Constitutionalism and Democratic Governance in Africa

395 Pages·2013·2.51 MB·English

Constitutionalism and
Democratic Governance in Africa:
Contemporary Perspectives from Sub-Saharan Africa
Morris Kiwinda Mbondenyi
(LLD, LLM (UNISA), LLB (Moi))
Senior Lecturer in Law, Africa Nazarene University
Tom Ojienda
(LLD (UNISA), LLM (Kings College), LLB (Nairobi))
Associate Professor of Law, Moi University
with the assistance of Thuto Moratuoa Hlalele
Centre for Human Rights, Faculty of Law, University of Pretoria
2013
Constitutionalism and democratic governance in Africa:
Contemporary perspectives from Sub-Saharan Africa
Published by:
Pretoria University Law Press (PULP)
The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law,
University of Pretoria, South Africa. PULP endeavours to publish and make
available innovative, high-quality scholarly texts on law in Africa. PULP also
publishes a series of collections of legal documents related to public law in Africa,
as well as text books from African countries other than South Africa. This book
was peer reviewed prior to publication.
For more information on PULP, see www.pulp.up.ac.za
Printed and bound by:
ABC Press
Cape Town
To order, contact:
PULP
Faculty of Law
University of Pretoria
South Africa
0002
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Cover:
Yolanda Booyzen, Centre for Human Rights
Photograph: ‘Nothing is set in stone’ by O.F.E. on Flickr
ISBN: 978-1-920538-14-9
© 2013
TABLE OF CONTENTS
FOREWORD AND DEDICATION ix
CONTRIBUTORS xiii
PART I: GENERAL THEORETICAL PERSPECTIVES
1
Introduction to and overview of constitutionalism
and democratic governance in Africa
Morris Kiwinda Mbondenyi and Tom Ojienda
1 Introduction 3
2 Overview of the book 6
2.1 General theoretical perspectives 6
2.2 Perspectives on constitutionalism, constitution-
making and constitutional reforms in Africa 7
2.3 Perspectives on democratic governance in Africa 11
PART II: PERSPECTIVES ON CONSTITUTIONALISM,
CONSTITUTION-MAKING AND CONSTITUTIONAL REFORMS
2
Tanzania’s experience with constitutionalism,
constitution-making and constitutional reforms
Benedict Maige Nchalla
1 Introduction 15
2 Tanzania: An overview of the political system 17
3 Conceptualisation 19
3.1 Constitution 19
3.2 Constitutionalism 21
3.3 Constitutional reform versus constitution-making 23
4 Constitution-making vis à vis constitutionalism in
Tanzania: How far? 24
5 Constitution-making in Tanzania: A glimpse of the
historical backdrop 26
5.1 Independence Constitution of 1961 26
5.2 Republican Constitution of 1962 27
5.3 Union between Tanganyika and Zanzibar of 1964 28
5.4 Constitution of the United Republic of Tanganyika
and Zanzibar of 1964 31
5.5 Interim Constitution of Tanzania of 1965 31
5.6 Constitution of the United Republic of Tanzania
of 1977 33
6 Administration of justice as regards
constitutionalism in Tanzania: A glance 35
7 Constitution reform: Is there a choice not to change
the 1977 Grundnorm? 41
8 Features of an effectual and inclusive constitutional
reform process 42
iii
9 A new (legitimate) constitution in Tanzania:
A people’s appeal 44
10 The constitutional review Act 2011: A knock at
the door 47
11 Conclusion 51
3
From the ‘TPLF Constitution’ to the ‘Constitution
of the people of Ethiopia’: Constitutionalism and
proposals for constitutional reform
Adem Kassie Abebe
1 Introduction: The genesis of constitutionalisation
in Ethiopia 51
2 The making of the Federal Democratic Republic of
Ethiopia (FDRE) Constitution: Its inclusiveness
and some implications 54
3 Constitutionalism: Constitutional principles and
compliance 57
3.1 Decentralisation 58
3.2 Sovereignty of the nations, nationalities and
peoples (ethnic groups) 60
3.3 Human and democratic rights 62
3.4 Transparent and accountable government 67
3.5 Separation of state and religion 69
4 Major factors that have hampered constitutionalism
and constitutional development 70
4.1 Increasing authoritarianism and the party-state
conflation 71
4.2 Lack of independent and reliable constitutional
adjudication system 74
5 Proposals for a possible constitutional reform
agenda 79
5.1 Parliamentary versus presidential form of
government 80
5.2 The first-past-the-post electoral system 81
5.3 Term limits on the position of the Prime Minister 81
5.4 Changing the constitutional adjudication system 83
5.5 Public ownership of land 83
5.6 Abolishing or empowering the Office of the
President? 84
6 Concluding remarks 85
4
Constitution-making in Eritrea
Simon M Weldehaimanot
1 Introduction: Higher law and fine-tuning 89
2 Contestation in Eritrea: Amendment against new
constitution-making 91
3 Abrogation of the 1952 Constitution and the
notion of a higher law 94
3.1 The 1952 Constitution on amendments 94
3.2 Amendments sought and their legality 96
3.3 The federation: a delicate balance 100
3.4 Lack of arbiter in the constitutional design 102
4 The trashing of the 1997 Constitution 104
iv
4.1 The eagerness to write yet a new constitution 107
4.2 Transition and the permanent constitution under
the Accord 108
4.3 Distinction between adopting and amending a
constitution 109
4.4 Opposition politicians and living with an
independent judiciary 112
5 Conclusion 114
5
Constitutionalism and constitutional reforms in
Ghana
Kofi Quashigah
1 Introduction 115
2 The period between independence and the eve of
the 1992 Constitution 115
2.1 The search for an acceptable executive system 115
2.2 Protection of fundamental human rights and
freedoms 118
2.3 The 1969 constitutional period 121
2.4 The incidence of military coups d’etat 123
2.5 The 1979 Constitution 125
3 The 1992 Constitution 128
3.1 Supremacy of the Constitution 126
3.2 The guarantee of public elections 129
3.3 Human rights and fundamental freedoms 129
3.4 The judiciary under the 1992 Constitution 129
3.5 The legislature 130
4 Proposed reform of the 1992 Constitution 131
5 Conclusion 134
6
The dawn of constitutionalism in Nigeria
Diala Anthony Chima
1 Introduction 135
2 Constitution-making and review in Nigeria:
1960 – 1999 136
2.1 The 1960 Independence Constitution 137
2.2 The 1963 Republican Constitution 139
2.3 Military rule: 1966 – 1999 141
2.4 The 1979 Constitution 144
2.5 The 1999 Constitution 153
3 The legitimacy of the 1999 Constitution 157
4 Conclusion 160
7
A Federal Constitution devoid of constitutionalism:
The case of Cameroon
Chofor Che Christian Aimé
1 Introduction 163
2 The colonial history of Cameroon from
1884 to 1960 163
2.1 Introduction 163
2.2 Cameroon under German colonial rule 164
2.3 Cameroon under British and French colonial rule 165
v
2.4 The independence and reunification of
Cameroon 170
3 An analysis of constitutionalism under the 1961,
1972 and 1996 Constitutions of Cameroon 172
3.1 The 1961 Federal Constitution 172
3.2 The 1972 Constitution 178
3.3 The 1996 Constitution 182
4 Towards effecting constitutionalism in Cameroon 188
8
Pre-independence constitutions, participatory
constitution-making and constitutionalism in
Africa: The case of Botswana
Bonolo Ramadi Dinokopila
1 Introduction 191
2 The history and making of the Constitution
of Botswana 192
2.1 Constitutional review: The Lobatse conference 196
2.2 Second round of constitutional talks: The
London conference 199
2.3 Botswana’s 1966 Republican Constitution 202
3 Understanding Botswana’s constitution-making
process and its impact on constitutionalism 206
4 Post-independence: Calls for a constitutional
review take centre stage 212
5 Conclusion 215
9
Popular involvement and constitution-making:
The struggle towards constitutionalism in Malawi
Mwiza Jo Nkhata
1 Introductory remarks 219
2 Of constitutions and constitution-making 220
2.1 Making a ‘perfect’ constitution 222
3 The crafting of constitutions in Malawi 229
3.1 The 1964 Constitution 229
3.2 The 1966 Constitution 230
3.3 The 1994 Constitution 232
4 Popular involvement and constitution-making in
Malawi: Lessons from the Malawian experience 237
5 Constitution-making and constitutionalism in
Malawi 239
6 Final remarks 241
PART III: PERSPECTIVES ON DEMOCRATIC GOVERNANCE
10
Between presidentialism and a human rights
approach to constitutionalism: Twenty years of
practice and the dilemma of revising the
1990 Constitution of Benin
Horace Sègnonna Adjolohoun
1 Introduction 245
2 From constitutional instability to an African
Charter-based Constitution 247
vi
3 Main features of the 1990 Constitution 249
3.1 Fundamental principles of the Constitution 250
3.2 Fundamental rights’ protection in Benin’s
Constitution of 1990 252
4 Separation and distribution of powers 255
4.1 Strong presidential Executive: ‘Presidentialism’? 256
4.2 The Parliament 257
4.3 Judicial ‘power’ versus judicial ‘authority’ 261
5 Challenges brought by the Constitution in action 263
5.1 Blurring boundaries to separation of powers:
Executive’s supremacy 263
5.2 Development and interpretation of the
Constitution 270
6 Dilemmas of whether, when, what and how to
revise 280
6.1 ‘Do not touch my Constitution’: Opportunistic
or progressive revision? 280
6.2 Stronger Executive for socio-economic
development? Dilemmas of a revision 284
7 Conclusion 288
11
From military rule and no party state to
multi-partism in Uganda
Christopher Mbazira
1 Introduction 291
2 The history of political parties in Uganda 292
2.1 Pre-independent Uganda 292
3 The no-party movement state 295
4 Confronting the irresistible winds of change 300
4.1 Multi-party politics after the lifting of the ban 306
4.2 The lack of political will 306
5 Conclusion 313
12
Constitutional governance, democratisation and
military legacies in post-independence Nigeria
Dejo Olowu
1 Introduction 315
2 Nigeria: A panoramic overview 316
3 Governance, constitutionalism, and
democratisation: Reflections on the African
scenario 318
4 Nigeria’s evolutionary processes in constitutional
governance and democratisation: The military
dimension 322
5 Consolidating constitutional governance through the
democratic process in Nigeria: Facing the future 331
6 Conclusion 335
13
From military rule to constitutional government:
The case of Nigeria
Ademola Oluborode Jegede
1 Introduction 337
vii
2 Military rule in Nigeria: Heritage of stigmatised
features 339
2.1 Tainted separation of powers 339
2.2 Eroded devolution of powers 341
2.3 Poor human rights record 342
3 Constitutional culture post-1999: From stigmas to
what? 345
3.1 Separation of powers 346
3.2 Devolution of power 350
3.3 Human rights compliance 351
4 The future of constitutional government 353
BIBLIOGRAPHY 355
viii
FOREWORD AND DEDICATION
Adieu, Steve: Tribute to a scholar of African constitutionalism
This volume of essays on constitutionalism in Africa is devoted to the
memory of Steve Odero Ouma, who spent most of his professional life
working on these issues. He was a colleague and friend to many of the
contributors to this volume, and no doubt to many of its actual and
potential readers. Steve passed away on 23 February 2012.
Steve’s professional life
Steve Odero Ouma was born in Kenya and lived most of his life there.
Steve completed a Bachelor of Laws degree at the University of Nairobi in
Kenya, before enrolling for the LLM (Human Rights and Democratisation
in Africa), presented at the Centre for Human Rights at the University of
Pretoria, in 2005. His Master’s dissertation titled ‘Federalism as a peace-
making device in Sudan’s Interim National Constitution’. Steve graduated
from the programme in December 2005. As part of that year’s programme,
students undertook a field trip to Sierra Leone. I was fortunate enough to
accompany this group. On this trip, I got to know Steve as someone who
could be playful and mischievous but he was also extremely serious about
issues affecting our continent, and was an inquisitive, determined and
dedicated student. In 2011, the Centre for Human Rights invited Steve
back to Pretoria, to teach part of the ‘democratisation’ element of the LLM
programme. The very favourable student assessment (a score of 98% from
the class) is evidence of his knowledge of the field and his outstanding
qualities as a teacher.
After completing his LLM at the Centre, Steve was awarded a bursary
to undertake doctoral studies (in Political Theory) at the Luiss University
of Rome, in Italy. By focusing on the challenges to constitution-making in
Africa in his thesis (‘Constitutional mechanisms for the management and
settlement of identity conflict: The cases of Sudan, Kenya and Somalia’,
see website http://eprints.luiss.it/997/1/20110621-odero-ouma-tesi.pdf),
Steve was one of the alumni who took the ‘democratisation’ part of the
LLM programme to heart. Having completed his studies, Steve obtained
his LLD in 2011.
Steve also worked on several projects as a researcher, and taught at the
School of Law, Jomo Kenyatta University in Nairobi, Kenya; the Africa
Nazarene University, Kenya; and the University of Pretoria, South Africa.
At the Institute for Diplomacy and International Studies, University of
Nairobi, Dr Odero served as a PhD research associate where he worked on
the prospects of autonomy as an antidote for clanism in Somalia. At the
Amnesty International United Nations Office in New York, he conducted
research on the responsibility of United Nations peacekeepers for
allegations of violence and sexual exploitation of women and children. His
research interests included criminal law, post-colonial political
philosophy, international law and relations, conflict resolution, good
governance and democratisation in Africa, constitutional law and
anthropology. Steve was admitted as an advocate in Kenya in 2007.
ix
Steve’s publications
One way of paying tribute to Steve, and to remember him, is by listening
to his own words, as expressed in some of his publications. Steve’s voice
has a very distinct ring, because he was both a lawyer and political
scientist. Having been schooled in both international law and political
science, Steve was able to provide a distinct academic vantage point.
Positioned on the cusp of two separate disciplines, he was able to bring
particular and very valuable insights. In one of Steve’s contributions (a
chapter on the politics of international criminal justice and the
International Criminal Court’s arrest warrant for President Al Bashir,
contained in a collection of essays by alumni on criminal justice in Africa
(‘Politics of international criminal justice: The ICC’s arrest warrant for Al
Bashir and the African Union’s neo-colonial conspirator thesis’ in C
Murungu and J Biegon (eds) Prosecuting international crimes in Africa 145
(Pretoria: PULP, 2011) he identified his own particular contribution to the
debate exactly as a hybrid of law and politics (at 146):
The analysis is hybrid in nature, drawing from the disciplines of law and
political science, and is therefore a challenge to lawyers, calling on them to
unpack controversial factual issues and in so doing, add to their understanding
of the complex non-legal factors that are at play in international criminal
justice. Likewise, it is a challenge to political scientists to pay more attention to
legal phenomena that are often at play and likely to influence political
processes. It is only through a meeting of minds by scholars, practitioners and
policy makers from these two fields that sound judgments grounded in law and
political reality may be reached and successfully implemented.
Steve’s emphasis on the potential synergy and the added advantage of the
one discipline (law) to the other (politics), and the other way round, made
him a very strong proponent of a multi-disciplinary approach to the study
of conflicts in Africa, and their effects, including criminal prosecution and
their underlying causes.
Steve’s deep concern for the underlying causes of conflict in Africa
appears from his analysis in the article ‘Reflections on the causes of conflict
in Africa: ethnicity or failure of leadership’ ((2005) 13 International Law
Students Association Quarterly 25). As the title of his article suggests, he
investigated ethnicity and the failure of leadership as major root causes of
conflict. On the issue of ethnicity, he presented a nuanced view,
underlining the following: ‘Ethnicity on its own is not a negative concept.
Indeed the peculiar ways of dress, types of food and dance of a given group
of people are in themselves not destructive.’ However, he added the
following: ‘What is destructive is isolationist ethnicity carried out by those
in authority and has been the cause of civil strife that characterizes Africa
today.’ Underlining the importance of leadership, he continued in the
following way:
A leader is instrumental in creating the mood, ideals and general character
that prevails in his or her country at any given time. Where a leader not only
speaks of reconciliation and unity, but also practices the same, then such
practice spills over to the local populous and a mood of peace and sense of
unity take centre stage. Where a leader engages in ethnic politics either by
publicly denouncing an ethnic group or remaining silent upon such
denunciation or condoning the practice of the same in institutions, he only
creates an atmosphere of animosity between ethnic groups in his country and
suspicion.
x