WEST AFRICA REVIEW
ISSN: 1525-4488
Issue 6 (2004)
CONSTITUTIONALISM AND GOVERNANCE IN AFRICA
WEST AFRICA REVIEW ISSN: 1525-4488 Issue 6 (2004) CONSTITUTIONALISM AND GOVERNANCE IN AFRICA |
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John Mukum Mbaku
Colonialism was a mercantile pact, designed to enhance the ability of Europeans to subjugate Africans and exploit the latter’s enormous resources for the benefit of the former. As a consequence, the laws and institutions brought to the African colonies by the Europeans were not structured to enhance the ability of Africans to govern themselves or allocate their resources in an efficient and equitable manner. Colonial institutional arrangements were imposed on the Africans primarily to maximize the objectives of the Europeans in the colonies and the métropole.
Shortly after annexation of African territories, it was necessary to bring the enormous properties under the control of the Europeans so that exploitation could proceed in an orderly fashion. One of the most important problems confronting the colonialists was the management of ethnic diversity. In order to proceed with exploitation of colonial resources, it was necessary to bring all the ethnic groups within each colony together to form a single political, economic, and administrative unit. In addition to laws and institutions, the European colonizer of record also imposed on the African peoples, its culture, language, and political and economic systems. African practices were banned, destroyed, or minimized by the new laws and institutions. Each European colony in Africa came to represent a collection of indigenous communities that were forcefully brought together, with peaceful coexistence achieved through extensive use of coercion.
African colonies were expected to serve two important functions: (1) a source of raw materials for the industrialization of the metropolitan economies; and (2) as markets for the sale of excess output from European factories (Lugard, 1926). The Europeans forced Africans to produce the raw materials that were needed by the metropolitan economies and restructured the economies of the colonies to serve as markets for excess output from the métropole. Incentives in the colonies were restructured to encourage and sustain trade between each colony and the economy of its colonizer. Such trade practices, many of which were retained after independence, were to have a significantly negative impact on post-independence economic performance.
In the colonies in which they were large numbers of European settlers (or colonists), there usually was conflict over whose objectives were to be maximized in colonial policies—those of the settlers or those of the metropolitan inhabitants (who were represented by the resident colonial administration). Evidence of such conflict can be found in the long struggle between French Algerian planters and the government in Paris over the management of the colony. The colonists preferred public policies that allowed them to retain effective control of both the colonial government and economy, and as a result, were not particularly impressed by Paris’ efforts to dictate policies to them. Conflicts of a similar type arose in some of Britain’s colonies in Southern Africa, specifically those, which were dominated by Afrikaners (Europeans of Dutch-German-French ancestry). Afrikaners in the colonies that united in 1910 to become the Union of South Africa, fought often with the resident colonial power (i.e., Britain) over culture, language policies, the treatment of Africans, property rights (especially in land), and the general management of the colony. The conflict between the Afrikaners and the British administrators of the South African colonies became so intense that they resulted in several of what came to be known as “white man’s wars” (Frederickson, 1981). In Southern Rhodesia, now Zimbabwe, European planters and British colonial officers engaged in similar struggles over the administration of the colony and the treatment of the indigenous peoples. Eventually, the settlers seized control of the government of the colony and unilaterally declared independence, which was later nullified through a bloody war that brought Zimbabwe to independence under majority rule in 1980.
Europeans established colonies in Africa through force and not by mutual agreement of the relevant stakeholders. Colonial institutions, hence, were in the words of Fatton (1990, p. 457), primarily “structures of exploitation, despotism, and degradation.” With the help of technologically superior military and police force, the Europeans imposed on the colonies, institutional arrangements that allowed them to exploit colonial resources, including the people, for the benefit of the metropolitan economies. No attempt or effort was made to provide the colonies with participatory, inclusive and transparent governance structures, and as such, governments in the colonies were neither democratic nor accountable to the people.
Most Africans believed that independence would provide them the opportunity to (1) rid themselves of the Europeans and their laws and institutions; (2) establish in each new country, a dispensation with institutional arrangements that enhanced peaceful coexistence (i.e., effective management of ethnic diversity) and the efficient and equitable allocation of their resources. The new countries’ leaders were expected to undertake state reconstruction and reconstitution through a democratic and consultative process to create new governance structures based on African values, aspirations, traditions, customs and view of the world, and resource allocation systems that enhanced indigenous entrepreneurship, maximized the creation of wealth, and ensured equitable allocation of resources. Unlike their colonial counterparts, the new post-independence institutional arrangements were to be developed by Africans themselves through a bottom-up, participatory, and inclusive process (i.e., through a democratic constitution making process).
In the immediate post-World War II period, as Africans intensified the fight for independence, many of their leaders argued that deteriorating living conditions among the indigenous peoples were the result of European exploitation. They argued further that independence and the capture of the apparatus of government by indigenous elites would provide the state with the wherewithal to deal effectively with poverty and high levels of material deprivation and generally improve the living conditions of all citizens, especially those who had been marginalized by colonial rule. The end of colonialism and the subsequent departure of Europeans was expected to allow Africans to take charge of their own destiny, manage their own social, political, and economic affairs, and take responsibility for the design and execution of policies affecting their lives.
Why, Africa, which has a significant endowment of both natural and human resources, remains one of the poorest regions of the world has been examined by several researchers (e.g., OAU, 1981; World Bank, 1981; Ergas, 1986). Identified as external constraints to economic growth and development in the continent are natural disasters; the international financial system, which has been accused by many African leaders of discriminating against African economies; and the policies of the industrial market economies, most of which have been Africa’s main trade partners and benefactors since the colonial period. Presently, African countries trade almost exclusively with their former colonizers; receive significant food, military, and development aid from these industrialized countries; and depend on them for technology, loans, and foreign investment. The economic relationships established between the African countries and the metropolitan economies have been retained even after more than 40 years of independence. Many countries in Africa are still unable to effectively diversify their economies and eliminate dependence on the West European countries. Inter-African trade, however, remains insignificant as most of the output from these economies is raw materials, which have little or no demand in the continent. Unfortunately, the trade relationship between Africa and Europe remains a one-sided dependency that benefits primarily the Europeans but provides Africans with only marginal benefits (Davenport, 1992; Mbaku, 1995).
Development obstacles that are internal to the continent include corruption, poorly developed economic infrastructures, low domestic savings rates, economic dependency, unmanageable population increases, political violence, including destructive ethnic mobilization, military coups d’état, and unsustainable external debt levels (OAU, 1981; Ergas, 1986; World Bank, 1981).
In the mid-1970s, several researchers began to argue that a significant part of Africa’s continued poverty and underdevelopment was due to policy mistakes committed by poorly educated, ill-informed, and incompetent, but well-meaning civil servants and politicians. Dissemination of the results of this research led to calls throughout the continent for a change in leadership—it was argued that these poorly trained individuals be sacked and replaced by better educated, honest, and more disciplined and skilled managers. As argued then, growth-enhancing policies, especially those that were capable of dealing effectively with poverty, could only be promoted and sustained if each country placed in public office, honest, skilled and competent people (Ergas, 1986; World Bank, 1981; OAU, 1981).
In the many discussions of economic performance in Africa that were carried out both in the continent and abroad (especially at universities and research centers in the developed market economies), not enough attention was paid to or emphasis placed on the role of institutions in economic growth and wealth creation. In each country, the incentives faced by participants in markets are determined by existing laws and institutions. The relatively poor nature of indigenous entrepreneurship and the unwillingness of many individuals to engage in wealth-creating activities can be traced to the poorly-developed, weak, non-viable, and inappropriate institutions that these countries adopted at independence. Rather than enhance and promote entrepreneurship, as well as maximize wealth creation, most of these institutions provided state custodians (civil servants and politicians) with the wherewithal to plunder national economies, distort market incentives, and engage in other opportunistic activities that actually stunted economic growth and development. In addition to the fact that such institutions provided avenues for special interest groups to dominate public policy, they also made it difficult for citizens (especially historically marginalized groups such as women, rural inhabitants, and the urban poor) to engage in productive activities and create the wealth that they needed. Hence, post-independence public policy in many African countries came to be pervaded by corruption, rent seeking and other forms of opportunism (Bates, 1981, 1989).
Since the late 1980s, African countries have been engaged in transition to democratic governance. There remains, however, the belief that the primary cause of the continent’s inability to deal effectively with poverty and improve the living conditions of the people is the absence of competent and disciplined individuals in positions of leadership. Recently, several scholars have argued that the main determinant of Africa’s poor economic performance may not be the lack of competent political leadership but the absence of democratic (i.e., participatory, accountable, inclusive and transparent) institutions. While competent managers may be considered necessary to the development process, they are not a sufficient condition for the effective management of public policy. Institutions that provide traders or market participants with structures that encourage and enhance entrepreneurial activities and wealth creation must be provided (Gwartney and Wagner, 1988; World Bank, 2002; Mbaku, 1997). As research has shown, many of the so-called policy mistakes made by post-independence African leaders have actually been deliberate programs designed and executed by opportunistic public servants seeking ways to generate extra-legal income for themselves and their benefactors. The evidence can be found in how the costs and benefits of these public policies are distributed among the different groups within each country. From apartheid policies in pre-1994 South Africa (which were promoted by the minority white population) to statist economic policies in other African countries (including the Bretton Woods imposed structural adjustment programs), which were promoted by opportunistic bureaucrats and politicians seeking ways to enrich themselves, the beneficiaries were a small politically dominant minority while the bulk of the costs were borne by the population at large, especially historically marginalized and deprived groups and individuals—blacks generally in apartheid South Africa, and women, children, youth, rural inhabitants, the urban poor, and ethnic minorities in other African countries. Hence, even if an African country possesses competent and highly skilled civil servants and politicians, effective economic management and governance are not likely to take place unless a growth-enhancing (i.e., corruption-minimizing) institutional environment is provided.
There is now an abundance of evidence to indicate that economic failure in post-independence Africa has been due primarily to institutional failure. The institutional arrangements adopted by most African countries at independence weakened property rights or rendered them insecure (and as a consequence, discouraged investment in productive activities), enhanced the ability of the government to enact fiscally discriminatory legislation (which further discouraged entrepreneurial initiatives), increased political opportunism (including especially rent seeking and corruption), and significantly stunted private sector innovation and wealth creation. As Africans struggle to alleviate poverty, especially among rural inhabitants and the masses that inhabit the urban periphery, state reconstruction and reconstitution through democratic constitution making to provide (1) laws and institutions that enhance peaceful coexistence of groups (that is, provide the enabling environment for the effective management of ethnic diversity); and (2) the appropriate incentives for the efficient and equitable allocation of resources must be the first line of business. Before we examine democratic constitutionalism and constitution making in Africa, it is necessary to briefly take a look at the origins of the continent’s constitutional problems.
Decolonization should have included, at least, the transformation of the critical domains to make them more suitable for governing post-independence African societies. Had indigenous elites and their European benefactors undertaken the decolonization process democratically (i.e., by providing all relevant stakeholders with the facilities to participate effectively and fully), the outcome would have been a new dispensation based on the people’s (and not the European’s) values—one designed to serve their needs and enhance their ability to maximize their values.
In most African colonies, the decolonization process and preparations for independence were usually dominated or controlled by (1) colonial administrators; (2) European entrepreneurial and commercial interests resident in the colony; and (3) a few indigenous urban elites, most or all of whom had been educated in Europe, had lived there for a while, and had been captured by European culture and values. Members of these three groups, unfortunately, were not representative of the colony’s diverse population, were not elected by the people to represent them in the constitution making project, and were not well educated about social, political and economic conditions then existing in most of the colony. In most instances, certain ethnic groups dominated the committee charged with negotiating on behalf of the African peoples. In some cases (e.g., the British colonies, which in 1910 became the Union of South Africa; and Southern Rhodesia), the process was controlled exclusively by European settlers, with Africans denied full and effective participation.
Throughout the continent, the European colonizers only reluctantly engaged in decolonization (Fatton, 1990). In those colonies in which there were a significant population of settlers, the latter opposed decolonization and engaged in military action to hijack the process and to make certain that the outcome was a dispensation, which would favor their objectives. In Southern Rhodesia and Algeria, such interference produced bloody wars of liberation. In South Africa, opportunism by European settlers, postponed genuine independence and majority rule for more than 80 years and subjected Africans to the cruel, exploitative and inhuman apartheid system. The reluctant and opportunistic reforms implemented during the decolonization process in many African countries (1) failed to deal effectively with the issue of full and effective participation by the indigenous peoples in post-independence governance and resource allocation; (2) failed to fully engage Africans in constitution making to select appropriate and viable rules for the post-independence society; (3) did not successfully transform the critical domains (economic, cultural, and bureaucratic); and (4) did not enhance the viability of the institutions being inherited from the colonial state.
As part of the colonization project, the state established by the Europeans in Africa made an effort to prevent the emergence of an African entrepreneurial class, which could later challenge the Europeans for control of governance and resource allocation in the colony. In colonies dominated by settlers, opposition to indigenous capitalism and efforts to stunt African entrepreneurial activities were quite intense. It was clear to many settlers that independence would change significantly their relationship with the local economy and most likely threaten their monopoly positions. Especially important to settlers were property rights in land, which their ancestors had acquired under questionable circumstances. The solution to this dilemma was either to seize the government (as happened in Southern Rhodesia) or secure pre-independence agreements that would protect their economic and social positions and allow them to continue to maintain their privileges. Hence, it was very important for the settlers to participate (and if possible, dominate) in constitution making in order to make certain that adequate protection was granted their interests in the new dispensation.
The constitutional rules that most African countries adopted at independence did not have the legitimacy, which according to Sundhaussen (1991, 108), usually derives from the “understanding and voluntary acceptance of the constitution by the people as a prescription for settling conflict within society.” Hence, while these constitutions were legal instruments, they lacked legitimacy. Why did these constitutions not reflect the values of the relevant stakeholders, and their cultures and traditions? It was inevitable that these rules would fail to reflect the values of the people to be governed by them; for one thing, constitution making at this time was top-down, elite driven and not participatory. The process was not democratic, bottom-up or people driven. The rules were designed externally—in fact the process was usually undertaken at a location in the métropole—and imposed on the Africans. First, most of the emerging countries based their constitutions on European models, producing rules that did not reflect the realities or specificities of the colony in question. It is true that borrowing ideas from other countries and cultures was not the continent’s main problem; the critical issue was that these models did not reflect the values of the relevant stakeholder groups (i.e., the people whose lives would be governed by the rules selected (LeVine, 1964). Perhaps, more important is the fact that Africans were deprived of the opportunity to determine their own laws and institutions. Second, the process was elite-driven and not participatory. It was dominated by the colonial state, the resident European economic and commercial class, and a few indigenous urban elites. Third, as stated earlier, the constitutional conferences were usually held in the métropole and away from the people, with the latter’s interests represented by an opportunistic urban elite, which had been captured by European culture and value system. Only in rare instances were these elites elected by the people; usually they were appointed by the colonial state, based on their willingness to establish a post-independence political and economic structure that would actually enhance the ability of the departing Europeans to have adequate access to the resources of the former colony (LeVine, 1964). Fourth, in many cases, especially in the French colonies, the final document was a thinly disguised version of the constitution of the new country’s former colonizer. Finally, little or no effort was made to seek out the opinion of the people regarding governance and resource allocation or peaceful coexistence (i.e., the management of ethnic diversity), nor were the people given an opportunity to examine the final document thoroughly and provide the constitutional committee with feedback that could be used to improve the document. Where, as in the case of la République du Cameroun (the former U.N. Trust Territory of Cameroons under French administration, which gained independence on January 1, 1960), the people were given an opportunity to engage in debates of the draft constitution, the exercise was opportunistic, reluctant and carefully controlled and monitored by the government to achieve pre-determined results. As argued eloquently by LeVine (1997, 204), “[c]onstitutional debates were only rarely conducted outside the assizes of the drafting groups, and in most cases the finished product, while often the subject of intense public discussion, remained intact.” A more viable, relevant and effective constitution is more likely to be produced if the compacting process is participatory, bottom-up, inclusive, and involves extensive, full and effective consultation of the people either directly or through their duly elected representatives.
It has been suggested that most of the constitutional rules adopted by African countries at independence may have been a result of political exigency (LeVine, 1964). According to this school of thought, Africans were so eager to gain independence and rid themselves of the European exploiters that they were willing to temporarily postpone democratic and participatory constitution making until after independence and the capture of the apparatus of government by indigenous elites. It was believed and hoped that after independence, the new leaders would engage the people in national debates on constitutionalism and constitution making and seek to (1) compact a more appropriate and effective constitution, based on the values, concerns, interests and customs of the relevant stakeholder groups; (2) secure a more participatory and inclusive form of constitutionalism; and (3) initiate and sustain a national education program on constitutionalism and governance. Throughout the continent, however, the individuals and groups that captured the evacuated structures of colonial hegemony rarely made any effort to engage the people in participatory and democratic constitution making, nor did they institute any education program to enhance the ability of the people to understand and appreciate constitutionalism and governance. These new leaders refused to develop structures for popular participation; erected significant barriers to entry in political and economic markets; privatized the post-colonial state and used the redistributive power of government to accumulate wealth for themselves.
The mass euphoria that accompanied the demise of apartheid in South Africa, the collapse of several authoritarian regimes and military dictatorships in other parts of Africa, and the introduction of democratic governance systems in many countries throughout the continent, has waned and is giving way to a more realistic and cautious view of prospects for democracy and democratization in this part of the world. As argued by several researchers (e.g., Ihonvbere, 2003, 137–138), Africa’s prodemocracy movements continue to face enormous constraints imposed on them by “the legacies of authoritarianism and military dictatorship, decades of economic mismanagement, and the subversion of the popular will,” as well as “the ruthless asphyxiation of civil society and programmed closure of political spaces by Africa’s dictators and the rabid politicization of nationality and identity platforms that precipitated violent conflicts and pogroms….” These are all formidable and significant impediments to the democratization project, in particular, and economic growth and development in general.
What has been achieved in the continent since the 1980s (political liberalization, including the introduction of multiparty political systems) can be considered only as the introduction to or the rudimentary stages of true democratization and the deepening of democracy. Here, true democratization is defined as “the steady and systematic empowerment of the people and their communities in a direction that emphasizes popular participation in decision making, accountability, transparency, social justice, human rights, environmental protection, gender equality, and other pro-people issues of nationality, identity, difference, and pluralism” (Ihonvbere, 2003, 138). Unless and until democracy in Africa is deepened and institutionalized, it will remain vulnerable to subversion by opportunistic state custodians, including termination by military elites.
The failure of many of Africa’s post-Cold War state reconstruction projects to produce institutional environments capable of deepening democracy and enhancing popular participation, as well as transparency and accountability, has renewed interest in constutionalism and democratic constitution making. The argument is that, so far, the continent’s reformers have failed to provide the people with institutional arrangements that enhance the deepening and institutionalization of democracy. That failure, it is argued, is due to the fact that reconstruction and reconstitution of the state, even in the post-Cold War period, has been top-down, elite-driven, and non-participatory (i.e., not democratic). Along with this realization has been the recognition of the constitution as the “tabula rasa on which new patterns of power, rights, and obligations are being written by the ruled and the rulers” (Ihonvbere, 2003, 139). Hence, the constitution and constitution making are now considered an important first step to Africa’s effort to deepen and institutionalize democracy, and provide institutional arrangements that (1) enhance the efficient and equitable allocation of resources; (2) provide the wherewithal for the effective management of ethnic diversity; and (3) significantly improve popular participation.
As constitutionalism and constitution making emerge as the two most important policy issues facing Africans today, it has become imperative to address certain issues associated with these public policy imperatives. First, it is necessary to deal with the issue of participation. In the past, constitution making in Africa has been dominated and controlled by urban-based elites, with most of the people (especially historically marginalized groups and individuals—youth, rural inhabitants, urban poor, and women) denied participation. The results have been constitutional rules that have failed to reflect the aspirations, values, customs, traditions, and preferences of each country’s relevant stakeholder groups. Given the failure of security forces (especially the military) to function as prescribed by the constitution—many of these forces have intervened in national politics and appropriated for themselves, the right to rule, it is necessary to determine, a priori, what role these forces would play in the constitution making process. Second, who should initiate the constitution making process and when should that be undertaken? Third, what method would be used to engage the people in the process of compacting the constitution? Would it, for example, be the national conference or some variant of it? Or would it require a violent grassroots revolution, involving the overthrow of the incumbent regime and the subsequent implementation of a democratic dispensation? Fourth, how would members of the Constitutional Assembly be determined? Fifth, how long should the entire process take? Sixth, will the people consider the final outcome a legitimate instrument for the regulation of their socio-political interaction? And finally, how can one guarantee that the outcome would be institutional arrangements that are relevant to the lives of the people; enhance their ability to use their resources effectively and productively to generate the wealth that they need; provide the wherewithal for the effective management of ethnic diversity; ensure the efficient and equitable allocation of resources; and promote good governance?
Throughout the continent, constitutions crafted through democratic (i.e., bottom-up, participatory, inclusive, and people-driven) processes are being used to domesticate the military, deal with nationality issues, improve the treatment of minorities and other historically marginalized groups, as well as safeguard the rights of the latter, and protect the environment.
As argued by Ihonvbere (2003) and others (see, e.g., Mbaku, 1997), constitutionalism and constitutions are not new phenomena in Africa. Notoriously violent and oppressive states such as apartheid South Africa had a constitution and practiced some form of constitutionalism. Authoritarian regimes and military dictatorships, including those of Sani Abacha in Nigeria, Idi Amin in Uganda, and Jean-Bedel Bokassa in the Central African Republic had constitutions. Regardless of the claims made by them and their apologists, one can hardly consider these governments to have been practicing genuine constitutional governance and/or constitutionalism. While these so-called constitutions were legal documents, they were not legitimate instruments of governance. As argued by Ihonvbere (2003, 139–140), “this is what makes the difference between the mere existence of a constitution and the real existence of a living constitution, owned by the people that serves as the basis of democratic politics and governance—the difference between constitutions and constitutionalism” (emphasis in original).
The majority of post-independence constitutions in Africa could not be considered legitimate because of the way in which they were compacted. A few examples will suffice. The constitutions of most former French colonies in Africa were “amended” copies of the constitution of the Fifth French Republic (see, e.g., LeVine, 1964). As part of the preparations for the independence of the UN Trust Territory of Cameroons under French administration on January 1, 1960, a Consultative Committee was created by Law No. 59–56 of October 31, 1959 and assigned the duty of designing the constitution for the soon-to-be independent territory (Enonchong, 1967, 80; also see LeVine, 1964). In democratic constitution making, membership in the constitutional committee is representative of the society to be governed by the rules selected. Of course, these committee members are chosen directly by the people or indirectly through their elected representatives. The implication here is that the people are enfranchised and provided the facilities to participate fully and effectively in the process of designing the constitution. In such a process, membership in the constitutional committee would be made up of individuals representing the major political parties in the territory or society as determined by free and fair popular elections. If the rules selection process (i.e., constitution making) is dominated by a group of elites, regardless of their intentions or qualifications, the outcome of deliberations would most likely not be an efficient and viable set of rules (see, e.g., Brennan and Buchanan, 1985).
Constitution making in the UN Trust Territory of Cameroons under French administration was not conducted democratically. The process was not people-driven, nor was it participatory and inclusive. For example, the Union des populations du Cameroun (UPC), the territory’s most important indigenous political organization, and the only one which at the time represented a significant part of national political opinion, was denied participation in constitutional discourse. The decision by colonial authorities to deny the UPC participation in the preparations for independence, especially in determining the constitutional rules for the post-independence society, effectively eliminated a significant part of national opinion from the rules selection process (see, e.g., LeVine, 1964; Mbaku, 1997).
In constitution making, it is considered cost effective and appropriate to allow a representative group of individuals to convene and draft the nation’s constitutional rules. To make certain that the outcome of the deliberations is a viable and effective constitutional compact, membership in such a constitution drafting committee must be representative of the society to be governed by the resulting rules. In addition, the committee must actively seek input from the general population, making certain that the relevant stakeholders are provided the wherewithal to articulate, elaborate, and transmit their opinions and concerns about constitutional issues and governance to the appropriate authorities. Unfortunately, constitution making in the territory that would become La République du Cameroun in 1960 was controlled and dominated by (1) the colonial government; (2) French entrepreneurs in the colony (who desired rules that would enhance their ability to maintain control over the post-independence economy); and (3) a few urbanized indigenous elites. The bulk of the indigenous peoples of the colony (i.e., the major stakeholder groups) were not granted full and effective participation in the process. As a result, the outcome may have been a legal document; however, it could not be considered legitimate.
In 1908, Britain’s four colonies in South Africa (Cape of Good Hope, Natal, the Transvaal, and the Orange River Colony) sent representatives to meet in convention to decide whether the colonies should join together to form a single polity and what the nature of such an association would be. These delegates, all of whom were white, met for six months and produced an agreement that was cast in the form of a draft bill. After the latter was ratified by the four colonies, the bill, along with white delegates from the colonies, was sent to England for enactment into law by the British Parliament. In September 1909, the bill was approved by the British Parliament as the South Africa Act (9 Edward VII, c.9) and went into effect on May 31, 1910, creating the Union of South Africa. Throughout the entire process, the majority black population was excluded from participation in any form beneficial to them and hence, the outcome was not likely to reflect the interests, customs, aspirations, and values of the African populations of the four colonies (Cowen, 1961, 43–63).
In other African colonies, constitution making was also top-down, elite-driven, and not participatory. Usually, a delegation of urban-based indigenous elites was appointed by the outgoing colonial government and charged with the responsibility of compacting the constitution. These so-called constitutional committees did most or all of their work in the métropole, away from the people, and rarely if ever, engaged in any reasonable form of consultation of relevant stakeholder groups. While, in some instances, the final documents were placed before the people for debate, the process was opportunistic and carefully designed to minimize input from opposition groups. Hence, the outcome of these pre-independence processes were constitutional compacts that had virtually no relevance to governance and economic problems in the new countries, and were not structured to deal with such important issues as management of ethnic diversity. Building legitimate and effective constitutions requires that the process be democratic (i.e., participatory, people-driven, bottom-up, and inclusive).
Throughout Africa today, there are continuing debates on issues surrounding the reconstruction and reconstitution of the post-colonial state to provide the people with accountable, transparent, and participatory governance structures and economic systems that enhance efficient and equitable allocation of resources. As part of this debate, protection of the person and property of the individual has come up. Hence, there are regular discussions about gender equality; human rights; minority rights; media rights; language rights; the rule of law; and a more effective way to domesticate the military and subject it to constitutional control (see, e.g., Ihonvbere, 2003; Agbese, 2003). In dealing with these issues, it has become evident that constitutional rules secured through a top-down, elite-driven and non-participatory constitution making process offers virtually no help. It is the process-oriented, people-driven, participatory and inclusive constitutionalism that offers the best hope for securing and sustaining these rights and promoting democratic governance in Africa.
While there are many definitions for constitutionalism, its practice must emphasize individual rights and limited government powers. As argued by Shivji (1991), where constitutionalism is practiced, there is separation of powers, periodic (fair and competitive) elections, the rule of law, independence of the judiciary, and the right to private property. It is important to note that in democratic constitution making, the government does not define the rights of individuals. Instead, members of a society form governments to protect their rights as defined by them and elaborated in the constitutional compact. In performing its constitutionally mandated duties, if the government exceeds its authority or abrogates the rights of the people, that government could lose its legitimacy. The behavior of government and its agencies, like that of individuals within the polity, is subject to constraints imposed on it and elaborated in the constitution (Brennan and Buchanan, 1985).
Constitutions, however, must be locally-focused and take into account the specificities of the society to be governed by the rules. While lessons and experiences can be drawn from other societies or countries, it is important to understand that the final document must reflect the tastes and preferences of the relevant stakeholder groups (i.e., those whose lives would be regulated by the rules chosen). Given the importance of participation by all stakeholders in the process of compacting the constitution, it is critical that the constitutional environment be made democratic and competitive. As argued by Trubek and Gallanter (1974), democratic and consultative constitution making require that no individual or group be allowed to dominate or control the process, and that no special characteristics (e.g., race, ethnicity, wealth, religion, social standing, geographic location, etc.) should provide any individual or group systematic advantages or disadvantages in the process of compacting the rules. One, then, must first establish the enabling environment within which constitution making can be undertaken and constitutionalism practiced. Note that constitutionalism as used here implies two critical issues: (1) the democratic constitution making process—used to secure an effective compact for the society; and (2) the various processes utilized to make the constitution a living document that can be used to protect the people, defend their rights (person and property), and generally advance good governance.
Today in Africa, elite-driven, non-participatory, top-down constitutionalism is considered anachronistic, a thing that does not belong, and one that is anathema to good governance. The desire and preference of ordinary African citizens and civil society organizations is participatory and inclusive constitutionalism. Full and effective participation by the relevant stakeholders in constitutional design is critical for producing rules that are considered legitimate tools for the regulation of socio-political interaction in society. Conducting research and securing the necessary technical data to design the constitution is only part of the process of making certain that the outcome is a document that is relevant and meets society’s goals. Providing all relevant stakeholder groups with the facilities to participate fully and effectively in the constitution making process will significantly improve chances that (1) the rules selected will be relevant to the lives of stakeholders; (2) benefits to gainers are maximized and costs to losers are minimized; (3) the outcome will be considered a legitimate governance tool (i.e., one that can be used to defend their person and their property, enhance the equitable and efficient allocation of resources, and enhance peaceful coexistence of groups), significantly improving compliance and minimizing the costs of policing; and (4) governance will be viewed by the people as democratic. Of course, it is important to note that full and effective participation of relevant stakeholder groups in institutional reforms is part of democratic governance. Such an inclusive and participatory approach is in line with the recent rise in demands by Africans, since the end of the Cold War, for increased levels of accountability from their public officials; more participation, by the people, in the design and implementation of policies affecting their lives and welfare, in particular and governance, in general; and government to be more relevant to their lives.
Since the late 1980s, Africans have continued to pressure their governments to make governance more participatory and inclusive, and many of these governments have responded positively and decentralized governance in an effort to enhance the participation of the various social and ethnic cleavages that exist in each country. In several countries throughout the continent, various civil society groups have been empowered and provided the facilities to participate more fully and effectively in designing and implementing policies for improving governance and dealing with poverty and deprivation. Entrepreneurs, intellectuals, students, journalists, farmers, representatives of various civil society organizations, as well as ordinary citizens, have been empowered to participate in policy design and implementation (Robb, 1999; also see Brinkerhoff and Crosby, 2002). These developments augur well for participatory and inclusive constitutionalism, a process that is critical for the deepening and institutionalization of democracy in the continent.
So that participation can be effectively carried out, there must exist an environment that promotes and enhances dialogue, public debate, accommodation, and political give-and-take. The existence of such an environment necessarily enhances peace and promotes democracy. Of course, the decision to allow all relevant stakeholders to participate, implies that the process of compacting the constitution will be located within popular constituencies—significantly reducing the influence of the state and the ability of the latter’s custodians (i.e., civil servants and politicians) to engage in opportunistic manipulation of the process for their own benefit. Perhaps, more important is the fact that a participatory approach to constitution making makes certain that issues relevant to the people will be at the center of the deliberations. Vexing issues of language, nationality, identity and citizenship, gender, resource allocation (with specific emphasis on property rights, especially in land)—all issues that are critical to the people, but which have been avoided or treated in an opportunistic manner by previous constitutional exercises—will feature prominently in the deliberations. With active participation in the constitution making process, citizens are more likely to claim ownership of the outcome, see it as a product of their hard work, and would be more willing to defend it against subversion or appropriation by any interest group (e.g., the military). Perhaps, more important is the fact that if citizens participate in the design of laws, they are more likely to obey them and make sure that they function properly. That should reduce the costs of compliance and significantly improve governance.
Since the late 1980s, Africans have been engaged in efforts to reconstruct and reconstitute their states and introduce new dispensations, which they believe will create the environment for democratic governance. Unfortunately, many of the democratic projects that were initiated shortly after the end of the Cold War have failed to be sustained. Many of them have collapsed and several countries have reverted to authoritarianism. Part of the problem derives from the inability of these countries to undertake state reconstruction through a democratic process. In order for the continent’s transition to democratic governance projects to yield the expected outcomes, a participatory approach to constitution making must be adopted. The process of designing the rules to govern society is very important for successful governance. Unless that process is participatory and inclusive, it will fail to produce rules that are relevant to the lives of the people and the people will continue to see such laws and institutions as alien impositions designed to exploit and marginalize them.
Participatory constitution making not only produces a compact that will reflect the tastes and preferences of the people and be considered by them as a legitimate governance tool, but helps develop a culture of the type of constitutionalism that enhances the deepening and institutionalization of democracy. For, as argued by Kanyongolo (1998, 2), the “existence of a constitution which articulates democratic values and principles is not sufficient for the establishment of the political system which is democratic in practice.” A culture of democratic constitutionalism must be created and sustained within the country in order for democracy to be deepened and institutionalized. Participatory constitution making sets the stage for the creation and sustaining of such a culture.
Africa’s slowly evolving democratic culture is a welcome departure from its authoritarian and non-participatory political past. Granted, there have been delays, diversions, and in some cases, significant setbacks. However, the future looks quite bright, especially given the renewed interest throughout the continent in participatory forms of public engagement. In virtually all countries, organizations, individuals, groups, and communities that had hitherto been excluded from participation are now either taking part in public deliberations or vigorously protesting their continued marginalization. The future for stakeholder participation in public policy in Africa looks quite bright and that augurs well for governance and the allocation of resources. Participatory and inclusive constitution making should provide the foundation for moving the continent’s democracy projects forward and providing dispensations that enhance peaceful coexistence, maximize wealth creation, and ensure the efficient and equitable allocation of resources.
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Citation Format:
John Mukum Mbaku. “Constitutionalism and Governance in Africa,” West Africa Review: Issue 6, 2004.
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