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Looking for the rule of law - Africa's new age constitutions

Friday March 06 2020
By LUIS FRANCESCHI

The 2010 Kenyan Constitution turns 10 this year. August 27, 2010 will not only mark the day the Constitution was promulgated into law, but also the start of a new era; one with the promise of a brighter future for Kenya. The post-election violence of 2007/08 led to the last push for constitutional change. Before this, there were pushes for change in our constitutional dispensation. The then malleable independence constitution had outlived its time and it was time to usher in a new constitution.

Just like democratisation has been described in waves, the same can be said for constitution-making. There have been four waves in constitution-making.

Norwegian scholar Jon Elster wrote about constitution-making waves in 1995, when he explored constitutions from around the world. He wrote about seven different waves. His idea was extrapolated to suit the African context and the waves of constitution-making within the continent. So far, there have been four major waves observed in Africa. Each of the waves paved the way for the forward-looking constitutions around Africa that came post 1990 and later post 2010.

It is therefore fitting to take stock after 10 years within the current constitutional dispensation with a series of articles. This week we begin the series by tracing our steps from the 1963 independence constitution, to the 2010 Constitution. We also dare to imagine what the future of constitution-making might look like.

First wave constitution-making – independence constitutions

For African countries with a colonial past, the first wave constitutions were created at the point of independence. These independence constitutions marked the transfer of power from colonial governments to emerging African politicians, who typically led the struggle for independence in the late 1950s and early 1960s.

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These constitutions were mainly crafted by the departing colonial powers, the Belgians in Brussels, the British in London, and the French in Paris. Consultations with the incoming African political leaders were limited and there was no involvement of ordinary Africans in the constitution-making process. For obvious reasons, this was a detrimental strategy.

Kenya’s Independence Constitution of 1963 was a long and complex document negotiated between the emerging Kenyan politicians and the colonial government during the Lancaster House conferences of 1960, 1962 and 1963. There was generally little faith in the resulting Constitution as it was not an autochthonous document representative of the needs of the people.

Colonial governments typically did not use documents resembling a constitution to govern their subjects. Ironically though, the constitutions they helped draft introduced ideas such as European liberal democracy and constitutionalism. Within these ideas are the division and diffusion of powers, checks and balances, limited government, and the protection of individual and minority rights. It was ambitious to believe that these constitutions would prevent the colonial authoritarian style rule from continuing into the post-colonial period especially, as Acemoglu and Robinson have noted in Why Nations Fail, it was colonial policy to destroy and dismember indigenous systems of government and authority.

Independence constitutions transferred power without necessarily providing for solid limitations to that power. The result was that the new politicians carried the colonial lessons of repression and authoritarianism into the post-colonial period. There was barely a transition from colonial times to free states governed under the rule of law.

The main takeaway from this first wave of constitution-making was the idea that constitutions cannot be made in a vacuum. They must consider the aspirations of the people for whom they are made, or they will fail. This failure to provide stability is reminiscent of Chinua Achebe’s Things Fall Apart in which he warns that if the centre cannot hold, then things are bound to fall apart.

Second wave constitution-making – constitutions as malleable objects

True to the sentiments of Achebe, the second wave of constitution-making is characterised as the systematic dismantling of independence constitutions from the 1960s to the 1980s.

Because of the shaky foundations of the independence constitutions, it was not long before those in leadership began questioning their allegiance to those constitutions. The feeling shared by many African leaders was that concepts such as democracy, multi-party competition, and separation of powers did not address the urgent needs of the newly-independent countries.

Under the pretext of nation-building and development, independence constitutions were progressively reshaped and made malleable objects to serve as the legal basis for one-party rule or military dictatorships or were completely discarded in their entirety.

Less than a year after the promulgation of Kenya’s independence constitution there were changes being made to the document. Among the major changes within Kenya’s independence constitution included the centralisation of power by the executive branch of government through the shift from a parliamentary system to a presidential system and the abolition of security of office for the judicial officers like judges, the auditor-general and the attorney general so the president could dismiss them at will.

During Moi’s presidency in the late 70s through the 90s, Kenya was converted into a one-party state. Around Africa, countries moved towards presidential systems of government through extreme concentration of powers in a personalised executive who controlled both the legislature and the judiciary.

One of the main arguments against multi-partyism at that time was that it would promote division, tribalism as well as lead to unnecessary spending of state resources. Instead, the message behind one-party rule was that states needed to focus on goals such as national unity, political stability, and economic development. In support of one-party systems, the late President Julius Nyerere, former President of the Republic of Tanzania, argued that one-party systems “were not, therefore, political ‘parties’—i.e factions—but nationalist movements. And from the outset they represented the interests and aspirations of the whole nation.”

In some post-colonial states, little attention was paid to judiciaries and judicial personnel, meaning they were not equipped to handle the concentration of power in the executive or to help nations avoid authoritarian rule. The issue of weak judiciaries was aggravated by the introduction of one-party systems in some countries (e.g. Kenya and Tanzania) and military dictatorships in many others (e.g. Uganda).

If independent constitutions seemed removed from the people, the systematic amendments further alienated them from governance and consolidated state power and resources in the ruling elite. There was a growing resentment of the status quo and demands for better, more positive constitutional reforms grew.

The common aspiration was to have an overhaul of the state structure and governance system backed by a constitutional system where the will of the people was the basis of authority and exercise of public power. The disappointment in the failure of the constitution to withstand political whims is brilliantly explored by the late Okoth Ogendo in his paper “Constitutions without Constitutionalism”.

Third wave constitution-making – minor revisions

Many African countries undertook another round of constitution-making and revisions to address the issues that had been identified. Amidst both internal and external pressure, states eventually introduced bills of rights and introduced multiparty elections.
Describing the third wave, Charles Fombad writes:

The drafting of new constitutions and the revising of old constitutions by most African countries in the 1990s was a clear recognition of the need for radical changes to the status quo ante. In some cases, it meant a total break with a dreadful past—such as apartheid in Southern Africa— but in most cases it meant recognising that a constitutional framework built around the one party system that had bred authoritarian and dictatorial rule was a recipe for political instability and economic decline.

The third wave was instrumental in ensuring better adherence to the rule of law. By 2002 the World Bank noted that South Africa, among five other African countries, exhibited a positive rule of law rating. This meant there was an evident and observable improvement in the separation of powers, an even distribution of power and respect for the law.

For Kenya, the 1990s began the push for constitutional reforms that resulted in the 2010 Constitution. Political activists, religious leaders, civil society among international players called for multipartyism. The democratic spirit began to grow with the introduction of multiparty political competition in 1992.

Fourth wave constitution-making - the tipping point

Although post-1990 constitutions are regarded as modern constitutions, post-2010 marked a new wave of constitution-making in Africa. Constitutions written or amended significantly from 2010 are considered “constitutions 4.0”. Since 2010, new constitutions have cropped up in Angola, Kenya, Madagascar, Somalia, and Zimbabwe.

Similarly, in 2011 the Arab Spring in North Africa saw widespread protests across Egypt, Libya and Tunisia that resulted in the removal from power of long-term dictators Hosni Mubarak, Muammar Gadaffi and Ben Ali. After this there were increased consultations in North Africa geared towards the adoption of new constitutions. Egypt, Libya, Morocco and Tunisia all adopted new constitutions after the Arab Spring.

Despite the significant changes in constitutions over time, there remain serious problems in the way executive power is understood constitutionally. Since 2015, Algeria, Burundi, the Comoros, Chad, Gabon, the Republic of Congo, Rwanda, Togo, and Uganda amended their constitutions in favour of incumbents, either to centralise power or to extend term limits.

We have previously discussed the dangers of a powerful executive. Although unforgivable and damaging, it is understandable; the existence of a constitution is not proof of a commitment to the principles of constitutionalism, which includes the rule of law.
In Kenya, we have had 10 years of experience under the current constitutional dispensation. Alongside Botswana’s and South Africa’s constitutions, the 2010 Constitution is regarded as one of the most transformative constitutions in Africa and even the world. Writing about the 2010 Constitution, the author of our Constitution, Yash Pal Ghai alongside his wife Jill Cottrell Ghai named it an “Instrument for Change”.

Constitutions 4.0 attempt to address some of the structural weaknesses that have made repressive and autocratic rule almost inevitable in Africa, the decentralisation of power structures, the separation of powers, institutions to promote transparency and accountability, the legitimisation of multipartyism and the recognition and protection of human rights.

Constitutions 4.0 are aptly described as ‘made in Africa’. The 2010 Kenyan Constitution is a great example of this type of constitution. It was not only drafted by Kenyans, but it also had the people in mind as seen with the extensive public participation incorporated into the drafting process.

Possible fifth wave – which way will it go?
Constitutions 4.0 are reactionary creatures that not only break away from independence constitutions but also from the generation of independence leaders. Some countries like Tanzania were quick to overhaul their socio-economic systems post-independence. Ujamaa, a version of socialism proposed by President Nyerere, was the complete opposite of their colonial past. Tanzania, though, has not had any major constitutional changes since the 70s, and certainly has not adopted a new age constitution.

The future of constitution-making will largely be determined by trends in democracy, economic development, income and wealth distribution as well as other factors. Therefore, as we examine our constitutions and the developments we have had, we must be cognisant of the global winds of change. Our democracy is not perfect and there are other systems of governance that are not only bringing prosperity to their people but also gaining influence around the world.

As we predict what the fifth wave of constitution-making will look like, we will ask questions such as: are the systems that keep cropping up sustainable in the long run? Will less democracy mean more sensible outcomes or less legitimacy?

It is our responsibility to remain informed and inform decisions that will affect our futures and those of others. While we have become comfortable within the democracy guaranteed in our constitution, we must also be awake to the trends in various countries and decide what our future will look like.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:

• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London

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