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Construct new constitutional alternatives in Africa

By Assane Mbaye (The Alliance for Rebuilding Governance in Africa, September 27, 2009)

The Alliance for Rebuilding Governance in Africa, in the framework of its ‘Governance, culture and judicial pluralism’ initiative group and as a follow-up to the January 2007 Bamako colloquium, ‘Between tradition and modernity, what governance project for Africa?’ is organising a regional workshop on constitutions in Africa, to be held from 28-30 May 2008. The purpose of this workshop is to encourage debate amongst actors from various socio-professional milieus and countries, formulate African proposals for dealing with the current crisis in constitutionalism and set up a research network on constitutions and institutions in Africa.

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Context and issue

The need to adapt law to the societies it is supposed to regulate is a universal and ongoing litany. Africa is no exception, and must deal with this challenge with as much—or more—determination as other regions of the world because, as history has shown, the continent is permeable to foreign influences: Arab-Muslim and then European. Most States, which were very fragile when they won their independence, strove to unify their judicial systems because law was considered something of a cornerstone in the building of stable Nation-States. Generally speaking, this commitment to unifying both the actual norms and their sources led to a kind of syncretism that capitalised on major developments in societies, but was above all strongly influenced by colonisers’ judicial systems. This holds true for all the branches of law, particularly private law, but it can also be applied to the rules of public law and institutional systems. However—and particularly with regard to the latter—imported foreign models have been subjected to local adaptations in the form of re-interpretations, instrumentalisation and practices that have led to each country having its own unique system. Yet the major characteristics are identical almost everywhere, and this is particularly true in West Africa.

African constitutions are a remarkable illustration of this phenomenon of importing and then ‘endogenising’ judicial and institutional systems. Like all transplants, constitutional transplants go through cycles that can be described schematically as follows: a learning or apprenticeship phase preceding reception of the ‘foreign object’, followed by progress purportedly indicating assimilation and adaptation and then, finally, reflux and/or stabilisation. The apprenticeship period extended from independence until the late 1980’s and was characterised by single parties, no rotation of power, underground opposition and restrictions on the freedom of individuals and groups. The early 1990’s were a linchpin in the development of constitutionalism in the sense that great strides were made in democracy, pluralism and the protection of rights and freedoms. The euphoria resulting from these democratic conquests has nonetheless subsided, leaving behind it a more troubling reality. Constitutional and institutional systems, regarded as ineffective and unsuitable for societies, have become unstable and now provoke violent crises and conflicts instead of regulating them.

This perplexing situation has led observers to two fairly contradictory ways of viewing the current constitutional crises. The first view, which might be called extremist, considers the current constitutional crises nothing more than a giant step backwards resulting from the ‘technical’ adaptation of democratic instruments emptied of all the values—particularly ethical values—that should be at the heart of and give meaning to any truly democratic system. The second, more mixed view, while not denying the existence of the current crises, sees in them proof that constitutional systems are in a state of great change, perhaps a period of maturation, that is a prelude to further changes announcing greater stability, as can already be observed in some national experiences.

Both views have their merits; in any case it is clear that “something is happening” and this ‘something’ cannot be considered progress in the right direction. Whether it represents a regression or a period of great change, the constitutional crisis is certainly with us, and it is taking the shape of revisionism that is often made to order and carried out ‘on the run’. It also manifests itself in countries’ incapacity to organise peaceful elections and changes in power, institutions incapable of providing a healthy balance and effective control of power and, last but certainly not least, diminished freedoms. Regression or profound change, the crisis in any case calls for renewed examination of constitutionalism and institutional systems in Africa. This examination should not focus on the effects of the crisis described above. It should, rather, be devoted to naming and characterising the crisis, describing its sources and exploring means for resolving it.

The crisis is first of all a crisis in the constitutional norm itself and, in particular, in the values it transmits and on which it is based. It asks the fundamental question of whether or not, above and beyond the beauty and universality of the principles they assert, African constitutions are legitimate. If constitutions are not effective, could it not be partly because the ‘natural’ and ‘spontaneous’ obligation to obey the norm and recognise its ‘transcendental’ superiority does not depend exclusively on the technical and procedural mechanisms set up to guarantee its application? There is certainly a fair amount of myth, of constitutional mystique and moral and ethical representation in the foundations of an act that institutes and constitutes a State. The search for these ‘founding myths’ is an essential—even existential—problem for States whose common foundations are losing ground to partisan, ethnic or tribal divisions or strife between brotherhoods or religions. The frequency and contingent character of constitutional revisions, as well as ‘social’ tolerance for such changes are a clear indication of the crisis in constitutional values.

The crisis is also a crisis in the constituting power, both original and derived. It is closely linked to the legitimacy crisis of the norm itself, but is expressed in the technical procedures used to design, adopt and revise constitutions. Involving peoples—the source, after all, of sovereignty—in designing and preserving the act that institutes their means of living together has become something of a charade. Power ratios between the powers that be have drained all meaning from the mechanisms used to revise constitutional norms. In fact, this crisis espouses the contours of the decay in representative democracy, which has been eaten away by the existence of partisan majorities and political, social and judicial practices that pay little attention to preserving the links between individuals and between communities.

Finally, this is a crisis of constitutional justice. Building a viable State based on the rule of law depends largely on the attitude, organisation and independence of a judicial power that guarantees the State’s recognition and continued existence. But in Africa judicial power is often subordinate to political power. The verification of compliance with constitutional norms, when it exists, more often than not serves purposes unrelated to safeguarding the rule of law.

Finally, the overall issue raised by this three-fold crisis, and that the workshop proposes to examine, is the social, political and judicial anchoring of constitutionalism in Africa. In fact, because the constitution is primarily a tool for regulating and pacifying public and private human relationships within a State and, subsidiarily, an element determining each State’s place in the world, it has close links with the rules and ways of governing people, assets and territories and is at the heart of the wider issue of governance. Yet the crisis in governance—object of much attention today on the part of social, political and intellectual actors—is also, deep down, a crisis in the acts that institute States and communities and define their relationships. Seen in this light, a constitution that actually and truly expresses a collective societal project can help resolve the governance crisis that the world as a whole and each State individually is now confronting. The scope and difficulty of the issues raised should not make us forget the progress that has been made and the decisive steps forward that have been taken in the past few decades. On the contrary, the positive experiences of an epoch or of a country, in whatever domain, should be used to help build a stable constitutional future.

II/ Urgent need for reflection that breaks with the past

In general, analysis of the conditions and means of making constitutionalism effective is urgently needed. This reflection should not only determine the contours of the crisis in constitutions and its historical, political, social or even cultural sources, but also and above all propose areas for exploration to free us from current impasses.

Secondly, and more precisely, the purpose of the reflection engaged in is to determine whether or not African constitutions built on so-called ‘universal’ values (democracy, human rights, the rule of law) can include their own ‘local’, social, cultural and psychological dimensions to reinforce their legitimacy, effectiveness and efficiency. Putting African constitutionalism in perspective with the requirements of the modern world and probable future changes should not, however, cause us to lose site of the positive—and negative—data associated with Africa’s ‘constitutional past’. This data can be used to uncover interesting paths to constructing models that, if they are not typically African, are at least particularly well-suited to African societies. The autonomy required to define such models is not restricted to political, social, moral or technical considerations; it also consists in constructing and stimulating an intellectual autonomy to free Africa from a penchant for mimicry and allow the continent to make its own contribution to solving problems that all the world’s countries face.

Thirdly, we need to:

identify and bring together the principal actors (intellectuals, scientists and university professors, political parties, traditional leaders, the judicial body, parliamentarians, etc.) and their diverse points of view on the definition and implementation of constitutional changes likely to produce the political, institutional and social transformations necessary for peace, security, social harmony and the development of Africa;

  • outline an effective African constitutionalism (constitutional values; design, adoption and revision of constitutions; role of the judicial power, means of renovating democracy, etc.) and define specific research themes for which innovative proposals could be developed in the short or medium term (elections, exercise and balance of power, counterweights to power, institutional integration of non-elected legitimacies, judicial pluralism, regional constitutional integration, etc.);

  • set up an inter-African research network for constitutional and institutional issues and make it an integral part of the inter-African research group on modes of governance in Africa.

III/ Main areas for reflection

A number of themes need to be chosen to enable the subsequent definition of future study projects and proposals for the inter-African research network for constitutions and institutions.

Theme 1: Constitutional expression of a collective societal project: fundamental questions and procedural aspects

The goal of this theme will be to reflect on how constitutions fit the values, representations and perceptions of African societies, as well as their current social, political and cultural practices. Constitutional ‘ready-to-wear’, patterned after foreign constitutions, is not a corset that must be worn forever and never adjusted with references to values specific to each society. Does Africa have the capacity to, and is it capable of, defining its own constitutional values? What might these values be? Among other elements, what importance should be given to the individual-citizen and the community, to rights and responsibilities? How can so-called ‘universal’ values be reinforced by calling on ethical and moral resources specific to African societies? How can constitutions be given meaning? Are they just contingent instruments at the service of government leaders, or are they in fact instituting acts whose essential principles have a certain intangibility or at least a certain permanence, and whose moral guarantee is in the hands of entire national collectivities? How can the ‘guardianship’ of a constitution be conferred on the collectivity as a whole rather than the head of State? What founding myths can be used as a foundation for a durable constitutional project that transcends individuals, epochs and political contingencies?

The feeling that a constitution is an intrusive body, foreign to the desired and recognised social and moral order, cannot be blamed exclusively on its lack of legitimacy, i.e., a legitimacy based only on copied, imported founding values. This feeling is also the result of the procedures and techniques used to design and adopt said constitution. The compromises arrived at by constitutive assemblies, national conferences and referendums have seldom stood the test of time. (Consider, for example, what has become of means for limiting the number of terms heads of State can remain in power.) There are already many techniques for drafting constitutions, but their results are unconvincing. So it may be useful to look at new ways of drafting constitutions.

The participation of ‘Everyman’ in defining and modifying the rules for living together provides a vital guarantee that the values behind these rules are suited to and will be defended by the people as a whole. In particular, should there not be phases for consulting collectivities upstream from any constitutive assemblies? Could this consultation not go beyond the simple gathering of opinions on a ‘ready made’ project and provide an opportunity to construct a project together and give true meaning to the notion of original constituent? What procedural innovations can be used to make constitutions truly belong to the societies that adopt them, in terms of both form and essence, i.e. orientations? What protections can be set up against possible excesses on the part of the derived constitutive power?

Theme 2: Constitutionalism crisis and crisis in democracy: elections and national representation

The crisis in the constitutional model (or models) is in fact one aspect of the crisis in the democratic model. Many consider direct democracy an unattainable goal. Whether they are right or wrong, one thing is certain: representative democracy, for its part, has become an illusion bled of its substance by purely formal, formalist and procedural contradictions. The challenge that African constitutions in general have been unable to meet is that of renovating the democratic regime and the institutions which provide its foundation. It is the core of constitutions—their content in terms of legal and institutional organisation—that must be examined. Democracy has not been condemned, it has been called in for questioning on two points: the election as the principle means of attaining power and the current forms of representation of the people. With regard to both these points, there is a clear link between constitutions and democracy in most African countries, not because constitutions are dictatorial, but because there are often crises or changes to the constitution at election time, and because constitutional revisions of doubtful legitimacy are facilitated by the failings of the representative system.

So what we need to examine is the paradox between election-based systems and the difficulty African States have in organising valid, peaceful elections—or in some cases even in organising any elections at all. How can pre-electoral compromises be worked out to guarantee the free and accepted expression of citizens’ wills and eliminate the need for post-electoral constitutional arrangements that last only one term or less? How can the environment be redefined to make it propitious to enlightened and free suffrage? The contours of this question naturally include issues such as illiteracy, clientelism, the role and place of money in public life, the State as a granter of privileges and social standing, the quality of potential political leaders and the role of political parties, etc.

Secondly, the crisis in representation and possible alternatives need to be examined from the dual angle of the nature of political regimes and the construction of institutional and non-institutional balances of power. Should parliaments, and in particular national assemblies, continue to be the domain of elected officials only or should they be opened up to other forms of representation of the society? Shouldn’t a representative democracy represent everyone, above and beyond the well-known prohibition on imperative mandates? What would be the electoral, social and political effects of a change in the means of national representation? How can we cut the umbilical cord that almost always makes legislative power dependent on executive power? How can the influence of the partisan majority be limited? How can efficient, non-institutional counterbalances to power be set up?

Theme 3: Constitutional justice between ‘interpretive reluctance’ and statutory and organic independence

As guarantor of the rule of law, the judicial power plays an essential role in controlling the legislative action of government leaders. With regard to constitutions, it is considered the guardian of fundamental norms. There has been undeniable progress in this area. All States have set up formal systems to control and define their competencies. But the actual independence of constitutional judges is still at the heart of African constitutionalism. The effectiveness of this constitutionalism depends greatly on how their mission is determined, the way they view it and how they accomplish it. The eminently political—but also social—consequences of their decisions may be related to the extreme caution they show in administering constitutional justice. This caution reinforces their status and the organic and institutional relationships they have with the other branches of power. Two fundamental problems should be noted. The first involves the competencies of the constitutional judge. Judges’ competencies are determined in very different ways in the various countries, and judges’ attitudes have varied widely over time. Yet there is an overall feeling that, here and there, interpretations are strictly limited to aspects of formal regularity, and sometimes border on a denial of justice. So the question is this: over and above texts, does progress in constitutional justice not depend to a certain degree on an ‘audacious’ interpretation of constitutional judges’ competencies and mission?

The second fundamental problem is that of a new architecture for relationships between the constitutional judge and political power. How can the link between them be completely destroyed? What institutional and statutory innovations could be used to reinforce the independence of constitutional justice?