Constitutions and the Rule of Law in Africa since Independance

an African dialogue

28 – 29 October 2010

Old Mess Hall, Old Fort, Constitution Hill

The issue of constitutions in Africa as the cornerstone of independent and democratic societies is not new: in the 1960s, the era of the Independences in both anglophone and francophone Africa, just like that of the liberation struggles in Southern Africa in the 1970s and the 1980s, gave way to reflections and processes on constitution-building.

In the 1960s, debates focused mainly around the writing of the constitution. A constitution was needed to herald the birth of a new state. It was supposed to describe the future state of the nation and was not supported by constitutionalist movements. The constitutional text was supposed to be self-sufficient and little interest was paid to the support it received from political elites or the people. In general, these texts were directly derived from the constitution of the relevant colonial powers (and in francophone Africa, from the French constitution of 1958, see Fauré 1981 in this regard). As a result these texts were fragile, contested and unable to act as safeguards against political rivalries and coups. Little interest was paid to the political aspects of law.

In the late 1980s, early 1990s, a wind of change started blowing over the understanding of constitutions in Africa, and particularly in francophone Africa. Constitutionalism became a major ideology around which large parts of civil societies gathered to support the making of a new social contract and promote the rule of law. The birth of these constitutionalist movements indeed heralded a renewed interest in the constitution as a primary tool for implementing a democratic state run by the rule of law (for a review of these movements in West Africa, see Mbaye, 2008) and for organising a new type of social contract. It also marked the beginning of a convergence on the continent, between the various types of constitutions derived mostly in their initial stage from the model of former colonial powers. Although the forms, processes and tools used in francophone and anglophone African countries remain substantially different, clear convergences are at work: one could question whether the tools adopted as democratic safeguards and means of implementing the ideals of constitutions, as well as the actual form of the texts, are not converging towards an African model, or whether this homogenization reflects the imposition of international standards coming from outside of Africa (see Du Bois de Gaudusson, 2009 in this regard). Another central question remains with regards to issues of legitimacy attached to such converging constitutions: while a few dominant features are now broadly incorporated across the continent (multiparty systems, open elections, etc.) it does not guarantee the social appropriation of these features by the population (on this issue in Senegal, see Thiam 2007). The francophone experience, vitality and sometimes failures of constitutionalist movements since the 1990s could fruitfully be compared to the Southern African situation, which is not currently immune to discussions around constitutional transformation (see for instance the beginning of the Zimbabwean process of constitutional change or current debates in Namibia and Mozambique in this regard) for the implementation of democracy and the rule of law.

Panel 1: History of the Implementation and Transformations of African Constitutions

During the sixties, access to independence led many new States to formulate constitutions and thereby establish institutional bases. These constitutions, which were drafted without any form of public consultation by a class of political leaders trained in Europe, were strongly inspired by the judicial traditions of former colonial powers and, generally, were not widely adhered to by citizens. In time, these constitutions proved fragile and became increasingly contested, unable to prevent military coups and one-party systems.
In Southern Africa, constitutional issues were, from the beginning already, central to the claims of national freedom movements, following the example of the Freedom Charter that, already in 1955, was spelling out the principles of a non racial and democratic South African society. The endeavours of various Southern African countries during the political transition, involved above all the elaboration of consensual constitutions gathering various actors around a new political and societal project. The constitutional texts then led to the crystallisation of agreements sealed during the negotiations, although these did not always make it possible to consolidate the new institutional and political order.

In the light of the different African constitution writing histories, the panel will specify and compare experiences in francophone and anglophone African countries, and Southern Africa in particular. The main question will be to understand whether the fragility of the first constitutions was due mainly to the conditions under which they were elaborated, to the transposition of foreign rules and principles to the societies they were supposed to govern, or to the nature of the normative and institutional systems being implemented. As such, we will question the absence of consultation or, on the contrary, the long negotiation processes that contributed to de-legitimise or finalise new constitutions.

Panel 2: Constitutions currently in Africa: Legitimacy and Appropriation

At the end of the 1980s, beginning of the 1990s, many African and francophone African countries in particular began to grasp constitutions differently. Civil societies used this wave of change to carry out a democratisation process to initiate real changes. Central to the political debate, these new texts intended mainly to guarantee political pluralism and to act as a safeguard against abuse of power.
This period also marked the beginning of a convergence on the continent between the constitutions of francophone countries and those of anglophone countries, in a context where governments were urged by sponsors and international organisations to practice good governance.
In this panel, we will consider whether the tools adopted as democratic guarantee, the means for implementing constitutional ideals and the actual text form, converge towards an African model or whether, on the other hand, this homogenisation reflects the imposing of again extra-African standards. Moreover, while many constitutions paradoxically favoured the big man syndrome, the panel will also question the effectiveness of constitutional practices as well as their social appropriation by the populations; in short we will need to tackle the issue of the legitimacy of the authorities in these countries.

Projection / debate: Cuba, an African Odyssey

by Jihan El-Tahri. 2007 ARTE France – Temps Noir – Big Sister – ITVS – BBC

Cuba, an African Odyssey tells the story of the Cold War through the prism of its least known theatre: Africa.
From 1961 to 1991, this continent is the battleground for a war between four competing and opposing interests: the Soviet Union which sought to extend its influence; the US interested in capturing the Africa’s natural resources; former European colonial empires and young African nations trying to defend their newly-won independence. Called on to help these new nations in their revolutionary struggle, Cuba played a central, yet little known, role in supporting African national liberation. Cuba, an African Odyssey attempts to understand the world today through the saga of these internationalists who won every battle but finally lost the war.

Panel 3: Prospective: What Role Do the Former and New Powers Play in the Assertion of the Rule of Law in Africa?

During his famous speech given in La Baule on the 20th of June 1990, former French President François Mitterrand expressed a strong wish to see France give her support to the democratisation process in francophone Africa during the 1990s. Shortly after, South Africa, with a democratic transition and a constitution set up as international model, came out as the new lifeblood of the continent, and was led to intervene a few years later as mediating power in the political crises of her neighbours. In time, former colonial powers together with South Africa expressed their intention to play their part in the advancement of democracy in Africa. What actions can these actors implement today to support the development of the rule of law in Africa, and what intellectual debate can they contribute as regards African Constitutions?

> Full programme & biographies: English | Français

Partners: French Institute of South Africa; Constitution Hill; IRG – Institute for Research and Debate on Governance; ARGA – The Alliance to Refound Gouvernance in Africa; Culturefrance.