By Assane Mbaye (Alliance pour refonder la gouvernance en Afrique, December 2007)
The development of constitutionalism in Africa reveals an important paradox: under the impetus of both internal and external factors, much progress has been made in democracy and human rights protection, yet the ineffectiveness of constitutions and their unsuitability for the societies they are expected to regulate inspire a great deal of scepticism. Indeed, constitutions are sometimes themselves a source of conflict. This paradox should lead us to further reflect on and re-examine the problem of anchoring constitutions in African societies. Thus the initiative proposes to study and make proposals on values defended by constitutions, on how constitutions are drafted and adopted and on the conditions required to guarantee their efficiency and effectiveness.
As part of its 2006-2010 action programme, the Alliance for Rebuilding Governance in Africa has set up an initiative group for judicial pluralism. The starting point for this initiative is the realisation that a great chasm exists between the law as an element for regulating societies and African realities. In most countries, national judicial systems have sought to unify the modes of regulating societies in two ways: by unifying norms and by unifying their sources. Unifying norms, i.e., making them the same, has often consisted in imposing a dominant model taken largely from foreign judicial systems. In West Africa, the influence of colonial systems—particularly in French-speaking countries—led to norms inspired by a Judeo-Christian and Romano-Germanic heritage borrowed from the French coloniser. The unification of sources was also subject to colonial influences, and was but one of many elements in the construction of the fledgling Nation-States. Thus it was taken for granted that sources of law were necessarily subordinate to the monopoly of State institutions, and in particular to legislative and regulatory powers recognised by constitutions.
This two-edged attempt at unification has had no significant impact on African societies, where the rules of law are inaccessible—because of their language—and unsuited to the contexts in which they are applied. Social groups and communities refer to and seek recourse from the laws they recognise as their own. Thus law produced by State institutions is viewed as an ‘exterior’ type of law that often competes or conflicts with internal norms truly produced by social groups with no State law as an intermediary.
The result, in practice, is the existence of different systems of production and different norms that co-exist, overlap or conflict and do not have the same level of recognition or authority. In some cases these multiple systems and norms may even hinder economic activity and social harmony. Thus we have ended up with very complex judicial systems whose attitudes towards ‘internal’ forms of law vary widely according to country, domain and historical development.
The Alliance for Rebuilding Governance in Africa feels that judicial pluralism is an integral part of social diversity. Instead of ignoring this intangible reality, the Alliance works to make it an instrument in the process of rebuilding our systems of governance, which suffer from a lack of legitimacy and efficiency.
Its position at the summit of the hierarchy of norms makes the constitution the most important building block in a country’s political, economic and social organisation. A constitution is unsuitable when there is a wide gap between the principles and rules it sets out and the actual practices and ideas of the social group it is supposed to regulate. In Africa, the rise of constitutionalism has been accompanied by a great paradox. While constitutionalism has enabled undeniable progress in the area of democratic values and human rights, particularly since the beginning of the 1990’s, there is also “increasing scepticism and serious doubt about the effectiveness of this constitutionalism and its unsuitability for the societies it is expected to regulate. Worse, some feel that constitutionalism and its institutions are, in practice, a new and additional cause of tension and crises, with the latter interpreted as proof of the inadequacy of these fundamental texts to the context in which they are applied”. For proof one need only look at the current declines in democratic systems: disputed elections, clear infringement on rights and freedoms recognised by constitutions, constitutional ‘revisionism’, etc. The problem lies in the importation—albeit partial—of constitutional models. We are now seeing the great weaknesses of these models, which have led to increasingly criticised ‘endogenisation’ practices.
The most important weakness of these models concerns the values defended by constitutions. Without reopening debate on the universal character of some of these values, we simply need to reconsider the following point: to what extent can a constitution reflect the values engendered by the society it ‘constitutes’. Do societies in African countries identify with their current constitutions? Are these constitutions the translation of a meaningful social act, or are they simple judicial and technical tools used to organise a society—often associated with their initiators and adopted because the political balance of power was in their favour at that time? In fact, the real question is whether or not the ‘founding myths’ that are necessarily inherent to constitutions (because they constitute the instigating act) are shared by citizens despite the difficulty of questioning values and despite collective mental representations whose real consistency and permanence cannot be controlled.
The second weakness of current constitutional models involves the processes by which constitutions are drawn up and adopted. There is a remarkable difference between countries that, in the 1990’s, formally set up national conferences that included fairly large segments of society and those that preferred a referendum based on texts drafted by experts. The validity of both methods should be examined with regard to the fundamental question of the legitimacy of constitutions and the consequences that the drafting process may have on the recognition and implementation of the directions chosen.
Finally, a third weakness may be seen in the efficiency and effectiveness of African constitutions. Constitutional practices are as important as the wording of texts, particularly when they are the reason for social and political tensions. While the primordial objective of a constitution is to pacify the social and political space by subjecting it to accepted and respected norms, it must be admitted that the persistence of difficulties in regulating what have become cyclical conflicts on the African continent is a sign of crisis in the constitutional norms themselves. As a result these norms must be re-examined to determine how they are understood and applied by political, social and judicial actors.
These diverse observations should be used to redefine the means by which constitutions are anchored in African societies. Thus what is required is not a general study of African constitutionalism. Rather, we need to determine whether or not Africa can: 1) free itself from major leanings toward constitutional mimicry and 2) define its own models and construct them on the basis of the concrete realities in each country.
Consequently, the initiative proposes to draft concrete proposals on the means of creating constitutions, philosophical directions, technical content and the implementation of constitutions in Africa. It will also be the first building block in the creation of an inter-African research group on modes of governance in Africa.
1/ Carry out a study on all or at least most West African countries, including the historical diversity associated with colonisation. This study should cover French-, English-, and Portuguese-speaking countries. In particular, the study should examine a number of questions raised by the issue:
Does a typically African constitutionalism exist today, or has it existed at any time in the past?
What are the philosophical orientations of current constitutions? What values do they contain?
How and by whom were current constitutions created? How were they adopted, and in particular were they the result of an inclusive process?
How are constitutions actually applied in practice?
What are the major trends in the various countries in terms of constitutional revision, adjustment or manipulation?
What control mechanisms are in place, and in particular what role do judicial authorities and citizens play in verifying respect for constitutional texts?
What can be learned from a comparison of the respective development of constitutions in the various countries?
Is it possible to construct constitutions adapted to modern, African societies that are open to progress? If so, how?
On what major values could these constitutions be based?
How can we better ensure the acceptance of and respect for constitutional principles in Africa?
2/ Organise a regional workshop, the founding document for which will be the study indicated above. Constitutional experts and traditional researchers will take part in this workshop; they will constitute the first core of the research group. This core group will validate the results of the study and launch specific projects on constitutional issues such as elections, control of power, recognition of judicial pluralism, etc.
3/ Adopt a plan of action for the constitutions research group