Sunday, January 08, 2006

Constitutionalism in Africa

Constitutionalism in Africa: The Successes and Failures

By Sara Bruya (c) 2006

Note: This paper was written as the final exam for "Constitutional Politics in Africa" at Harvard Law School, Spring 2006 - Prof. Mary Dudziak

Before examining the factors affecting the success or failure of constitutionalism in sub-Saharan Africa, it is first important to address the complicated task of defining constitutions and constitutionalism. Though the idea of a constitution may at first seem to be a simple and direct concept, the purpose of and role played by constitutions is actually a highly contentious issue. While it is easy to define a constitution as a system of fundamental laws and principles that prescribes the nature, functions, and limits of a government,[1] examining the processes of how, why, when and by whom a constitution is conceived, drafted and authorized reveals that the actual role and function of a constitution within the workings of the nation-state can take multiple and often contradictory forms.

Two dominant theories seem to exist regarding the nature of constitutions. The first is derived from the idea that sovereignty belongs to the people, not to the state or to an elite privileged class within the society. Therefore, a constitution must reflect the primary objectives and paramount values of the people. The constitution document emerges as a result of the people’s sovereign right to determine the form of government by which they wish to be organized and as an embodiment of their goals and values. In this way, the state serves the people’s interests and not the reverse. In many cases, the writing of a constitution represents the desire to break away from the old order and establish a new way of being and operating, often in response to circumstances which caused the previous order to lose legitimacy.

The constitution-writing process under this model ideally supports an inclusive, participatory approach with the intention of developing a sense of empowerment, ownership and allegiance to the constitution among the populace. This model also promotes drafting a constitution in broad terms which can be interpreted by the courts according to present day realities, recognizing that the tenets put forward by the constitution must be able to grow and embrace new values and aspirations as the society develops through time. As Peter Mukidi Walubiri suggests, “there should be scope for further development and the recognition of human rights and freedoms beyond those that are codified in the constitution itself.” (86) And Thomas Jefferson insisted that “constitutions should be amended by each generation in order to ensure that the dead past would not constrain the living present.” (Sunstein, 190)

There is another theory, however, of the role and purpose of constitutions, exemplified by Zambia’s Court of Appeal dismissal of a petitioner’s argument by saying: “It is unthinkable to suggest that the government of a country elected to run an ordered society is not permitted to impose whatever constitutional restrictions on individual liberties it regards as necessary to enable it to govern to the best advantage for the benefit of society as a whole.” (Prempeh, 11) This attitude suggests a school of thought which prefers to see sovereignty as residing in the state for the purposes of creating and maintaining law and order in the society. As Okoth-Ogendo points out, in Africa, the need “to demonstrate the sovereignty of the state” in relation to the international community also becomes a primary function of a country’s constitution. (224)

The notion of a constitution as a constraint on Executive power is not always well-received in post-colonial Africa. According to Prempeh, leaders of sovereign states in Africa often expect to enjoy the same unrestrained powers exercised previously by colonial governments, providing “Africa’s postcolonial elites additional grounds to discredit the idea of constitutionalism as a neocolonial imposition designed to keep Africa in subservience.” (19)

From this point of view, a constitution can be viewed as a check on factionalism; in other words as a positive, centralizing force and according to James Madison, as a “precondition for democratic processes, rather than a check on them.” Madison was concerned that a constitution that was “subject to frequent amendment would promote factionalism and provide no firm basis for republican self-government.” (Sunstein, 190) It can be argued that, as in the example of federalism in Nigeria, such governmental attempts to prevent division can ultimately lead to other problems, such as increased centralization and disregard for human rights. As Prempeh points out, “Africa’s modern constitutions have generally failed to address or reform the structure of, and distribution of power within, the postcolonial state. Instead, current constitutions have preserved the centralizing tendencies—and other ‘original sins’—of the founding generation that have defined the structure and organization of power within the African state since the early 1960s.” (37) Prempeh continues:

“In short, the modern African constitution preserves most of the principal defects of the old order: a hegemonic executive; a highly centralized unitary state; and subordinate legislatures in which opposition parties have little influence.” (38)

Constitutionalism, per se, takes form according to the underlying assumptions held by each particular society or government, according to the models outlined above. Complicating matters is the fact that while many countries espouse the first model (perhaps for the purposes of acceptance and/or securing development assistance among the international community), they may be functioning in actuality according to the latter. Walter F. Murphy argues that while “both constitutionalism and democracy rest on respect for human worth and dignity, documents labeled ‘The Constitution’ need not.” (cited in Jackson & Tushnet, 196) At the very roots of constitutionalism are the essential dilemmas facing any nation; particularly, how to balance issues of power, sovereignty, participation and rights; to what ends and by whom? Arriving at mutually agreeable answers to these questions, and realizing them in practice, however, is a goal that may or may not be achievable. It may instead prove to be an interminable process.

According to Heinz Klug, “constitutionalism is commonly understood as a ‘commitment to limitations on ordinary political power’.” (18) But Walubiri might argue that constitutionalism is a lot more than that. He writes that, “constitutionalism is a process of actualizing the sovereignty of the people. It is about empowering the people to more fully participate in the nation’s body politic at all levels.” (84) In this way, constitutionalism serves a critical function in the broader aim of human development, through which, according to Walubiri, “choices are created by expanding human capabilities and functions—what people can and cannot do with their lives.” Placing this onus on constitutionalism, while having the aim of empowering the people, may in fact be an ideal that is very had to put into practice, given the realities of poverty, illiteracy, disease, etc. which affect the lives of the “sovereign people.” While, “to the average African, then, constitutionalism must mean, above all, bringing an end to the abuse of discretion and rampant impunity that characterizes the exercise of public power, both high and low, in much of Africa,” (Prempeh, 45) the people themselves may not have the wherewithal and sufficient organization to actually participate in this way.

Insofar as constitutionalism can be defined as participation in the ideals, aims, goals and governance of a nation-state, let us now turn to the significant factors affecting the success or failure of such participation, by looking at examples from Swaziland, Nigeria and Kenya. Three primary factors are at play in the actualization of constitutionalism in Africa. The first factor is the unique identity crisis facing the individual African person and African states in general. The second is the problematic nature of the relationship between African nations and the hegemonic international community. The third factor influencing constitutionalism is the role played by civil society in organizing and representing the rights and voice of the people.

One significant factor influencing the constitutional process in Africa that has not been directly addressed in our texts this semester is the phenomenon of ‘simultaneous identities’ that the vast majority of African peoples experience in the post-colonial environment. These identities are the result of extant tensions in societies and communities between tradition and modernity. As people emigrate from the rural areas into the big cities, many are “seduced by modernity as displayed in their outward behavior,” according to anthropologist René Devisch, “yet they continue to bear parental and ancestral law deep in their hearts.” Devisch goes on to explain that:

“For the immigrants to town, ancestral law and its concomitant belief system and ritual practices remain a constitutive part, within the familial context, of their affects, habitual predispositions, unspoken injunctions to sociability and solidarity, corporeal expression and movement, as well as of their mental structures, modes of perception, and value judgment. Many sense an inner division, or live a kind of split between, on the one hand, their propensities and feelings which they spontaneously express in the domestic domain and, on the other hand, their western-style behavior in the public domain.” [2]

This split consciousness—as it were, the ability (or necessity) to adopt a particular identity in the public space (city) and another in the domestic space (ancestral village)—seems to be a significant force of ambivalence when it comes to participation in the collective “good.” The social and moral requirements of each domain can often be contradictory, leading those who live in both worlds to feel that they have become “foreigners to their original culture, family group, and traditional mode of life, education and solidarity.” (Devisch, 602) This dilemma may create what anthropologists and African peoples themselves recognize as the remarkable capacity for pluralism in the African mind. Such pluralism, however, can lead to the fatalistic acceptance of all that happens as the only possible response to inherent and overwhelming contradiction. Accepting and striving for modern, western symbols of success, wealth and luxury while living in abject poverty creates in the African mind a general confusion that can preclude an interest in abstract forms of community participation such as constitutionalism.

Confusion also exists between traditional vs. modern, colonial vs. independent, and African vs. international forms of governance. This can be seen, for example, in the tension in SwazilandKingdom of Swaziland of the International Commission of Jurists[3], various threats to judicial independence, the rule of law and the administration of justice were in effect, as demonstrated by the refusal of the Swazi government to recognize two Court of Appeal judgments. As a result, the six Justices of Swaziland’s Court of Appeal resigned in protest. The ICJ also learned that the Swazi Attorney General had threatened three High Court Justices with immediate dismissal if they did not recuse themselves from a case in which the mother of an under-age girl, intended as the tenth wife of King Mswati III, accused the King of her daughter’s abduction. between the monarchy and the modern expectation of constitutionalism and judicial independence. According to a 2002 report by the fact-finding mission to the

As Prempeh notes, “In Africa’s postcolonial history, the experience of constitutions or judicial review existing side by side with authoritarianism is one that is shared by nearly every country.” (3) In the case of Swaziland, according to the ICJ report, the legal system is based on a dual system of law whereby Swazi traditional and Roman-Dutch law often come into conflict. “Historically, this dual legal system performed relatively well, however…the present rule of law crisis is rooted in a past whereby the Executive routinely threatens judicial independence where it conflicts with entrenched interests.”

Traditional and modern, authoritarian and democratic interests in tension are seen to be extant through these examples within African communities, and in individual African minds as well. These conflicts of interest generate serious and complex limiting factors in the success of constitutionalism both on personal and national levels.

Constitutionalism in Africa has never existed outside the framework of modern, western hegemony. As Jeffrey Herbst explains, African leaders at the time of independence from colonial powers made the decision “to retain the nation-state as the exclusive unit of organization and to retain the boundaries that the white colonizers had drawn.” (99) It could be argued that they had almost no possibility of recourse to an indigenous alternative, due to the international embrace of the nation-state model after WWII. “The UN and its related organizations created an extraordinarily powerful template that molded international society by recognizing only nation-states as legitimate actors in the international community,” Herbst writes. Membership in the General Assembly for example, “was not available to any other form of organization.” (100)

Not only was the form of governance adopted by independent African states carried over from colonial models and conformed to international expectations, but the same tendency can be seen in the structures and contents of the constitutions which have been drafted since independence. Klug points to the fact that “that the vast majority of the world’s constitutions reflect the appropriation of a heterogeneous range of constitutional principles from the ‘prevalent international political culture.’” (67) Constitutionalism becomes a way for nation-states to integrate themselves “into the international community and economy by conforming to the dominant international political culture of the moment. Constitutionalism, in this analysis, becomes…a passport to international acceptability.” (Klug, 48)

A good demonstration of the pressures of international norms on an African attempt at alternative governance can be seen in the example of the Lagos Plan of Action in Nigeria. The Lagos Plan was an effort, adopted by the heads of state of the OAU, to re-structure development efforts in Africa to be more self-reliant and self-sustaining. In the end, according to Claude Ake, “African leaders found that they were too dependent and too weak to have their way, and they started to retreat.” (26) “In their struggle to implement the Lagos plan, African leaders had learned the futility of trying to [determine and carry out a development agenda] without the cooperation of the West.” (27)

Another dimension of international influence upon African constitutionalism is in the creation and promotion of the development paradigm. Acknowledging their weakness in the face of international pressures, the African leaders of the Lagos Plan ultimately felt powerless to resist the West’s development strategy. Moreover, the assumption of the modern, Western development paradigm is that there is an inherent deficiency in African societies which requires their total transformation; or in Ake’s words, their “total self-alienation.” (16) He writes;

“What was supplied was a more specific form of a broader Western model of social transformation; namely, modernization theory… [that] used an evolutionary schema that regarded the ideal characteristics of the West as the end of social evolution. This means that, reduced to essentials, the development of the backwards parts of the world was also implicitly a matter of becoming Western.” (10)

Thus the paradigms and expectations of the international community severely constrain the ability of forward-thinking African leaders to pursue viable traditional or revolutionary alternatives. Though the international community lays claims to the very conception and creation of the constitutional model, it ultimately creates major obstacles for the realization of authentic African constitutionalism through the imposition of itself on non-Western cultures.

Willy Mutunga suggests that civil society organizations should become, as it were, a fourth branch of government. This idea results from the fact that the state, no matter how democratic it may be, can never be the sole guardian of the public interest, and “because the three arms of government have consistently usurped the people’s powers as evidenced by presidential authoritarianism, legislative chicanery and judicial incompetence.” (132)

Civil society is comprised of professional organizations, trade unions, the media, schools, religious organizations, cooperative societies, NGOs, community-based groups, and the general public which is not formally organized. All of these groups could play an active role in promoting and participating in constitutionalism at the grass-roots level. Various sectors of civil society can also potentially be nurseries for alternative political leadership. When African nations now engage in the constitution-writing process, most follow (or are at least strongly encouraged to consider) models such as South Africa in promoting a participatory approach—best organized in the form of an independent commission mandated to frame the important issues and questions and to organize and manage public participation throughout the process. The direct involvement of the public gives citizens a stake in the ratification and implementation of the final draft, and in creating checks, balances and civil society institutions that will provide a framework for the new constitution to become a living document, and for constitutionalism to become an integral part of the workings of the government and the society.

The “Banana” and “Orange” campaigns in Kenya are a good example of this kind of constitutionalism in action. Although sometimes resulting in violence, the deep emotional and political involvement of the people in the constitutional amendment process is a significant and positive demonstration of the success of constitutionalism at the community level. The Kenyathe reform movement has been directed at enabling the people to regain their authority by ensuring that power is exercised by them directly or through their democratically elected representatives...The proposed Constitution is illegitimate because the people of Kenya did not participate fully in its drafting…and it does not faithfully reflect the wishes of the people of Kenya.” [4] In the opposing “Banana” camp, voters “view the draft constitution as favourable to women,” and reject claims of corruption by the Orange contingent. example shows that although participation may come with the price of conflict, citizens are fully engaging in what they see as their right to participation in the constitutional process. According to a statement by the Orange “NO” Campaign, “

This public debate among Kenyan citizens can be a model for other societies to follow and represents one of the successes of constitutionalism in the African context.

Many other factors play a significant role in the success or failure of constitutionalism. As Klug elucidates, there are many different aspects of the ‘problem’ of power—its allocation, application and restriction—within the nation-state. (25) Constitutional components such as federalism, the rule of law, rights and judicial review would all have been appropriate themes in this discussion of the ways in which societies create, commit and adhere to constitutionalism as a “theory of organized power.” (Okoth-Ogendo, 224) However, the three factors outlined herein remain, to my mind, the most important elements in the process of achieving public consciousness of and participation in constitutional politics in Africa.

[1] Definition retrieved May 4, 2006 from

[2] Devisch, René. “Frenzy, Violence and Ethical Renewal in Kinshasa.” Public Culture; Vol. 7, No. 3. Spring, 1995 p. 594.

[3] Fact Finding Mission to the Kingdom of Swaziland, International Commission of Jurists, June 2003, available at

[4] Retrieved on May 4, 2006 from