There have been three generations of constitutions in Africa. Independence
constitutions were the first generation. With Ghana leading in 1957, most
African countries had shaken off the shackles of formal colonialism by early
1960s. The second generation of the constitutions emerged in the process of
post-colonial restructuring of power in three decades following independence.
The last ten years have witnessed the third generation of constitutions in the
context of post-Cold War re-organisation of global hegemonies called
Each generation of the constitutions has been marked by its processes of
constitution-making as well as rationalising discourses and legitimising
ideologies. The discourses may be broadly categorised as modernisation,
developmentalism and globalization while the corresponding political ideologies
may be summed up as nationalism, socialism and democratism, or some variant of
The categorisation is neither successive nor does it correspond strictly
to historical periodisation. In real historical and social space, ideas, and
periods overlap, interflow, and interact without sharp discontinuities.
Moreover, the dominance, prevalence and hegemony of any set of ideas - whether
explanatory (theory) or justificatory (ideology) - is not socially and
politically neutral, or self-evident. They are contested terrains reflecting, rationalising, reinforcing, and reproducing real life, and equally contesting,
social, political and economic forces, both national and international.
The contention and premise of this paper is that constitutions and
constitution-making processes are best explained and understood in the broad
historical and social context. In this paper I intend to apply that premise in
presenting an overview of constitutional developments in Africa, citing examples
mainly from sub-Saharan Africa.
The First Generation or Independence ConstitutionsThe independence movement was a coalition of inchoate social forces led
essentially by proto-middle classes. The objective was, to use Nkrumah's
picturesque phrase: "Seek thy the political kingdom, and the rest would be added
unto it." The commonality of purpose was the political kingdom while every group
in the coalition had its own conception of "the rest" to be sorted out after
The first-generation constitutions were a product of negotiated
independence (except the latecomers Lusophone countries which got their
independence through armed struggle) reflecting compromises and concessions
between the local contending forces and the departing colonial power (Hutchful
1991, Nolutshungu 1991, Mandaza 1991).
In this contest, the colonial power was no innocent broker as it made itself out
to be. While conceding formal political power, the imperial powers wanted to
ensure that their overall economic and strategic interests would not be
jeopardised. The result was liberal constitutions based on Westminster or
"Gaullist" models (Slinn 1991).
These constitutions were structured on the twin
pillars of limited government and individual rights on the one hand, and
multiparty electoral process, on the other (Shivji 1991). Britain, which has
never had a bill of rights or separation of powers herself, included such a bill
in the independence constitutions with very few exceptions (for example,
Tanzania, then Tanganyika).
The central right in the bill of rights was of
course the right to private property which, the colonial power hoped, would
entrench the vested interests of immigrant settler communities and, in some
cases, indigenous propertied (mainly agrarian) classes that the colonial power
had tried to create on the eve of independence (for example, in Kenya) (Legal
Aid Committee 1985, 11-16).
As has been observed often by African scholars, the colonial legal order
inherited by the independence regimes was fundamentally despotic (Ghai 1972,
Okoth-Ogendo 1991). It was marked by absence of fundamental rights, an
ethnically based judicial system, wide discretionary powers of the Executive and
virtual absence of judicial review. The liberal independence constitution was
therefore an anachronistic superstructure foisted on a despotic foundation. As
we shall see in the next section, the foundation endured while the
superstructure foundered in the post-independence period.
For the nationalist elites, just as for their followers, the immediate interest
in the constitution lay in the transfer of power, not in the niceties of
constitutional principles or liberal rules of the organisation of state power.
Constitutions therefore were perceived as documents embodying independence and
constituting state sovereignty and respectability in the international arena (Okoth-Ogendo
op.cit.) rather than documents embodying national consensus.
The result was that in the very making of independence constitutions, the issues
of participation of the people, the constitution as a terrain of legitimacy or a
legal constraint on the exercise of power were at best subordinate, and at
worst, non-existent so far as the nationalist elites were concerned. For that
matter, by definition, it mattered little to the colonial power whether the
independence constitutions had popular legitimacy.
What was important to
their interests was to leave power to those elites that it perceived to be
relatively moderate and who would not rock the boat. Thus the so-called
"modern", liberal constitutions bequeathed to the independent states were not an
exemplar for the African elites. Rather it was the despotic legal order left
behind by the imperial powers that had an enduring impact. The African ruling
elites learnt the colonial lessons too well, as the next section will
The Second Generation or post-colonial ConstitutionsIndependent African states were born in the world of intense rivalry between the
then super powers. Internationally, they immediately became a pawn on the Cold
War chessboard. Internally, in most African countries the local middle classes
were underdeveloped, heavily dependent on international capital and in a hurry
to accumulate (Fanon 1967). It has been argued that such a social canvass was
ill suited for a liberal constitutional order based on Weberian rational-legal
premises (Ghai 1991).
Modernisation theories in political science and
'law-and-development' paradigms predicated on Pound's philosophy of 'social
engineering' were the dominant intellectual currents, particularly in the
English speaking countries (Ghai 1987, Tenga 1986, Nyong'o 1998, 55-58).
advocates of these currents argued that the governing elites - whether civilian
or military- had the task of dragging their societies out of parochial tribalism
to the universalism of modern nations and find a place for their countries on
the international capitalist market. Parsonian typologies and American
behavioural sciences were the dominant modes of intellectual analysis (Nyong'o
The domestic counter-part of modernisation theories were various nation-building
(Wamba 1991) and developmentalist ideologies (Shivji 1986) in which the central
agency of social change was the state. The instrumentalist law and the
developmentalist state became the norm. That norm was embodied in authoritarian
party-state constitutions or, as was the case more often, in military states
with little regard to constitutionalism.
Either way, constitutional legality and
legitimacy played little role in the structuring and exercise of public (state)
power. This is not to say that African countries did not have documents called
'constitutions'. They did, even military regimes. Constitutions were used to civlianise military regimes and attain some modicum of international
respectability. This is the conundrum of constitutions without constitutionalism
that Okoth-Ogendo speaks of (op.cit.).
Authoritarian constitutions which was the dominant feature of many African
states during this period shared certain basic features which may be summarised
Justifying to his Western audience the enormous powers vested in the Executive
under him in the 1962 Republican Constitution of Tanzania, Nyerere, one of the
more articulate African leaders, put it thus in a letter to the London Observer:
- They adopted presidential systems where the president was typically the
head of state, the head of the Executive, commander in chief of the army,
appointing authority of many state and parastatal bodies and part of the legislative
process. In short, the presidency was vested with virtually unlimited powers.
This type of presidency has been described by African scholars as 'imperial
presidency.' (Okoth-Ogendo op. cit.) Nyerere's (who ruled Tanzania for quarter
of a century) quip that the constitution gave him sufficient powers to be a
dictator (quoted in Mwakyembe 1986, 45) or Slinn's extension of Kaunda's slogan
"One Zambia, One Nation" into "One Zambia, One Party, One Nation, One Leader"
accurately portrays the real constitutional and political order.
- The political system was predicated on de jure (Malawi, Tanzania, Zambia) or
de facto (Kenya until 1982, Senegal, Ivory Coast) one party where the party, if
functional at all, was supreme. The institutions and the leadership of the party
and the state were merged or virtually identical thus creating the now infamous
party-states. In this, the legislative and judicial arms of the state were
- Civil society organisations, both traditional like trade unions. and new ones
like NGOs, were either proscribed or statised.
- The legislature had very little substantive law-making power and
oversight functions; much less, prestige in the eyes of the rulers or the
people. In many cases, the presidency overshadowed the parliament.
- Executive powers tended to be couched in wide discretionary terms with
little possibility of judicial challenge.
- Judicial review was either absent or the judiciary tended to be too
executive minded for it to be effective.
- Most African constitutions included fundamental rights, yet they meant
little in practice. Violations of human rights were massive, often
perpetrated by regimes and with instruments and arms supplied by the Western
and Eastern imperial backers of authoritarian regimes (Chomsky & Herman
- There was concentration and centralisation of power, both institutionally and
personally, in the executive arm and coercive forces of the state.
- In sum, political legitimacy, if at all, was constructed on different
ideological (authenticity, humanism, socialism, developmentalism etc.) and
institutional (party, presidency, military) terrains rather than
constitutionalism. Coercion was apparent on the surface of law. Law ruled but
the rule of law was absent. The state coerced obedience rather than mobilise
consensus (Thomas 1984, Shivji 1989a and 1991a).
Our constitution differs from the American system in that it … enables the
executive to function without being checked at every turn … . Our need is not
for brakes to social change … - our lack of trained manpower and capital
resources, and even our climate, act too effectively already. We need
accelerators powerful enough to overcome the inertia bred by poverty, and the
resistances which are inherent in all societies (quoted in Mwaikusa 1995, 105).
As we observed before, the constitutional and legal order that emerged in the
post-independence era was modelled on, and a replica of, the despotic colonial
legal order invented and perfected by Western imperial powers. Its
reinforcement after independence through various so-called developmental laws
was rationalised and justified in no small measure by modernisation and social
engineering theories of the Western academia.
The statism and fundamentally
anti-democratic and anti-people developmentalism of the African regimes, which
formed the bedrock of non-liberal constitutional order, continued to derive
support and sustenance largely from Western imperial powers and its
international financial institutions. Even radical nationalist regimes (for
example, Patrice Lumumba's or Kwame Nkrumah's ) were not tolerated and
overthrown by CIA-engineered coups (Blum 1986, 223, 292).
Although it is common
these days to identify Africa's party-states and constitutional orders with the
former Soviet and Eastern European systems, very few African states, if any,
directly borrowed from the constitutional and legal systems of the then Soviet
Union. The de jure or de facto party-state constitutions of Kenya, Malawi,
Senegal, Tanzania, Uganda or Zaire, to name a few, had little to do with the
Soviet system. In fact, all of them listed here acted as proteges of Western
imperialism, varying only in the degree of their subordination.
Post-Independence Constitution-MakingThe rush from the liberal independence constitutions to various forms of
authoritarian constitutions was accomplished by various methods of
constitution-making. For our purpose, three methods may be identified. First, in
a number of countries, the pre-existing national assemblies, usually constituted
under the independence constitutions and therefore by the imperial legislature,
transformed themselves into constituent assemblies to enact new constitutions.
This was done in Ghana and Tanganyika when they made their transition from the
monarchical to republican constitutions (Bennion 1962, ch. 2, MacAuslan
1964). This method was again used by Obote to enact Uganda's 1967
Constitution after he had made a "palace coup" overthrowing the independence
constitutional order (Mukholi 1995, 16-18).
The second method was through amendment of the existing constitution. Most
African constitutions were rigid requiring specified majorities to enact
amendments. In practice, this did not present any obstacle since the parliaments
were packed with the president's men and the members of the ruling party.
there was any formidable presence of the opposition in parliament, it was either
harassed and hounded out of existence or its leaders were accommodated within
the ruling party clearing the way for amendments as happened in Kenya (Kenya
Human Rights Commission 1998, 124 et. seq.; see also Mwakyembe on Tanzania op.
The power to amend the constitution was even used to enact a totally new
constitution as happened in the case of Tanzania's 1965 One-party Constitution
or Zambia's 1973 Constitution (for constitutional developments in Tanzania see Shivji 1998, 29; for Zambia see Chongwe 1998).
The third method, perhaps the most common in Africa, during this period was the
overthrow of the existing constitutional order by the military and eventual
promulgation of a new constitution by a military decree. Between January 1956
and end of 1985 there were sixty successful coups in Africa, that is, an average
of two every year (Hutchful 1991, 183). In 1966 alone there were eight military
coup d'etat and by 1986 out of some 50 African states, only 18 were under
civilian rule (Nyong'o op.cit. 78).
American political scientists who had been analysing the "central" role of political parties in independent states, now
without much compunction turned their attention to the modernising role of the
military elites (ibid.) Men in uniform took off their uniforms after a while and
issued new one-party constitutions, which varied from liberal to authoritarian,
prescriptive to programmatic, invariably presidentialist, under different
ideological labels including marxist-leninist.
Whatever the labels and nature of
the constitutions, the politics remained firmly authoritarian and power was
heavily concentrated, whereas popular participation was perfunctory. What was
common to most of these constitutional experiments, though, was that most
military regimes were underwritten by their foreign backers, most often than
not, Western imperial powers.  Thus constitutionalism made little headway in
civilian, military or civilianised military states.
A few civilian states were
de jure single party (Tanzania and Zambia) or de facto one party like Ivory
Coast or Senegal respectively under Houphouet Boigny and Senghor (Barry 1991,
Diabete 1991). These too could not be described as liberal. Smaller states like
Botswana and Gambia which were often held up as examples of multi-party liberal
states were exceptions, although even Gambia did not remain such an exception
for long and Botswana's special relationship with South African capital and
relative wealth perhaps contributed to the formal functioning of its liberal,
democratic institutions (Molokomme 1991.)
The function and role of the
constitutions in this case was then to civilianise military or rationalise
authoritarian regimes and attain a modicum of international respectability
rather than usher in any participatory constitutional processes.
All in all, the experience of constitution-making during the post-independence
period could not be described as democratic, participatory, sustainable or
promising. As a matter of fact, by the end of 1980s, the constitutional,
political and economic picture of sub-Saharan Africa was bleak. Africa was
certainly neither on the track of sustainable development, democratic polity or
meaningful independence from imperial powers.
Meanwhile, the large majority of
its people were suffering from intense poverty, lack of education, health,
water, and sanitation. The debt burden of sub-Saharan Africa had increased over
twenty-eight times between 1970 and 1991 rising from US $7.0 billion in 1970 to
US $196 billion in 1991 (Toussaint 1999, 195- Table 14.2). 'Every year,
sub-Saharan Africa spends four times more on debt-servicing payments than it
does on healthcare and education combined.' (ibid., 195). 220 million people in
sub-Saharan Africa, that is 40 per cent of the population, live below absolute
poverty which means less than US $1 a day (ibid. 194).
Thus when the IMF, the World Bank and the so-called "international community"
(an euphemism for US led imperial block) came with their structural adjustment
programmes in the early eighties, and their political conditionalities in the
late 1980s and 1990s, Africa was on its knees. The state sovereignty that it had
attained in 1960 was very quickly, all but eroded as its governments and people
lost the right to make their own policy and political decisions.
The workers of
Tanzania summed it up well when they said, "In the 1960s, the rulers were eating
the fruits of independence; now that the fruits are finished, they are
squandering independence itself". Nyerere dubbed the IMF, the International
Ministry of Finance, which it truly is. So while internationally the sovereignty
of the African states had been severely compromised, nationally their legitimacy
was at stake. This was then the context and the background to the so-called
"democratic revival" and constitutional upheavals of the 1990s, which is
The Third Generation or Rights-based ConstitutionsThe disintegration of the Soviet empire and the rapid dismantling of state
socialism in Eastern Europe were no doubt great turning points with massive
global impact. Given the weakness and extreme dependency of the African states
and ruling classes, Africa was most vulnerable to the forces unleashed by the
reorganisation of world hegemonies and the onslaught of global multi-national
capital or globalisation.
The relatively independent ideological and policy
niche, albeit minuscule, that some African rulers (for example, a Nyerere or a
Kaunda) had managed to carve out by exploiting Cold War rivalries, was no longer
available. On the other hand, client states that had managed to remain in power
against their own people by dint of coercive apparatuses, felt immediately
threatened as their patrons disowned them.
The French President formally
announced at the Franco-African summit held in June 1990 that henceforth
democracy would be a condition for "cordial relations" which left
military-authoritarian regimes unprotected. Belgium withdrew its support from
Zaire's Mobutu in 1990 following massacre of students at Lubumbashi university
campus (Reyntjens 1991, 44-45) and, most probably, the United State covertly
aided its "new breed" leaders, Museveni and Kagame, to mount the invasion and
The IMF, the World Bank and the so-called "donor community" also became bolder
in attaching explicit political conditionalities - multi-party,
constitutionalism, human rights, good governance (in that order?) to their aid
packages (ibid.). There were other ideological and political motivations on the
part of international imperial forces to mount a democracy crusade.
During the Cold War era, Western liberal ideologies had come under severe attack
and denounced as imperialist, neo-colonialist etc. At least ideologically,
imperialism was on the retreat and the word itself had become shameful. The end
of Cold War presented an excellent opportunity to recoup the losses, morally
rehabilitate imperialism (Furedi 1994, ch.6) and teach a lesson to irritating
nationalist rulers never to raise their heads again.
Furthermore, the increasing
thrust of IMF/World Bank/donor-driven economic policies of marketisation,
liberalisation and privatisation in the interest of multinational corporations
was having devastating effects on the large majority of people.
Opening up of
the market and dismantling of the public sector is resulting in unemployment
through redundancy and de-industrialisation; privatising and commoditising land
is resulting in displacement and landlessness; unregulated mining activities in
the name of foreign investment is destroying the environment; withdrawing of
subsidies from education, health and water is causing many to go without these
basic needs resulting in further poverty, malnutrition, rise in illiteracy and
infant mortality (Tandon 1999, Pilger 1998). Such policies could not possibly be
enforced by totally discredited governments or through naked repression and
To promote such policies and provide protection to foreign capital
under globalisation, the regimes needed some fig-leaf of legitimacy and
ideological rhetoric such as political freedom, 'free and fair elections',
democracy, human rights, good governance, poverty alleviation, global
neighbourhood, etc. As one celebrator of globalization rationalises it,
Without political freedom there is no game based on economic liberalization - at
heart it involves free movement of capital, free exchange of ideas, aggressive
enterpreneurship, and capital flowing to its best use. Countries that think
they're going to manage themselves into this new economy will not fare well.
(Means in Economic Reform Today 1, 2000, 58)
The change in the international context was not the only source of so-called
democratic revival. The repression, grinding poverty, mismanagement and economic
ruin perpetrated by many African regimes had generated internal resistance and
the struggle for democracy.1 The struggle for democracy in Africa did not begin
with the fall of Berlin Wall. It long preceded it but was heavily repressed and
subdued with the assistance of precisely those imperial powers which became the
champions of democracy in later years.
The change in the balance of international forces, though, had contradictory
effect on the internal democratic forces. On the one hand, it encouraged these
forces and made success possible. On the other hand, with the wisdom of
hindsight, it can also be said that the foreign propelled conversion to
multiparty perhaps cut short the maturing of internal democratic forces, thereby
ushering in superficial changes and postponing the struggle for substantive
democratic changes, transformation of politics and the reconstituting of the
state beyond multipartyism.
This may partly explain the relative weakness of the
democratic changes that took place in the early 1990s and even reversal of some
of the gains made then. We now turn to discuss these and, in particular, the
constitution-making processes which gave birth to the neo-liberal third
Constitution-making in the Post-Cold War Period: The Debate
The change from one-party civilian or military to multiparty states produced
some of the most liberal constitutions in Africa (for example, Uganda, Malawi,
Namibia) embodying fundamental rights, separation of powers, independence of the
judiciary and the government's accountability to parliament. In most
English-speaking countries, the presidential system has been retained while in
Francophone countries the Executive is bicephalous with figure-head president
and the prime minister as the head of the government (Reyntjens op. cit. 51).
The traditional division between socio-economic and civil-political rights has
found expression in a number of constitutions in the non-justiciable
'fundamental or directive principles of state policy' and justiciable 'basic or
fundamental rights (for example, Tanzania 1977, Namibia 1990, Uganda 1995.) (for
a critique of these traditional divisions see Shivji 1989b).
This division was
originally adopted in the Irish Constitution of 1937, borrowed by India in its
independence Constitution of 1950, and thence found its way to Africa via
Nigeria (Shivji 1999). The jurisprudence of the relationship between these two
sets is fairly developed in India and it has to be yet fully teased out in
Africa (see, for instance, Minerva Mills v. Union of India AIR, 1980 SC 1789).
Whether constitutionalising and justiciability of socio-economic rights would
make a difference in the practical observation of fundamental rights relating to
basic needs raises a host of questions which can only be discussed in the larger
picture of Africa's political economy (for a brief comment see infra.).
It is not the contents of the new neo-liberal constitutions which has been the
most exciting experience in Africa; rather it is the processes of
constitution-making which has generated productive and innovative methods as
well as debates on modes of constitution-making. Three modes are identified: (i)
amendment of existing constitutions, (ii) constitutional commissions and
constituent assembly, and (iii) national (sovereign) conferences/conventions.
Each one of these is discussed in turn.
In a number of countries, the one-party system was de facto rather than de jure
(Ivory Coast, Senegal, Gabon.) In these countries, it did not require
constitutional reform to go multiparty. For instance, when Houphouet-Boigny was
faced with violent protests and his traditional friend France refused to assist,
he legalised multiparty.
Elsewhere multiparty was effected by amending the
constitutions and removing the clauses, which declared the system as single
party (Kenya, Tanzania). In each of these countries, depending on the balance of
forces, such changes were preceded and or followed by public debates.
In Tanzania, the decision to go multiparty was preceded by the appointment of a
commission under the country's chief justice whose remit was to consult a wide
cross-section of the people on whether or not they wanted multi-party. Their
ultimate recommendation that the country should go multiparty did not come as a
surprise, as it was expected. It was also expected that the ruling party would
endorse the recommendation.
What was most interesting though was the debate that
the consultation generated and the utter dissatisfaction of the large majority
of the people - particularly in rural areas - with the existing economic and
political system, although 80 per cent of the commission's sample wanted the
single party system to continue.
In Kenya the constitutional change was simply done by the existing party
dominated parliament yet, given the relative strength of civil society, the
debate on constitutional reform has persisted (Mutunga 1999).
The second mode was the appointment of a constitutional commission followed by
the election of constituent assembly specifically to adopt and enact the new
constitution (for example, Uganda, Malawi) (for Uganda see Mukholi op. cit., for
Malawi see Kanyongolo 1998). In East Africa this was undoubtedly a novel method.
As observed earlier, the tradition in East Africa had been to transform the
existing national assembly into constituent assembly.
This reduced the
legitimacy of the constitution considerably since the constitution was not based
on the consensus of the wide spectrum of people, rather it was the product of
the ruling party dominant in the national assembly.
As a matter of fact, even in Uganda it had been suggested that the existing
legislature (National Resistance Council) put in place by the National
Resistance Army, which had overthrown the previous regime by force of arms,
should be converted to a constituent assembly. President Museveni
specifically rejected this.
The result was the appointment of a Constitutional
Commission which engaged in a wide-ranging consultation process over a period of
four years before it produced a report and the draft of the new constitution
(Uganda, Report of the Constitutional Commission, 1993). The draft was then
presented to a constituent assembly composed of the majority of delegates
elected directly by the people on the basis of universal suffrage (Mukholi op.
cit. 93 et.seq.).
The third method was the most innovative and perhaps specifically an African
invention of the mode of constitutional-making. This was the National Sovereign
Conference. The national conference was literally born in the streets as a
culmination of street protests and demonstrations. It was forced upon the ruling
parties and Presidents.
The forerunner in this regard was Benin. The declaration
of the national conference as sovereign with powers to appoint constitutional
commission followed by the enactment of the new constitution was undoubtedly an
extra-legal (even an illegal) process (Reyntjens op. cit., Nwokedi 1999, ch.
14). The accent here was on the legitimacy of the process, not on its legality.
Benin had a domino effect in West Africa. The method, with variations and varied
degrees of success, was repeated in Mali, Niger, Gabon and Togo (see generally
Olowu et. al. 1999) and was embarked upon in Zaire but aborted. Interestingly,
while it was taken up for debate by the civil society in the Anglophone
countries, nowhere it was accepted by the state or the ruling party.
that a civil society in East Africa has come to replicate the Benin method is in
Kenya where the issue of constitutional reform remains unresolved (see Mutunga
1999, and generally Kibwana 1998). When the multiparty debate had just begun in
Tanzania, in 1990 this author suggested a combination of method including the
national conference but the suggestion was dismissed out of hand (Shivji
1991b). However, the demand for a new constitution adopted by a national
conference has continued to resurface constantly in the democracy debate in
Constitutionalism ten years later: The Debacle?
The results of constitutional reforms leading to liberal constitutions and
multiparty polity in the early 1990s have been extremely mixed, but by and
large, disappointing. On the positive side, three points may be made. First, the
constitution-making of the post-Cold War period was considerably participatory,
whether this was in the form of the consultation process under the
constitutional commission or participation in a national conference.
At the same
time, the participation was limited to urban intelligentsia and middle classes.
The process either passed by the rural folks or they had little interest in,
what was essentially, a liberal middle class social project.
Secondly, the most important gain of the "opening up" was in the freedom of the
media. In a number of countries, the former monolithic state controlled media -
particularly the print media - had to give way to a proliferation of private
media. There has therefore been some critical reporting and debate in the media.
The newly found freedom, however, is tenuous as foreign media houses take-over
This is most marked in the electronic media which are dominated by globalisation propaganda and irrelevant market consumerism of the West. As the
former President of Tanzania, Julius Nyerere, sardonically suggested that the
people of his country should be allowed to take part in the American
Presidential elections because they are bombarded with as much information about
the candidates as Americans are (cited in Pilger 1998, 531).
Thirdly, the opening up of the political space, besides resulting in the
mushrooming of political parties, has also given birth to the proliferation of
many non-governmental organisations (NGOs). There are no doubt a few serious and
relevant NGOs but a large number of them have little autonomy or independent
agenda relevant to the large majority of disadvantaged groups. Virtually all of
them are donor-dependent and donor driven. Invariably therefore they fail to
answer the real needs of the people they purport to serve.
Ironically the growth in NGOs has tended to marginalise traditional constituency
based organisations like trade unions, co-operatives or peasant associations. On
the whole, the impact of NGOs on major policy questions and direction of the
development of society is very limited.
It is perhaps too early to make a final assessment of the constitutional reforms
leading to multipartyism. However, the experience in a large number of countries
shows that the donor supported liberal democracy is centrally predicated on
multipartyism which fails to address the hopes, fears and real life conditions
of the large majority of the people. In most countries there have been elections
The elections have been marred by violence, rigging,
corruption and ideologies of religion and ethnicism. In a few countries, there
has been relatively peaceful transition from the incumbent ruling parties to the
opposition (Zambia, Senegal, Malawi) while in others the former parties have
The opposition parties in power have not on the whole shown
greater respect for liberal values of constitutionalism, rule of law and freedom
of expression, association etc. than their predecessors. Much less have they
cared or managed to address the fundamental issues of development and poverty
which affect Africa. Generally, therefore, the euphoria of multipartyism is
waning rapidly. Cynicism seems to prevail over hope and vision. The promise of
democracy has so far proved to be illusory, although the rhetoric continues.
The post-Cold War period has witnessed far greater instability, including resort
to wars and violence, then previously. We have seen disintegration of states in
Somalia, Liberia and Serria Leone. A regional war is raging in Central Africa
while another is threatening in West Africa. Western arms merchants - often with
the tacit support of their states - have been doing lucrative business while all
the standard indicators of human development have been sliding down.
the circumstances, the prospect of constitutional reforms towards freer and
consensual constitutional orders cannot be assessed without locating it on the
larger social and economic canvas. It is beyond the scope of this paper to do
this in any great detail. However, as has been indicated in this paper, the
process of political reform in the wake of the end of Cold War has been
profoundly contradictory and this may partly explain its severe limitations. I
sum this up briefly in the next concluding section.
Conclusion: The Pitfalls of Liberal Reforms
Firstly, there is an irreconcilable contradiction between the rhetoric of
constitutionalism based on open, transparent, accountable and legitimate
government responsible to its own people, on the one hand, and the economic
reforms based on marketisation, privatisation and withdrawal of the state from
the economic sphere exposing weak African economies to extreme forms of plunder
of resources and pauperisation of its people, on the other.
policies embodied in WTO and dictated by IFIs in favour of ruthless
multinational capital in which the African government has virtually no say has
all but undermined state sovereignty and autonomy. The governments have lost any
role in determining broad policies and direction of their economy.
legislation are imposed and dictated upon by the so-called donor community. As Pilger puts it, 'It [is] the surrender of sovereignty, and without a gunboat in
sight.' (op. cit. 63) Under the circumstances, there is no way the state can be
either democratic or responsible to its people when it is not the ultimate
decision-maker. The desperate lament of the Ugandan Minister of Finance at a
conference on Multilateral Agreement on Investment (MAI) sums up the utter
helplessness of African governments:
We were told if we had democracy, we would get funds. We had democracy, but no
funds came. We were told that if we had structural adjustments, foreign direct
investment would come. We had Structural Adjustment Programmes, but no funds
came. We were told if we had trade liberalisation and privatisation, investment
would come, but none came. Now we are told we will get funds if there is a
Multilateral Investment Agreement. You are trying to cheat Africa. (quoted in
Pilger ibid. 74)
Secondly, as a direct result of liberalisation and privatisation policies, the
African society has undergone intense stratification with a small local middle
class enriching itself while the large majority further sinking into abysmal
poverty and marginalisation. Two-thirds of the African people subsist at or
below the absolute poverty line, half of them have no access to health and safe
water, over 40 per cent are illiterate while enrolment ratios in schools at all
levels are falling (United Nations, African Recovery 1997, 25).
The social base
of support for these policies is extremely narrow. The result is that African
rulers are finding it extremely difficult to construct a national consensus
across a deep social divide and are increasingly resorting to coercion thus
undermining the very basis of a constitutional order based on consensus.
Thirdly, in the social economic circumstances already discussed, liberal
democracy and constitutional orders based on it are fragile and unsustainable.
Elsewhere I have suggested that Africa needs to construct a political and
constitutional order based on alternative forms of state and democracy based on
popular livelihoods, popular participation and popular power (Shivji 2000a,
2000b). Such a polity stands in sharp opposition to the economic and political
diktat of world hegemonic powers, or, globalizers.
Harping on liberal constitutional orders without addressing the larger issues
thrown up by real life conditions of the large majority is a convenient alibi
for mainstream Western human rights crusaders and a smokescreen for the
irresponsibility of world powers and their client states but hardly addresses
the real issues of the day.
What is fundamentally on the African agenda therefore is an alternative form of
democracy, which will help to reconstruct the African state and society and
place it on a trajectory of sustained autonomous development in the interest of
its people. Needless to say that such an agenda cannot be constructed as a
blueprint, or in a conference, but has to develop from the actually existing
struggles of the people in each country. On a more general level, one can only
assert that the African people are facing a double struggle for national
liberation and social emancipation.
There is little doubt that the post-cold war onslaught of imperialism has
affected African countries and peoples far more than say Asian, or even Latin
American, countries. Yet, for various reasons, Africa has presented least
resistance to imperialism euphemistically called globalisation. At the same
time, the continent remains one of the richest whose resources are up for grabs.
Hitherto, whether through slavery or colonialism, it is the cheap labour and
over-land resources of traditional kind (that is agricultural) which were
exploited by international multinational capital. Now increasingly, in the era
of cybernetics, it is the intense exploitation of underground and undersea
resources on the one hand, and biological resources on the other, which are
Thus imperial powers and their multinational corporations are
ferociously trying to establish their political hegemony (privatisation;
so-called private/public partnership; faceless, nameless, and unsegregated
stakeholder co-operation; etc.) and economic ownership (TRIPs, TRIMs, etc.) of
the bio-resources of the African continent. The WTO's agenda is as clear as can
be in this regard. And Africa appears defenceless compared to, say, Asia, which
has put up stiff resistance to this hegemonic onslaught.
It must also be remembered that the centre of gravity of world hegemony is
moving to the East (China?), however strong and omnipotent the US may appear in
the short run. Under the circumstances, the US particularly is making concerted
efforts to create Africa as its backyard in which it can be certain of the
source of natural and other strategic resources (for example, oil). This is the
scenario, which can be best summed-up in Mwalimu's phrase, 'the Latin
Americanisation of Africa'. The unusual attention paid to Tanzania by the US in
recent years is therefore not a co-incidence.
It is on the backdrop of this world regional scenario that African progressive
forces have to reassess their polities including their constitutional orders.
Again, it is not possible, nay, presumptuous, to distil any one blueprint of a
good constitution or principles of constitutionalism. What one can say, though,
is that the only way African people can resist and overcome the imperial
onslaught is to create enabling political conditions so that people fully
participate in and run their politics.
The only way to control one's economy is
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Written By: Noor Jahan Yosofzai
- Independence constitutions were handed down as schedules to the
Independence Acts passed by the colonial power's legislature.
- There were of course counter-currents based on theories of
underdevelopment and dependency.
- For a detailed discussion of how the state and political power were
structured during colonialism see Mamdani 1996.
- Soviet oriented countries like Somalia, Ethiopia, Angola and Mozambique
did not remain within that sphere for very long.
- Even Guinea whose independence was not negotiated but won from France
used its pre-existing national assembly to adopt a new constitution (Nwabueze
- Britain/Israel and France respectively supported the ruthless regime of
Idi Amin Dada in Uganda and Emperor Bokassa in Central African Republic. And
the US support of the plundering Mobutu regime for over thirty years is
legendary (Avirgan & Honey 1983).
1 See generally Nyong'o 1987.
- The US's role in subverting nationalist regimes is well known and
documented (see Blum 1986).
- As a matter of fact legally NRC already had power to convert itself to a
constituent assembly by virtue of paragraph 14B of Legal Notice No. 1 of
- I suggested a protracted process of constitution-making so as to create
a national consensus. First there would be an extra-legal political national
conference in which different interests in society would be represented. Its
function would be to crystallise a national consensus on basic principles
and structure, which would then be translated into a draft constitution by
experts. The draft would be presented for deliberation to a constituent
assembly elected on basis of universal suffrage. The constituent assembly
would only adopt the constitution, not enact it. The constitution would be
enacted by the 'yes' vote of the people in a referendum. Thus, legally,
there would be a distinct break with the past and politically the
constitution would have legitimacy.
- See, for instance, the recent debates in Malawi, Namibia and Zambia
where the incumbent Presidents want to hang on to power by extending
- Between 1990 and `1999 US sold arms to Africa worth over $564 million
(Federation of American Scientists Website).
- Even relatively peaceful countries like Tanzania And Ivory Coast have
not been spared of state generated violence during elections.