting in motion other destructive forces.
Niger’s legal battle is at a later stage than Senegal’s, and has a longer history. In 2014, then-Speaker of the National Assembly Hama Amadou was accused, along with approximately 20 others, of having trafficked stolen babies from neighboring Nigeria into Niger. Amadou denied the allegations, but took the threat of imprisonment seriously enough that he fled the country.
The political context made the accusations against Amadou questionable. In 2011, when Niger returned to democracy, Amadou, a veteran politician, ran for president. Placing third in the first round of the elections, he endorsed Mahamadou Issoufou, the eventual winner, in the second round. Issoufou rewarded him with the speakership in a coalition government. But in 2013, Issoufou reshuffled his government. Amadou, dissatisfied with his party’s share, rejoined the opposition. The accusations of baby trafficking came amid the political conflict.
In the 2016 presidential elections, Amadou became the main challenger to Issoufou. But when Amadou returned to Niger in November 2015 to launch his campaign, he was arrested over the trafficking charges. He spent the campaign in detention. He still placed second in the opening round, while Issoufou missed the 50% threshold necessary to prevent a runoff. Just before the second round, Amadou was evacuated to France for medical treatment. Issoufou was re-elected for a variety of reasons, including his relative popularity and the opposition’s decision to boycott the second round. But the astronomically high margin of his victory—92.5%—suggests that Amadou’s detention, which effectively prevented him from campaigning, contributed to the outcome.
The legal battle continued. On March 13 of this year, an appeals court convicted Amadou in the trafficking case and sentenced him to a year in prison. The defendant’s lawyers refused to participate in the hearing, which lasted only one day and which the lawyers claimed violated numerous legal principles, including Amadou’s immunity as a parliamentarian. Amadou is still in exile, so he may never serve the sentence. But the handling of the case suggests that Issoufou may be attempting to neutralize his opponent.
A long road lies between now and Niger’s 2021 elections. Issoufou is, constitutionally, a lame duck. If he tries to remove constitutional term limits, he would be treading a dangerous path: Niger’s last civilian president, Mamadou Tandja, removed the limit only to be overthrown by the military six months later. Still, if Issoufou is using the courts against Amadou, he is shaping the present and future political field to his advantage.
In Senegal, the legal battle is in an earlier stage. The country’s most prominent opposition politician is Khalifa Sall, mayor of the capital Dakar. Sall is already being discussed as a key candidate in the 2019 presidential elections, when incumbent President Macky Sall (no relation) will seek reelection. Khalifa Sall’s allies are also a threat to Macky Sall in the July 2017 legislative elections.
On March 7, Khalifa Sall was detained by the Dakar High Court on charges of embezzling nearly $3 million in public funds. The charges were raised by the state inspector general, and some in the Senegalese opposition see them as politically orchestrated, by Macky Sall. The mayor’s lawyers are fighting to get him released, and various forces, including one of the country’s influential Sufi brotherhoods, are rallying to his side. But the affair could dog Sall through the summer’s legislative elections and beyond, even shaping the outcome in 2019.
Senegal’s legal battle could play out differently than Niger’s. The trial seems to be not hamstringing Khalifa Sall but elevating his profile, “galvanizing the opposition” and solidifying his Socialist Party as an opposition force, rather than a presidential ally.
Additionally, Senegal’s image in the West is different than Niger’s. Senegal has a richer democratic legacy to uphold and is home to a much larger number of NGOs, expats, diplomats, and intellectuals. Niger, in contrast, is viewed primarily as a security partner: an “island of stability” in the Sahel, and the perfect place to host drone bases. For example, of Niger’s 2016 elections, the US government said only that “we are disappointed that differences among some of the parties concerning the conduct of the election were not resolved in advance.” If Senegalese authorities had imprisoned a major opposition candidate during a presidential election, the reaction might have been different because of Senegal’s higher and more multi-faceted profile in the West.
Senegal’s Macky Sall, in other words, may be less able than Issoufou to use the courts against opponents. Even in the case of Karim Wade, a former president’s son and former cabinet minister who was convicted of massive corruption, Macky Sall eventually pardoned him. This was not because he was convinced of Wade’s innocence (Wade is far more likely to be guilty than Khalifa Sall), but likely due to pressure from important political and religious constituencies.
Around the world, the neutrality and independence of courts is crucial to the protection and advancement of democracy. In Senegal and Niger, high-profile trials for opposition figures accused of corruption, whether financial or moral, call into question the relationship between incumbents, courts, and democracy. Without seeing the evidence presented to such courts, it is difficult to assess the likelihood that these opposition leaders committed crimes. If the charges are valid, incumbents will need to take special care—more care than they have taken so far—to avoid the appearance of manipulation. If the charges are not valid, democratic norms dictate that they should be dropped, and voters be allowed to make their decisions without interference.