While states like Ghana, Benin, Mali, and Senegal have continued to build incrementally on the initial democratic openings, others have stagnated, and still others have regressed toward authoritarian rule or remained holdouts resisting reform. This uneven record, as well as postcolonial Africa's long-standing tradition of constitutions without constitutionalism, has prompted skeptics to query whether talk of a constitutionalism revival is warranted.
Postcolonial Africa's early false start and its past failure to nurture a culture of constitutionalism indeed cast a pessimistic shadow on contemporary efforts. Still, there are grounds to distinguish the current climate and developments from those of the past. Unlike the three decades before , the global political and intellectual discourse has shifted perceptibly against authoritarian and statist models of political and economic governance.
In the African context, specifically, the influence of the new institutional economics has moved problems of governance, the rule of law, peace and security, bureaucratic corruption, and judicial performance to the forefront of current economic development discourses.
The denouement of the postcolonial authoritarian project in Africa has finally helped to lift from relative obscurity these two Africa counterexamples to the illiberal and messianic ideologies that held sway in the region from the s to the end of the s.
In the current environment, then, it is not democracy or constitutionalism that stands in need of justification in Africa. In the light of the postcolonial record, it is authoritarianism and illiberalism that must carry the burden of persuasion as to their continued relevance and legitimacy.
The regional dimension of this normative shift is equally noteworthy. In , in a move regarded by many as signaling the arrival of a cadre of leaders committed to a new political and economic vision for Africa, the OAU was reconfigured as the African Union AU. Already, over twenty African governments have voluntarily agreed to submit to APRM, and participating states are expected to receive remedial support to address identified governance deficiencies.
Although the AU lacks the power to specify and enforce uniform standards of constitutional and democratic practice as a precondition for membership as the EU does, 72 its stated commitment to democracy and constitutionalism as new norms for the African region is a significant, if modest, step forward.
In fact, the AU, acting in conjunction with the subregional Economic Community of West African States ECOWAS , was influential in reversing a de facto coup in Togo in 73 and also played an important role, again with and through its subregional partners, in the recent restoration of civil authority to the failed states of Liberia and Sierra Leone.
The passing from the African political scene of modern Africa's founding fathers represents another important milestone in the political evolution of African states, in light of the pioneering role that these historical figures played in the legitimation and implantation of authoritarianism in postcolonial Africa. Today's generation of African leaders must find its legitimacy, by and large, in an election under a democratic constitutional order.
Of the current generation of African leaders, perhaps only Uganda's Yoweri Museveni, who may be credited with rescuing post—Idi Amin Uganda from the brink of state collapse and restoring to the country a measure of steady progress, can draw on supraconstitutional political resources of the kind that the Nyereres and Nkrumahs once commanded.
Yet even Museveni has not been able to resist or disregard sustained domestic pressure for constitutional and democratic reform. In the case of the latter two, as well as most recently in Nigeria, domestic opposition successfully resisted attempts to amend the Constitution to allow for an additional term for the retiring president.
The successful institution of presidential term limits in Africa is an immensely positive development for African constitutionalism.
The prospect of a president returning to private life after the expiration of the maximum constitutional term, with its attendant loss of presidential immunity, should help discipline the use of power during a president's term in office, especially where alternation of power between rival political parties and, for that matter, postregime accountability, is a strong possibility. Yet another significant development on the African scene is the emergence of strong domestic constituencies for constitutionalism, notably the newly ascendant private media and civil society.
The democratic openings of the late s and early s, in fact, owed much to the courageous leadership and civic-mindedness of religious bodies, professional associations, university students, and trade unions. These influential civil society organizations were instrumental, before opposition parties were legalized, in organizing and sustaining popular protests for regime change.
In the post-transition period, too, African civil society has remained actively engaged as monitors and critics of state practice and behavior, recognizing, perhaps, that politics and governance are matters too important to be left in the exclusive care of the political class. African countries have witnessed remarkable growth in the number and caliber of NGOs, many of which are chartered to protect and promote respect for the rule of law, human rights, gender equality, environmental justice, and economic liberty.
With their growing importance and influence as sources of remittances and emergency funds for their home-based kin and of direct investment for their home economies, 80 African nationals and communities abroad are beginning to integrate themselves into the public discourse and decision making in their home countries. Common avenues for such civic engagement by Africa's diasporan communities include overseas NGOs and political party branches as well as Internet blogs and Web sites that are dedicated to daily news and commentary about developments at home.
Many of these Internet forums, which are regularly accessed by home-based journalists, politicians, and sections of the general public, have become virtual parliaments of sorts, producing opinion leaders and other critics whose views, broadcast through cyberspace, are routinely fed back into public debates back home. Through collective action and active lobbying of their home governments, some communities of Africans abroad have even managed to secure legislative and constitutional changes that allow nonresident citizens to vote in national elections at home.
The recent rise of a diverse, independent, and aggressive media is a development of particular moment for the future of constitutionalism in Africa. Themselves a product and beneficiary of recent constitutional reforms, 83 Africa's fledgling private media have been among the most fearless defenders of the rights and liberties guaranteed by Africa's new or modified constitutions.
On the eve of the contemporary democratic transition, media pluralism and diversity did not exist in most African countries.
Importantly, broadcast media were a state monopoly serving a regime's propaganda needs. The growth of private mass media free of content control by state elites and censors has been one of the most important outcomes of constitutional reforms in many African countries. In Ghana, for example, before constitutional government was restored in , a regime-controlled radio and television station held a three-decade-old monopoly on all broadcasting.
Today, thanks to robust constitutional guarantees of free media and free speech, including an independent national media commission established to preempt political censorship of programming content, Ghanaians enjoy unimpeded access to news, editorial opinion, and political commentary from an expansive array of independent media sources, including the Internet.
Besides widely diverse print media, several private radio stations, numbering over fifty nationwide and covering all corners of the country, plus two private commercial TV stations and others accessible by cable , now operate freely in the country. In the largest urban markets individual media operators boast significantly larger shares of the audience than the state broadcaster. Ghana's private media have played a major role in exposing scandal and malfeasance in public office and in subjecting politicians to daily scrutiny.
And in recent elections, instant polling-site reporting of vote tallies by multiple freelance and private media correspondents have served as a critical, independent check on the integrity of national election administration, thereby lending greater legitimacy to officially declared results.
Constitutionalism then, far from being a luxury the poor cannot afford, is arguably more beneficial to the poor than it is to those with privileged access in the African political system. The results of recent elections in Africa underscore the growing value that African publics attach to guarantees of negative liberty. The NDC lost the ensuing elections, and voters cited a desire for greater freedom as their primary reason for preferring the rival party.
In the next December elections Ghanaians voted to retain the NPP, rewarding the incumbent government more for making good on its promises in the area of personal liberties and freedom than for any significant material accomplishment during its first four-year term. Africa's judiciaries, long considered marginal to the course of national events and politics, have also emerged from the current democratic and constitutional reforms with far greater prestige, authority, and confidence than they have ever enjoyed in the Africa's postcolonial history.
Africa's newly revised constitutions grant designated national courts the authority to enforce constitutional guarantees, including, notably, rights provisions.
While authoritarian-era courts served primarily as passive instruments of legitimation for the regime in power, 88 Africa's newly empowered courts are beginning to make constitutions and constitutional law matter. A few examples from various national courts illustrate the point.
In , the Constitutional Court of Benin 89 declared as an unconstitutional violation of freedom of association a decision of the Ministry of Interior that placed the ministry in charge of approving local development associations NGOs and also restricted to one the number of such NGOs that could legally operate in each district of the country.
This new judicial assertiveness stands in sharp contrast to the heyday of the postcolonial authoritarian project, when judicial pronouncements in cases like Re Akoto 96 and Ex parte Matovu 97 voided all possibility of meaningful judicial restraint on presidential power. It is a change in the politics of constitutionalism and, for that matter, in the politics and legitimacy of judicial review in Africa. Judged by their content, legitimacy, and impact, the constitutional reforms that have accompanied Africa's democratic transitions represent significant progress from the pre era.
On the whole, progress toward constitutionalism has been relatively steady in those African states like Ghana, Benin, and Senegal, where legislative and presidential elections have produced regime turnover, an indication that incremental progress in electoral democracy enhances the prospects for constitutionalism.
In particular, contemporary constitutional reforms in Africa have done little to change either the territorial vertical distribution of power within the postcolonial state or the functional horizontal allocation of sovereign power between the different institutions of the national government. In this last section, we shall examine a few salient features of the old order that have survived the democratic transition of the late s and s.
One defining characteristic of Africa's postcolonial project that has survived recent democratic and constitutional reforms is the consolidation or centralization of sovereign power in a unitary government. Even in countries such as Ghana and Uganda, where the federalism-versus-unitarism debate once drew a deep fault line within the founding generation, the federal idea has not been revived or revisited lately.
Nor have recent democratic and constitutional reforms in Africa done much to empower or transform local government. While there is an emerging consensus among Africa's policy-making elites that good governance must include meaningful devolution or decentralization of public power and initiative, Africa's new constitutions break no new ground in that regard. While elected local councils are a widespread phenomenon in contemporary Africa, provincial and local authorities still exist, both legally and functionally, as administrative subdivisions of a unitary central government.
Local administration , not local government , best describes the role played by local councils and officials within the African constitutional constellation. Moreover, with the notable exception of new democracies in southern Africa, where legislation has assigned sometimes ambiguous parallel roles and recognition to traditional kingship in local governance, constitutional change in much of contemporary Africa has failed generally to redress or reconsider, in any meaningful sense, the postcolonial exclusion of Africa's homegrown customary institutions from the formal structures of local representation and governance.
As before, Africa's newly emergent democracies have failed to emulate the successful example of Botswana, one of only two African countries with an unbroken record of postcolonial democracy, and one that has had a postcolonial policy of making selective use of traditional customary institutions at the basic or community level of its system of local administration.
Given the African state's limited capacity to penetrate or reach deep down into rural society and the indispensability yet relative scarcity of legitimacy as a political resource in Africa, it seems short-sighted and counterproductive to continue to exclude from the formal structures of local government a homegrown institution that commands the habitual allegiance and obeisance of a significant population of Africans. A persistent modern objection against traditional kingship is that it is an undemocratic institution and thus incompatible with contemporary democratic trends.
But merely because an institution might suffer from a democratic deficit does not make it ineligible for a functional role in a constitutional democracy. Constitutional democracies everywhere routinely assign limited specialized functions to appropriately designed countermajoritarian institutions, chief among them constitutional courts and central banks. At any rate, since kingship institutions in Africa have long ceased to exercise any essential elements of sovereign power, notably, the power to tax, to legislate policy, or to enforce criminal sanctions, the democratic objection to their functional participation in local government is grossly overstated.
Despite earlier attempts by postcolonial governments to marginalize traditional kingship or legislate it out of existence, the institution has proven exceptionally resilient and continues to command substantial organic and cultural legitimacy as well as mobilizing power within society.
Contemporary constitutional policy in Africa, in glossing over the political and social realities of Africa's largely rural populations and retaining the same monolithic system of government based mainly on norms and models nominally familiar to the urban political class, thus reflects the same discredited urban bias that has characterized elite policy making in the postcolonial state.
The failure to rethink the unitary model or to redistribute power away from the central state means that the task of transforming African constitutionalism must be effected through a horizontal distribution of power among the constituent institutions of the central government.
But here, too, the contemporary record is one of continuity rather than change. The recent flurry of constitution writing and rewriting in Africa is notable for its failure to alter the presidentialist character of Africa's constitutional politics.
The presidential form of government remains the unrivaled favorite of Africa's constitutional designers. While the latter comes with a system of checks and balances that includes a legislature with significant countervailing power, African presidentialism has historically dispensed with meaningful horizontal restraints on executive power.
The recent introduction of multiparty elections and presidential term limits have helped to democratize access to presidential office in Africa's reforming states.
But the African president has emerged from the current round of constitutional revisions with its substantive powers relatively undiminished. Despite the restoration of multiparty competition, Africa's postauthoritarian parliaments have yet to emerge from the shadows of executive hegemony to which decades of military or presidentialist one-party rule have consigned them. The long absence in postcolonial Africa of a tradition of parliamentary autonomy has severely handicapped Africa's legislatures in defining or protecting their institutional interests and prerogatives.
The problem has been further compounded by regressive constitutional design. Consistent with constitutional practice in democracies generally, Africa's parliaments possess formal legislative power, but oftentimes this is merely a power to pass or not pass bills initiated by the executive, not a power to make or originate legislation. Legislative and, for that matter, policy initiatives, including the determination of the national budget, are generally the prerogative solely of the executive, with the legislature's role usually limited to casting an up-or-down vote on the executive's finished package of proposals.
Even worse, it implies that presidential inertia or failure to act legislatively to address a public problem will leave open a policy vacuum and thus cause the problem to fester. In a legal regime where most laws come in the form of delegated legislation or executive rule making, the continued absence of meaningful parliamentary, popular, or judicial oversight of sublegislative rule making effectively enthrones the African executive as the real source of the laws governing society's routine social and economic activity.
Of the numerous resources that underwrite presidentialism in Africa none is as empowering, in a concretely personal sense, as the president's vast power of patronage.
The ability to reward friend and foe alike with state largesse, including appointments to important and not-so-important but still lucrative public offices is a presidential prerogative in postcolonial Africa that has been left largely untouched by recent reforms. In many of Africa's new democracies, nearly all open constitutional and statutory offices, including directorships and management posts in state-owned corporations, are filled by presidential appointment. While the approval of parliament is usually required in the case of constitutional offices, the president has ample patronage resources with which to secure legislative support for most of his nominations as well as legislative proposals.
In those countries, such as Ghana, where legislators are themselves constitutionally eligible for appointment to ministerial and other executive branch offices, presidents have been able to use such appointments, or the prospect, to co-opt or bend the will of influential legislators.
The fact that recent transitions from authoritarianism have tended to give rise to strong presidencies and relatively weaker legislatures remains one of the least theorized paradoxes of the third wave of democratization. Far from being a case of African exceptionalism, the imperial presidency—a term native to American political discourse and first used to describe the American presidency in the second half of the twentieth century —is, in fact, a phenomenon common to contemporary democracies everywhere.
As a fact of African political life, it was widely blamed for the institutional decay, neopatrimonialism, and clientelism that came to define the postcolonial state. Presidential personal rule was a central grievance of the protest movement, contributing to the crisis of legitimacy that ultimately precipitated the transition to democratic politics in the early s. It is thus troubling that presidentialism, in only slightly altered forms, should still persist.
A related failure of contemporary African constitutionalism is its relative lack of concern with bureaucratic or administrative, as opposed to political, power. Yet constitutionalism, concerned as it is with limits on governmental action, must be concerned with regulating all forms of public power, not just with power entrusted to politicians. In practice, however, constitutions, constitutional litigation, and constitutional law in Africa are concerned, at best, with regulating the exercise of power by holders of high office, notably presidents and other ruling politicians.
Yet, for the average African, the most pervasive and perennial abuses of discretionary power are encountered at the middle and lower tiers of the public administration. Typically absent from these dealings is any notion of the rule of law. The rule of men literally best describes the nature of the encounters with public power that matter most to the greatest number of Africans.
A constitutionalism that presumably is concerned with righting abuses of power by the holders of high office but not with the ubiquitous and routine abuse of power by ordinary public servants is unlikely to sow deep roots within society. The search for explanations must begin with the process of political transition in contemporary Africa. In the main, the recent rule changes in the politics of Africa have been primarily about installing or restoring democratic politics, not about constitutionalism or reforming government per se.
Thus, the transition agenda in Africa has been dominated by issues like guaranteeing the right of opposition parties and candidates to contest elections; assuring the free, fair, and independent conduct of elections; checking the abuse of incumbency for unfair electoral advantage; ending government monopoly and censorship of the media; and imposing new term limits on presidential tenure. The common theme that connects these issues is a concern with opening up a previously closed political process to ensure pluralistic representation and participation in national government.
Usually all that is required to accomplish these ends are a few selective amendments to an existing constitution, primarily to remove clauses that prevented open contestation for political office. A comprehensive overhaul of the constitutional order, beyond the installation of democracy, has generally been off the table. The limited purview of Africa's constitutional reform also reflects the narrow, self-interested agendas of rival elites at the moment of transition.
Hence, the preoccupation with elections and with fairness in the conduct of elections. In thus failing to build credible checks and balances into the political half of the state, Africa's postauthoritarian constitutions have allowed the burden of promoting and sustaining constitutionalism to fall, disproportionately, on the third branch of government: the judiciary.
Thus, rather than structural reform of state and government, contemporary constitutional policy in Africa has tended to rely on judicially enforceable rights as the mechanism for checking authoritarian uses of power. However, it is doubtful that bills of rights and judicial review alone—absent structural constitutionalism —can secure or sustain constitutionalism in contemporary Africa.
As we saw in section 2 of this essay, Africa's newly emboldened courts have already produced a corpus of important rulings protecting civil and political liberties and limiting governmental power. Despite this encouraging record, there is reason to be skeptical of the possibilities of juridical constitutionalism in Africa. This skepticism is partly a general one, pertaining to the political vulnerability of the institution of judicial review.
But it is also, more specifically, about judicial review within the context of contemporary Africa. Notwithstanding recent constitutional reforms, a large inventory of repressive legislation remains on the statute books of most of Africa's reforming states.
During moments of constitutional reform, the common practice, first used in the transition from colonialism to sovereign statehood, is to hold over or grandfather all preexisting legislation and sublegislative laws into the new era. Legislation can then be repealed on a case-by-case basis by the legislature or otherwise overturned as unconstitutional if challenged in the courts.
This situation, which describes a state of affairs common throughout contemporary Africa, threatens personal liberty because, while public officials are likely to continue to apply preexisting laws in the post-transition period, extremely low levels of constitutional literacy and rights-awareness among the population would likely result in relatively few constitutional challenges being brought against these laws. To help overcome this problem, many contemporary African constitutions have enacted new rules of standing that permit suits to be filed without a showing of personal injury or injury-in-fact.
The liberalization of constitutional standing, however, has not resulted in the emergence of private attorneys general, so called, ready and willing to sue the government in defense of the rights of others or the public as a whole. Thus African legal communities have not seized on the liberalization of constitutional standing to champion and press judicial enforcement of the constitution on behalf of others.
Given the gross underenforcement of the constitution, arising from relatively few legal challenges, the most effective and efficient solution to the problem of obnoxious laws held over from the past might be for such laws to be repealed ex ante. This could be done by express provision in the constitutional text or else for postauthoritarian legislatures to repeal them.
However, neither Africa's post-transition constitutions nor its newly elected governments have purged the statute books of such repressive legislation, creating a situation parallel to that in the immediate aftermath of colonialism when colonial era laws, many of them designed for repression, remained in force after independence. In countries with a long postcolonial experience of military rule, such as Nigeria, Benin, and Ghana, this problem has created a situation where decrees from past military regimes constitute a disproportionately large portion of all currently valid laws.
The retention in postauthoritarian Africa of a large stock of repressive legislation confronts judicial review with a paradox: on the one hand, there is potentially a large number of cases deserving of judicial review; on the other hand, there remains a severe shortfall of actual litigated cases. For judicial review to have the capacity to advance constitutionalism, there must be, first and foremost, citizens who are educated about their rights and are willing and able to sue to protect them from infringement by the state.
Alternatively, an active public interest bar must be available to take on such litigation on behalf of persons whose rights may have been violated. Neither condition currently exists in most African states.
Putting aside the problems with constitutional litigation, Africa's judiciaries themselves face a legion of difficulties that could undermine their effectiveness as guardians of the new constitutions. In the end, the fate of constitutionalism, where it must depend primarily on judicial review, will depend crucially on the set of values, norms, and assumptions that informs judicial reasoning and decision making, especially when it comes to interpreting and applying open-textured constitutional provisions.
On the whole, the bills of rights found in Africa's current constitutions provide a strong textual foundation for the development of a rights-friendly jurisprudence. Concerns and uncertainties remain, however, in the area of judicial attitudes and interpretive methodologies.
For example, among the judges and lawyers of common law Africa, the persistent influence of common law thinking and approaches to interpretation as well as a residual cultural relativism in judicial attitude toward rights are tendencies that could obstruct the emergence of a robust jurisprudence of rights. Without sustained progress or structural reform in the political half of constitutionalism, Africa's judiciaries may, in time, settle back into their familiar jurisprudential patterns, reading new or revised constitutions with old executive-colored lenses.
Important changes have taken place in the constitutional politics and landscape of Africa since the end of the s, when mounting pressure for democratic reform began to register successes from one country to the other.
Thus far, the balance sheet shows a very variegated picture, of incremental progress in certain countries but of stagnation, even retrogression, in many others. Overall, elite commitment to constitutionalism remains weak or lukewarm at best. Even so, the balance of legitimacy has shifted away from authoritarianism and in favor of democracy and constitutionalism. Where authoritarianism persists, it is not quietly or passively tolerated.
Rather, resistance to authoritarianism and pressure for reform also persist. It is under siege. Contemporary Africa's democracy and constitutionalism projects are still works-in-progress, and relatively young ones at that. For the foreseeable future, the democratic and liberal openings in Africa will continue to require consistent and persistent nurturing, correction and progressive reform.
Indeed, the constitutional changes made in the early s must be regarded, appropriately, as transitional and thus necessarily incomplete. Interim constitutions, such as were used by South Africa between and , or constitutional rules institutionalizing a process of formal periodic review of the constitution seem a more sensible way to proceed. In the near term, what is needed to reenergize and advance the constitutionalism project in Africa is a second generation of constitutional reforms, one that will shift the emphasis from merely installing electoral democracies to building firmer structural and institutional foundations for constitutionalism.
And in this next stage of Africa's constitutional evolution, the power map of the entire postcolonial state and its founding assumptions —not just disaggregated and disembodied parts of it—must be placed on the reform agenda. Fifty years after the end of colonialism, the time is ripe, and the times auspicious, for the postcolonial state in Africa to receive its first-ever comprehensive review and reform.
Press Mary L. Dudziak, Who Cares About Courts? See, e. Grootboom 11 BCLR CC state has judicially enforceable constitutional duty to enact and implement reasonable legislative measures to meet the housing needs of populations living in destitute conditions ; August v. Electoral Commission 4 BCLR CC constitutional right to vote extends to convicted and remand prisoners, and electoral authority is obligated to make appropriate arrangements to enable such citizens to register and to vote.
As social scientists C. Democracy 37 July reviewing the various national conferences held in francophone Africa following the Benin example. Eighteen heads of state have lost elections and been replaced by someone else. Plattner eds. Larry Diamond, Introduction to Democratization in Africa, supra note 10, at ix. See Lucian W. See Bereket H. See Robert H. Eisenstadt, Michel Abitol, and Naomi Chazan, eds. Nigerian unity is only a British invention.
It was the policy of the Belgian colonial authorities not to educate Congolese to assume roles much higher than clerks. Thus, at independence clerks were among the best-educated classes in the Congo. In practice, of course, political mobilization, manipulation, and construction of ethnicity became and remain important components of the modus operandus of Africa's postcolonial leaders.
Quoted in Robert B. He also has the power to retire Judges before the stipulated retiring age. After slowing at 3. Inflation increased from 1. Although the economy has grown faster than that of the countries of the Economic and Monetary Community of Central African States CEMAC in French and sub-Saharan Africa, it is still lagging behind comparable countries known as structural peers, such as Burkina Faso, Malawi, Mali, Niger, and Uganda and countries that have had a development trajectory that can serve as an example known as aspirational peers, such as Rwanda.
The crisis was particularly harmful. Poverty remains pervasive, with nearly 3. CAR's economic outlook is positive, however, thanks to the signing of the Political Agreement for Peace and Reconciliation in February , and forecasts growth of 4. According to the report, public debt increased from Although, CAR still presents a high risk of debt overhang, its efforts to rationalize public expenditure and resolve domestic arrears have enabled it to post better public debt trends than CEMAC and sub-Saharan African countries on average and to come closer to the debt levels of its peers.
Going forward, the Government intends to continue on this path by rationalizing public expenditure and monitoring the recruitment of civil servants for more efficient management of the wage bill.
The government has limited capacity to deliver basic services due to inadequate funding in social sectors and is significantly lower than all comparators. For example, the education sector budget is low and highly reliant on donor financing.
As of , public spending in education represents only 1. This situation did not change much over time. Strengthening domestic revenue mobilization will support basic public goods and services provision, support economic growth, and reduce the government's debt burden.
The report provides detailed recommendations to increase domestic revenue collection by improving tax and customs policies and administration. Implementing reforms to reduce tax exemptions and improve the business environment to attract private investment will require a strong commitment from authorities.
Mobilizing domestic resources is critical, not just as a way of raising government revenue but also as a means of shifting the country into a virtuous cycle of peace and security.
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