State, society and economy: Perspectives on African Constitutions

by Professor Yash Ghai FBA

22 Sep 2015

Africa’s journey across constitutions is quite remarkable, several different constitutions (or types of constitutions) in such short period, whether effecting change or reflecting change? For long periods, Africans managed to govern their societies without complex rules. The demise of indigenous systems of governance began with the colonisation of Africa by the West, for the most part about a century and a half ago.  We cannot say that Africa’s encounter with what we might call “modern constitutions” started then. Having abolished the absolutist state in Europe in the eighteen and nineteen centuries, the colonists took it to Africa, and planted it there. In due course rudiments of a constitution (more like imperial regulations) were established, regulating principally the relations between European governments with their imperial staff in the colony. The scope of these “constitutions” was enlarged over time with increasing complexities of colonial rule, and as the charter (and mandates) of imperial companies gave way to direct state control. I say that they do not qualify as “modern constitutions” because they were instruments of coercion and exploitation, without a whiff of human or, what would have been even more significant, community rights.

The end of the Second World War signalled also the end of imperialism, starting first with Asia. The winds of change as Harold Macmillan called them, did not blow over Africa for another decade and a half. It was then that the authentic constitutions, recognisable to the western public,  became imperative. African independent states had to be democratic, with the full protection of human rights, governments to be elected every four or five years, in elections based on universal franchise. The Colonial Office, without the benefit of a domestic constitution, churned out numerous democratic constitutions, sometimes after lengthy conferences with local leaders.

For most African countries the independent constitution had a short life—in my country Kenya, precisely a year, the constitution that had been negotiated over endless meetings between the British and Kenyan parties, accommodating diverse and competing interests. The objective of most new, post-independence, constitutions was to strengthen the central government, at the expense of regional or local governments, and to vest most executive power in a president, shifting from a parliamentary to a presidential system. In its wake came authoritarianism, one party regime, and in some instances, military government. Surprisingly few protests came from the former colonial powers—because they needed, in the time of Cold War, allies against Russia.

The end of the Cold War brought as much concern and anguish to African dictators as to communists regimes in Europe. Constitutional reform with some supervision by the West became the new mantra—of the West. African governments were dragged, willy-nilly, to the restoration of democratic constitutions. Many are now trying to come to terms with the new emphasis on participatory democracy, human rights, social justice, and equality of individuals, gender and communities—while doing their best to sabotage the objectives and institutions of the new constitution.

In a short space of time, African states have experienced several different types of constitutions. So we ask ourselves, what is the significance of the constitution to them? It was obvious from the emergence of communist constitutions in Europe and Asia that constitutions mean different things to different states (or as the African experience shows, even within a state). How do we identify and explain the specificity of African constitutions, which follow broadly similar pattern through most of Africa? Whether democratic or authoritarian, they looked to Western models and experiences. If democratic constitutions thrived in Europe but cannot find roots in Africa, should we explain the African failure by analogies and comparisons with Western history and ideologies? Such as the homogeneity of the Western nation-state with the ethnic diversity of African states, the slow and gradual shift from absolutism to democracy, prompted by the rise of the market economy, in Europe, in contrast with the heady speed with which African social and economic structures have been changing, or forced into changes, from subsistence communal economies to forms of slavery and administered economies, all in the last 100 years, not home grown as in Europe, but the result of massive external intervention, or even, as was fashionable explanation in some circles not long ago, congenital differences between races?

A study of the history and fortunes of African constitutions may well have the potential to explain the growth and significance of constitutional ideas and practices, the impact of social and economic systems, the degree of autonomy from outside influences, and globalisation of economy as well as social values. Should we look for insights to Marx or Weber because, for better or worse, Africans cannot escape from the impact of vicissitudes of the Western states, and already it has been shaped in numerous ways by Western history and experiences, for better or for worse? May be the African experience can provide an answer to the perennial question: Is a Constitution basic to society and instrument of change or is it superstructure, reflecting rather than causing societal changes. My analysis of the history of African constitution is that it can be either, for it is a fact that the colonial constitution, with its massive reliance on brute force, established the basis of the African state which the more democratic constitutions have not been able to erase, so that now below the superstructure of these constitutions, the factor determining the lives and fortunes of the people is the violence of the state, as it also for the privileged position of politicians and their business friends.

Find out more about Constitutions in Africa: State, Society and Economy on Thursday 1 October here.

Yash Ghai is a constitutional lawyer who has taught constitutions for many years as well as assisted in the making of constitutions in a number of countries in Asia and Africa, including his own country, Kenya. He has taught in a number of universities including University of East Africa, Yale, Harvard, Warwick and Hong Kong University.  Retired now, he assists in the work of an NGO in Kenya which he co-established in 2011 (Katiba Institute) in order to facilitate the implementation of the 2010 constitution, often described as the world’s most transformative constitution.

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