By Siviwe Rikhotso
The history of constitutionalism dates back to the political theory of enlightenment propagated by scholars like John Locke and expressed in the United States’ Declaration of Independence of 1776 by its founding fathers. It is an important tool for functional governance in modern-day democracies. Constitutionalism, as a concept, supposes that the authority of the state or government should be limited to ensure the protection of citizens’ rights. It requires these limitations in order to provide checks and balances for the powers of the government and ensure that the rule of law is upheld.
Whether an idea that speaks to the separation of powers of the government or state, or a concept that speaks to the supremacy of the rule of law, constitutionalism is without a doubt one of the key aspects of the modern-day democratic state. This is not only in terms of governance but also in the sense that constitutionalism gives democracy legitimacy over its citizens and within the wider international community. Constitutionalism as a political tool must limit, or even eradicate, political tyrannies and erratic or unpredictable behaviour by the government, whether this relates to human rights violations, corruption, the changing of term limits when it suits the incumbent, or the suppression of political opposition.
To claim constitutionality, a state or government must be constitutional in character, which requires compliance with two legal requirements. Firstly, the government must act within the provisions of the constitution and secondly, the government should not go beyond the authority provisioned by the constitution. Considered to be one of the prerequisites for a functioning democracy, constitutionalism has become significant for most democracies globally, particularly to the extent that human rights, rule of law and the independence of democratic institutions are heavily emphasised by world leaders.
Every state seeks the status of constitutionality as it not only gives legitimacy to the ruling government but also facilitates bilateral and multilateral relations and trade opportunities. For example, the the United States (US) and the the United Kingdom have instituted and retained economic sanctions on Zimbabwe due to widespread human rights abuses by the government both under the previous Mugabe dictatorship, as well as the current Mnangagwa regime. Adherence to constitutionalism should be considered sacrosanct in that the respect for human rights is enshrined in every constitution within a democracy, and in the charters and constitutive acts of organisations such as the United Nations (UN), the European Union, and the African Union (AU).
In Africa, there are states who are genuinely constitutional in character and states who falsely claim constitutionality in name only. Analysts have warned that in recent years, the continent has become more inclined towards the latter. This inclination is due to “democratic backsliding” that has engulfed the continent, ranging from dictatorships, media censorship, political suppressions by incumbents, unconstitutional term limit changes, and lack of separation of powers between the executive, legislative and judiciary to gross human rights violations by incumbents, rigged elections, widespread bad governance and lack of political will. In addition, the continent is still battling with colonial legacies in that many African states (Mali, Chad, Namibia, Zimbabwe, Mauritius) have not changed their governance behaviour but merely adapted to their inherited oppressive and exploitative structures.
Constitutionalism and the African experience
Some two decades after the independence period of the 1960s, some African leaders were morally deficient as government structures only worked to suit their interests. This means that just like the colonial state, postcolonial states in Africa could not secure the rights and freedoms of their citizens. They could not guarantee justice and the rule of law.
Frankly, postcolonial leaders showed disdain for the rights of those who were not holders of political or economic power. African leaders were notorious for disregarding the constitution, which was not recognised as the rule of law that governs all, including presidents and other top-ranking government officials. This resulted in significant governance deficits, not only relating to graft by politicians and economic elites but also human rights violations, dictatorships, and severe food and human insecurity, which still plagues the continent today. More significantly, one of the core issues surrounding constitutionalism was the amendment to presidential term limits and the unconstitutional change of governments, whether it was through military coups, father-to-son successions or outgoing leaders’ refusal to vacate office despite having lost the elections.
Since independence, a common scene in the African political landscape has been that of global leaders, political commentators and African citizens expressing fear of a resurgence of dictatorships and authoritarianism. This is understandable given the common feature of strongman politics, presidents for life, and father-to-son succession regimes across the continent. It was only in the beginning of the 1990s (after the fall of communism in 1989) that the issues of good governance, development deficits, and a lack of compliance to democratic processes by African leaders and their countries were looked at with interest.
Led by the US – a newly crowned global hegemon and leader of the free world at the time – Western powers’ attention towards Africa was mainly focused on assisting governments on the continent address development and good governance deficits. The Bretton Woods institutions (the World Bank and the International Monetary Fund) took measures to curb graft and drive good governance. Two of the most significant of these included structural adjustment programmes and poverty reduction strategy papers. Intended to help foster development, these measures often ended up causing more harm than good as a large portion of the funds ended up in the hands of technocratic elites and authoritarian rulers and did not reach the grassroots level.
At the same time, Africa grew an appetite for active involvement in global affairs. Its leaders sought more representation at the former General Agreement on Tariffs and Trade, now the World Trade Organisation (WTO) forum, holding former colonial powers responsible for the residual crisis that confronted African states and the common citizen, and seeking African-led initiatives to the problems that ravaged the continent. The beginning of the 21st century saw the transformation of the Organisation of African Unity into the African Union, followed by the drafting of the AU Constitutive Act, the drafting the Sustainable Developmental Goals (SDGs), the formation of the New Partnership for Africa’s Development (Nepad) and the African Peer Review Mechanism. These achievements drew attention to Africa, and signalled a strong sense of African agency.
These milestones put Africa on a path towards the goal of a developed continent characterised by equality for all, respect for human rights, visible compliance to democratic processes and respect for the rule of law. However, the reality is that constitutionalism has decreased in Africa due to a resurgence of authoritarianism and dictatorships, and the enduring consequences of US policy towards Africa that prioritised aid and militarisation. As analysts have noted, some initiatives from the US were intended to enhance good governance and trade, but there were significant trade-offs. The violation of human rights by heads of states and entrenched dictatorships were overlooked in the name of trade and job creation (AGOA in Uganda), while the creation of AFRICOM and the US’ involvement in the fight against terrorism and extremism in Somalia has a “complex and problematic” record.
The current situation
While initiatives such as SDGs 2030 and Agenda 2063 have constitutionalism as core goals, the continent’s historical record shows that heads of state often backtrack on regional commitments and agencies set up to ensure the realisation of constitutionalism and democracy. For instance, a number of African leaders criticised Nepad when it turned its focus on their countries’ good governance deficits; the AU still ‘unofficially’ conforms to the principle of non-interference, even with the adoption of non-indifference; and regional bodies still look the other way when military coups are the main method of succession. This is cause for serious concern when one considers Africa’s ambitions and goals for the next five decades.
African leaders continue to amend the constitution when it suits them, and unconstitutional successions by means of military coups and father-to-son successions (in Chad, Togo, Gabon, the DRC, Mauritius) are still the order of the day. Suppression of political opposition and the media continues during election periods, gross human rights violations by the state are not declining, and a general lack of recognition for the supremacy of the constitution persists at the regional as well as continental level.
Following the exit of the Trump administration from the White House in January 2021, the US has re-embraced multilateralism. This has prompted fresh dialogue within academic and policy spaces of an African policy framework towards the US that would be actively structured by Africa and seek to benefit African citizens. Key questions include what issues Africa should engage the US on, who will play what role, and how will implementation be ensured should these engagements progress past the discussion phase. However, the power dynamic between the US and Africa is still skewed as despite continental efforts for greater African agency at multilateral level, the US has retained its dominance within the WTO, the UN General Assembly and the UN Security Council.
Constitutionalism is one of the good governance priorities that Africa needs to address as it is bound to come under the spotlight in Africa-US relations and future bilateral/multilateral agreements. While US President Joe Biden and his administration have not publicly stated concerns about the dilapidated state of constitutionalism in Africa, it is only a matter of time before it comes to the forefront of US-Africa relations.
Civil society in Africa has perhaps the most crucial role to play in ensuring that governments are constitutional in character and that the constitution undergoes the necessary reforms and amendments in the near future. Moreover, civil society may also play a role in ensuring that proposed and adopted amendments (provided these are for the good of the citizens) are implemented carefully and thoroughly at the state, regional and continental level. Realistically, that this will probably take more than a decade to achieve, but a little progress is better than no progress at all.
Constitutionality is currently in a comatose state in many African countries, and is in dire need of resuscitation for the good of the citizens, for good governance, and for the good of the continent. There is a palpable need for the public to regain trust in their political system, in their government and in the supremacy of the constitution. For this to happen, Africa’s heads of state need to demonstrate strong adherence to the constitution to restore trust in justice and the rule of law. Above all, they must prove their commitment to democracy.
As I have stated, constitutionalism is not a focal point of Africa-US relations now (economics and trade are the top priorities); however, it will warrant closer attention as the US and Africa look to cement relations. Biden indicated as such in his address at the 2021 AU Summit earlier this year, where he highlighted America’s commitment to building a strong US-Africa partnership for a “better future”. “A future committed to investing in our democratic institutions and promoting the human rights of all people, women and girls, LGBTQ individuals, people with disabilities, and people of every ethnic background, religion and heritage,” Biden said. – African Portal