By Fonju Ndemesah
With the growth in size and complexities of African states, with the increase in number of African countries defining their political system as liberal democracies, constitutions have become key elements in organizing the polity. In addition, unlike the immediate post independent constitutions with one party monopolizing the interpretation and implementation, the multiparty environment has pushed many politicians, scholars, journalists, and citizens to look at the constitutions with keen interests.
Political scientists regard the constitution of a nation as the body of the key rules governing the country. These rules outline the structures of power and authority, and the relation power and authority shares with the governed. Regretfully, in many parts of Africa, the constitution - which is suppose to play a key role in guiding the various actions, reactions, and pro-action of the various political cleavages, is slowly losing its authority as a “map or diagram purporting to outline the fundamental nature of the state as it exists and operates”.
What is the importance of a constitution?
Before going in depth into describing the aspects supporting the belief that in many parts of Africa there are constitutions without constitutionalism, let’s first of all look at some of the importance of constitutions in modern democracies. For scholars like C.M. Fomba (2007), constitutions are usually designed in order to ensure political stability. The overwhelming majority of African countries claim to be democracies, and nearly all of them say they are parliamentary democracies; some even describe their democracies as “advanced democracies”, like in Cameroon. This implicitly brings in mind the relationship between the executive, the legislative and judiciary. A constitution thus helps to make sure the rules are clear, and that what dominates is the rule of law, not the rule of force. Constitutionalists say constitutions may serve the following function: describing the relationships between the various primary institutions and office of the state, defining who exercises authority and what type of authority is involved. In addition, constitutions may, but not obligatorily, divide jurisdictions between levels of government and relationships between them. They may also outline the rights of citizens and steps to take to repair any violation of their freedom.
From the above outline, it is clear that a constitution is a fundamental piece in any modern democracy. It may be written, as in many African countries and some old democracies in Europe, or, simply not written as in the UK. Then, the questions is, with all the above mentioned positive intention harbored in the conception of a constitution, what then is wrong with some African constitutions for them to be considered as huddle in the democratization process?
Political egoism, changing everything to remain equal
Many African countries have experienced constitutional changes in the recent years. After the "successful" experience of Chad, Mauritania, Tunisia, Guinea, Gabon, Togo, Burkina Faso and Cameroon, the lines to retouch the constitutions is becoming longer and longer, especially with the growth of what some observers have called “monarchical democracies”, and "democrature", where constitutions are respected solely when they don’t threaten the interest of the hegemonic group. The consequence of this tendency is the growing number of hereditary democracies, where constitutions are modified overnight, most often against popular will, to make way for the president’s son or daughter. That is, for example, the case in Gabon, where Omar Bongo Ondimba, after ruling Gabon for 41 years, prepared the way for Ali Bongo Ondimba , and in Togo where Étienne Eyadéma Gnassingbé prepared the way for Faure Essozimna Gnassingbé, who became president in May 4, 2005, and finally in the Democratic Republic of Congo where Joseph Kabila took the place of Laurent. D. Kabila.
However, the problem here is not the fact that a son replaces the father, but that to know whether the sovereign will of the people has been taken into account. It should be clear that whether we are talking of a formal (written) or material constitution (actual structure), every constitution has to be adapted to its epoch. This flexible nature of the constitutions is recognized my constitutionalists, who point at least four ways a constitution can be amended: legislative revision, by a periodic replacement of the entire document, by formal amendment process and judicial interpretation. (2)
Regretfully, according to many observers of the political scene in Africa, many constitutional modifications are done solely to satisfy the lust for power of a few, thus undermining the backbone of constitutionalism, that is, the willingness to abide by the rules set in place by the constitution, not changing the rules overnight to stay in power or favor one group. Adewalo Banjo, an expert in African development, cited by Ighobor, Kingsley (2013), says without the rule of law, there can be "constitutional somersaults which bear all the hallmarks of what ridicules Africa before the world."
Symbolic constitutionalism, text without context
As noted earlier, the constitution helps each and everyone to understand who makes the decision, how the decision will be made and which decision can be made. Beyond all, it is also a willingness to abide by the rule. From these functions, one can clearly denote a desire to organize, to avoid arbitrary actions and a quest for equality for all in all state actions. It is also clear that, for such a laudable action to produce concrete and durable results, it has to focus on the various realities of the societies it is endeavoring to organize. The political culture of the society needs to shape the constitution. This will thus help to define the boundaries of political activities within a polity, which will then help to better circumcise the limit of political possibility. Regretfully, this is not the case with many postcolonial constitutions in Africa which were simple photocopies of the constitutions of the former colonial powers, with or without any significant effort to adapt the said constitutions to the diverse socio-political, cultural and linguistic particularities of the independent countries. This has pushed some experts like Fombad, C.M (2007) to declare that, “African independent constitutions were pretty fragile and technically defective documents which inevitably contributed to the political turmoil and resulting economic crisis that made it impossible to build solid constitutional and democratic polities on the continent”.
To conclude, one can say the lack of constitutionalism is a serious setback to the democratization process in many African countries. For this to be redressed, political egoism should give way to real democracy, with strong and independent institutions. African leaders should stop taking advantage of the fragile transitional process, institutional voids, as well as some of the flaws in the new or revised constitutions to make changes that seek to perpetuate their hold on power (C.M. Fomba).
Sources
1) Johnston, Larry. (1997) Politics: An Introduction to the Modern Democratic State, Toronto, Broadview press
2) CHARLES MANGA FOMBAD(2007), Limits on the Powers to Amend Constitutions: Recent Trends in Africa and their Potential Impact on Constitutionalism. Paper Presented at the World Congress of Constitutional Law, Athens, Greece, 11 -15 June 2007, http://www.enelsyn.gr/papers/w9/Paper%20by%20Prof.%20Charles%20Manga%20Fombad.pdf
3) Ighobor, Kingsley (2013) ‘Politics of succession: coping when leaders die’, Africa Renewal, January 2013, http://www.un.org/africarenewal/magazine/january-2013/politics-succession-coping-when-leaders-die
With the growth in size and complexities of African states, with the increase in number of African countries defining their political system as liberal democracies, constitutions have become key elements in organizing the polity. In addition, unlike the immediate post independent constitutions with one party monopolizing the interpretation and implementation, the multiparty environment has pushed many politicians, scholars, journalists, and citizens to look at the constitutions with keen interests.
Political scientists regard the constitution of a nation as the body of the key rules governing the country. These rules outline the structures of power and authority, and the relation power and authority shares with the governed. Regretfully, in many parts of Africa, the constitution - which is suppose to play a key role in guiding the various actions, reactions, and pro-action of the various political cleavages, is slowly losing its authority as a “map or diagram purporting to outline the fundamental nature of the state as it exists and operates”.
What is the importance of a constitution?
Before going in depth into describing the aspects supporting the belief that in many parts of Africa there are constitutions without constitutionalism, let’s first of all look at some of the importance of constitutions in modern democracies. For scholars like C.M. Fomba (2007), constitutions are usually designed in order to ensure political stability. The overwhelming majority of African countries claim to be democracies, and nearly all of them say they are parliamentary democracies; some even describe their democracies as “advanced democracies”, like in Cameroon. This implicitly brings in mind the relationship between the executive, the legislative and judiciary. A constitution thus helps to make sure the rules are clear, and that what dominates is the rule of law, not the rule of force. Constitutionalists say constitutions may serve the following function: describing the relationships between the various primary institutions and office of the state, defining who exercises authority and what type of authority is involved. In addition, constitutions may, but not obligatorily, divide jurisdictions between levels of government and relationships between them. They may also outline the rights of citizens and steps to take to repair any violation of their freedom.
From the above outline, it is clear that a constitution is a fundamental piece in any modern democracy. It may be written, as in many African countries and some old democracies in Europe, or, simply not written as in the UK. Then, the questions is, with all the above mentioned positive intention harbored in the conception of a constitution, what then is wrong with some African constitutions for them to be considered as huddle in the democratization process?
Political egoism, changing everything to remain equal
Many African countries have experienced constitutional changes in the recent years. After the "successful" experience of Chad, Mauritania, Tunisia, Guinea, Gabon, Togo, Burkina Faso and Cameroon, the lines to retouch the constitutions is becoming longer and longer, especially with the growth of what some observers have called “monarchical democracies”, and "democrature", where constitutions are respected solely when they don’t threaten the interest of the hegemonic group. The consequence of this tendency is the growing number of hereditary democracies, where constitutions are modified overnight, most often against popular will, to make way for the president’s son or daughter. That is, for example, the case in Gabon, where Omar Bongo Ondimba, after ruling Gabon for 41 years, prepared the way for Ali Bongo Ondimba , and in Togo where Étienne Eyadéma Gnassingbé prepared the way for Faure Essozimna Gnassingbé, who became president in May 4, 2005, and finally in the Democratic Republic of Congo where Joseph Kabila took the place of Laurent. D. Kabila.
However, the problem here is not the fact that a son replaces the father, but that to know whether the sovereign will of the people has been taken into account. It should be clear that whether we are talking of a formal (written) or material constitution (actual structure), every constitution has to be adapted to its epoch. This flexible nature of the constitutions is recognized my constitutionalists, who point at least four ways a constitution can be amended: legislative revision, by a periodic replacement of the entire document, by formal amendment process and judicial interpretation. (2)
Regretfully, according to many observers of the political scene in Africa, many constitutional modifications are done solely to satisfy the lust for power of a few, thus undermining the backbone of constitutionalism, that is, the willingness to abide by the rules set in place by the constitution, not changing the rules overnight to stay in power or favor one group. Adewalo Banjo, an expert in African development, cited by Ighobor, Kingsley (2013), says without the rule of law, there can be "constitutional somersaults which bear all the hallmarks of what ridicules Africa before the world."
Symbolic constitutionalism, text without context
As noted earlier, the constitution helps each and everyone to understand who makes the decision, how the decision will be made and which decision can be made. Beyond all, it is also a willingness to abide by the rule. From these functions, one can clearly denote a desire to organize, to avoid arbitrary actions and a quest for equality for all in all state actions. It is also clear that, for such a laudable action to produce concrete and durable results, it has to focus on the various realities of the societies it is endeavoring to organize. The political culture of the society needs to shape the constitution. This will thus help to define the boundaries of political activities within a polity, which will then help to better circumcise the limit of political possibility. Regretfully, this is not the case with many postcolonial constitutions in Africa which were simple photocopies of the constitutions of the former colonial powers, with or without any significant effort to adapt the said constitutions to the diverse socio-political, cultural and linguistic particularities of the independent countries. This has pushed some experts like Fombad, C.M (2007) to declare that, “African independent constitutions were pretty fragile and technically defective documents which inevitably contributed to the political turmoil and resulting economic crisis that made it impossible to build solid constitutional and democratic polities on the continent”.
To conclude, one can say the lack of constitutionalism is a serious setback to the democratization process in many African countries. For this to be redressed, political egoism should give way to real democracy, with strong and independent institutions. African leaders should stop taking advantage of the fragile transitional process, institutional voids, as well as some of the flaws in the new or revised constitutions to make changes that seek to perpetuate their hold on power (C.M. Fomba).
Sources
1) Johnston, Larry. (1997) Politics: An Introduction to the Modern Democratic State, Toronto, Broadview press
2) CHARLES MANGA FOMBAD(2007), Limits on the Powers to Amend Constitutions: Recent Trends in Africa and their Potential Impact on Constitutionalism. Paper Presented at the World Congress of Constitutional Law, Athens, Greece, 11 -15 June 2007, http://www.enelsyn.gr/papers/w9/Paper%20by%20Prof.%20Charles%20Manga%20Fombad.pdf
3) Ighobor, Kingsley (2013) ‘Politics of succession: coping when leaders die’, Africa Renewal, January 2013, http://www.un.org/africarenewal/magazine/january-2013/politics-succession-coping-when-leaders-die
