The Landscape of Constitutionalism in Africa is Changing

What Does that Mean for Local Stability and International Law?
Analysis06.09.2019Rejoice Ngwenya
Police
Friedrich Naumann Foundation for Freedom sub-Saharan Africa

African Liberty Forum, Omo Room, Crowne Plaza Hotel, Nairobi, Kenya 

Session Title: Rule of Law & Human Rights 

Discussion Topic: The landscape of constitutionalism* in Africa is changing. What does that mean for local stability and international law? Rejoice Ngwenya, Thursday, August 22, 2019. 11.30am-12.30pm. 

Contextualisation 

In my experience and reading as an African liberal activist, I look at this task from the context that proclamations on the supremacy of the constitution are the beginnings of the journey towards but not necessarily the practice of constitutionalism. There is a cunning and deliberate effort by the African ruling elite to perpetuate the myth of a misguided notion that ‘constitutionalism’ is synonymous with ‘constitution’. Rather, legitimacy and practice of the constitution becomes the foundation of constitutionalism. Moreover, producing a constitution, which even when legitimised by popular participation - but whose letter and spirit are not applied - is devoid of constitutionalism. 

Background 

In the past forty years or so, our continent has experienced an enthusiastic era of revisionism, under the guise of ‘new and improved’ constitutions. Although at face value, it appears to be an era of democratisation; the same period has been marked with contempt of and decline in constitutionalism. This is because of the malady of non-enforceability, non-compliance being anathema to constitutionalism. Constitutionalism is not about ‘new and improved’ constitutions. It encompasses all the political rules and obligations that bind both rulers and the electorate – what some writers refer to as ‘the letter and spirit of the constitution.’ 

Despite these ‘constitutional winds of change’, nothing much has changed in Africa by way of conflicts (Libya, Cameroon, Central Africa Republic, Somalia) and disputed election results (Zimbabwe, Zambia, Madagascar). My take is that constitutionalism brings stability only where it has an inherent ‘Ubuntu DNA’ in application of constitutional values. The importance of a constitution is about an entity that defines ‘structure’ (institutions) and relationships (rights) rather than a good sounding piece of writing. Good local laws with international acceptability are grounded on constitutions that are almost impossible to amend especially on the whim of a power hungry incumbent sitting on a comfortable parliamentary majority. 

Thus this ‘evolution’ seems to have brought very little or no change in Africa given the trend of incumbent presidents’ obsession with ‘constitutional amputation’ in order to perpetuate hegemony / stay in office (Rwanda, CAR, DRC, Cameroon a case in point). As in my country Zimbabwe, cumulative cases of disputed electoral results expose the weakness of constitutional clauses on institutions that support democracy. Besides, despite the presence on a ‘made in heaven’ constitution, Zimbabwe’s ‘militarisation’ of state institutions sets a bad precedent on application and practice of African constitutions. 

As a corollary to that, constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment. In liberal political discourse, constitutionalism includes a process for, as L Oliver states, ‘developing, pg. 2 COMALISO on Constitutitonalism and Rule of Law presenting, adopting and utilising a political compact that defines not only the power relations between political communities and constituencies, but also the rights, duties and obligations of citizens in any society’. CM Fombad adds that constitutionalism is the idea that a government should not only be sufficiently limited in a way that protects its citizens from arbitrary rule but that operates efficiently and within its constitutional limitations. Sadly, my contemporary Africa has migrated from these basic norms in violation of 

Implications on local stability 

The reason I insist on the fallacy of constitutionalism in Africa is the abuse, deliberate misinterpretation and manipulation of constitutions resulting in political conflicts and electoral disputes. Somehow the ‘goodness’ of our constitutions does not permeate to political correctness. Africans have a hangover with the one-party mentality narrative thus ruling elites use of constitutions to control people rather than submit themselves to supremacy of the law over man as a check and balance. In fusing rather than separating powers, incumbent African rulers entrench political hegemony. To me, this completely African thing of an all-powerful executive presidency becomes problematic. My context of constitutional realism is that documents do no bring democracy, but attitudes and good political intentions that create stability born of constitutionalism. Some writers opt for popular education and shared beliefs in rules rather than power as a means to resolve conflicts. With this comes the ‘need for strong, independent and impartial prosecutorial authorities for the effective maintenance of the rule of law and human rights standards. A Amissah in ‘Constitutionalism and law in Africa’ in D Rones (ed) Democracy and pluralism in Africa (1986) “criticises lawyers for their tendency to discuss constitutionalism without referring to economic and social conditions in the countries concerned, which leads to a poor assessment of the causes of success or failure of regimes”. 

As already alluded to above, legitimacy and validity of a constitution has a lot to do with constitution-making processes. In Ethiopia, ‘the exclusion or withdrawal of the major opposition political parties not only undermined the legitimacy of the constitution drafting process and therefore the final Constitution, it also created security nightmares to the people and government’. The malady of presidentialism because of party state conflation gives incumbent presidents undesirable entitlement and head start in these processes. One very important element of constitutionalism is the need for the guarantee of fundamental human rights and freedoms – rather, right and freedom to participate. This exclusion of the people in the constitution-making process offends the principle of constitutionalism. 

As another writer comments: “But the temporary Gambian crisis also points to a deeper governance problem in Africa: leadership attitudes towards “governance”. Many African leaders have yet to appreciate that constitutional rules matter. And while military coups are increasingly “out of fashion”, people on the continent need to pay attention to the “softer” methods used to entrench the “president-for-life syndrome” which threaten the continent’s democratic gains.” 

Militarism and militarisation 

Africa has become a breeding ground of defective, militarised democracies. The concept of separation of powers has no place in military administrations. Consequences of de facto or de jure military rule on constitutionalism are well documented: 

• The Constitution is abrogated. The benefits of limitations imposed by the constitution are therefore lost. 

• The rule of law gives way to arbitrary rule 

• The independence of the Judiciary is compromised; judges could be removed from office without following accepted standards. 

• Fundamental human rights are no longer guaranteed 

• The media becomes subjected to undemocratic controls 

• The rights of citizens to freely elect their representatives are lost under military regimes 

Mwiza Jo Nkhata aptly puts it: “As the Malawian experience in constitution making 

amply demonstrates, in spite of the continued relevance of constitutions, most African countries still struggle with entrenchment of constitutionalism”. Dejo Olowu adds: “The African scenario places beyond all polemics that there is a definite and inevitable nexus among the concepts of governance, constitutionalism, and democratisation, howsoever defined or contemplated.” Kenyan academic Sam Gutto opines how “At another level, the practice of constitutionalism also implies the degree to which constitutions and their implementation address the real social needs of society.” 

Effect on rural and urban areas 

I myself has vast experience in discussing matters constitution at urban and rural level. I was deeply involved in two of Zimbabwe’s constitutional making processes in 1999 and 2009. I concur entirely with the notion that ‘constitutionalism defines government/citizen; government/ institution relationships.’ Only to the extent that citizens are qualitatively included in the process. Africa’s economic crises manifest themselves more blatantly on rural citizens. Their dependence on government / ruling party benevolence in time of economic and social need pushes them to comply with whatever constitutional provisions are driven by the ruling elite. They therefore cannot associate rural development with constitutionalism since they perceive the ruling party as the supreme law. 

The tragedy of bad governance in Africa manifests itself in economic crises – particularly unemployment. What this means the huge rural-to-urban migration places the burden of unemployment on urbanites, thus they are more likely to rebel against perverted constitutions. African urbanites are usually a middle class with a higher propensity to agitate for its rights. They are more likely to rebel against an abusive government e.g. DRC riots against Kabila’s extended presidential term. 

Conclusion 

There seems to be a severe imbalance of power between those elected to govern and those governed. This shows us Africans still do not appreciate the importance of a constitution as a social contract with rules that should equally apply to everyone. *Definitions and contexts ‘borrowed’ from Charles Fombad, Christina Murray, Morris Kiwinda Mbondenyi, Tom Ojienda (Pretoria University Press) and other liberal insights from my Network Atlas and Network for a Free Society personal library.

Rejoice Ngwenya

Rejoice Ngwenya

Founder of Coalition for Market & Liberal Solutions, Zimbabwe