Africa and Transnational Constitutionalism

by

Charles Manga Fombad

• LAST MODIFIED: 28 October 2020
• DOI: 10.1093/obo/9780199796953-0216

Introduction

Africa’s experience with constitution making in general and constitutionalism in particular is quite short and dates from the immediate postindependence period. The independence constitutions were virtually imposed by the departing colonial powers with minimal participation in their making by the people and their leaders. They were essentially transplants of the constitutional traditions of the main colonizers—namely the British, the French, and the Portuguese. For the inexperienced Africans assuming the role of leadership, these constitutional documents were simply too complex, and perceived as too badly adapted to address the immediate postindependence problems of underdevelopment. Under the pretext of promoting national unity among the diverse communities which had been artificially forced together as states during the partition of Africa in 1884, and to promote a sense of political identity and thus facilitate nation building and development, many of the liberal principles contained in the independence constitutions were progressively repealed. By the end of the 1980s the independence constitutions had not only become emasculated but had given rise to repressive, corrupt, and incompetent authoritarian regimes along with political instability and the collapse of most economies. However, since the 1990s, there has been a revival of constitutionalism in Africa. A new generation of ‘made in Africa’ constitutions have emerged after new or substantially revised constitutions were adopted. While all these constitutions have retained the strong imprint of their colonial roots they also reflect the adoption of many other features of transnational constitutionalism. Many African constitutions also reflect the considerable efforts at the supranational level by the African Union (AU), influenced by contemporary ideas of transnational constitutionalism, to promote constitutionalism on the continent. Perhaps one of the most significant developments has been the growing influence of an intra-African cross-fertilization of constitutional ideas centered around the South African 1996 Constitution that has influenced the direction and content of the constitution of other African countries such as the 2010 Kenyan and 2013 Zimbabwean Constitutions. Nevertheless, appreciating the extent of transnational constitutionalism in Africa must be understood in the context of the historical heritage of the different African countries. Accounts must also be taken of the complex history of these countries, the ethnic and religious diversity of the population, and the challenges encountered in the continuous attempts to entrench a culture of constitutionalism, good governance, and respect for the rule of law in the face of ominous threats of an authoritarian revival.

General Overview

This section contains a general overview of the extant literature on transnational constitutionalism in Africa. Indeed, as noted above, African constitutionalism has significantly benefited from foreign influences and interactions. Consequently, most of the constitutions in Africa are basically transnational in character. It is from this perspective that one can appreciate the nature of transnational constitutionalism in Africa. It is however apposite to state that the exact nature of transnational constitutionalism in Africa has not really been dealt with in the literature. Specifically, not many African scholars have seriously engaged with the concept of ‘transnational constitutionalism’ and its features. Goderis and Versteeg 2013 provides some conceptual understanding of the nature of transnational constitutionalism. Having said that, it is however important to note that, until the last few years before 2020, the exact nature and extent of transnational constitutionalism in Africa beyond the colonial traditions that were transplanted to the different countries has not really been dealt with in literature. In other words, not many African scholars have conceptualized ‘transnational constitutionalism’ and its features beyond discussions of the common law tradition in anglophone Africa and the civil law traditions in francophone, lusophone and Hispanophone Africa. The starting point however is the literature that examined the first wave of transnational constitutionalism in Africa, namely the transplanted independence constitutions. In this respect, the works of Benjamin O. Nwabueze (Nwabueze 1973, Nwabueze 1993, Nwabueze 2003a, Nwabueze 2003b, Nwabueze 2003c, Nwabueze 2003d and Nwabueze 2003e), one of Africa’s most distinguished constitutional law scholars, provide an authoritative source on the nature, scope, and evolution of transnational constitutionalism in the postindependence constitutions in Africa until the 1990s. They also provide some insights into the military incursions into politics in Africa and their contribution to undermining the attempts to entrench a culture of constitutionalism on the continent. Nwabueze’s work is also significant in that he is one of the earliest scholars who tried to analyze the impact of transnational constitutionalism in Africa from a comparative perspective, although this was often based on an examination of anglophone countries in Africa. As we will see in subsequent sections, other authors have undertaken similar studies, but it is only recently that serious cross-systemic studies (that is, studies across the dominant common law and civil law divide) of the growing impact of transnational constitutionalism in Africa have begun to emerge as an area of serious scholarship.

• Go, Julian. “A Globalizing Constitutionalism? Views from the Postcolony, 1945–2000.” International Sociology 18.1 (2003): 71–95.

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  With the aid of primary data from the constitutions of over ninety-one postcolonial nations, the author demonstrates how constitutional principles have developed and converged at some level and the effects of global political norms on constitutionalism. This is good literature which explains the process of transnational constitutionalism and how constitutional text can be made to embrace the local circumstances of the people.

• Goderis, Benedikt, and Mila Versteeg. “Transnational Constitutionalism: A Conceptual Framework.” In The Social and Political Foundations of Constitutions. Edited by Denis Galligan and Mila Versteeg, 103–133. Cambridge, UK: Cambridge University Press, 2013.

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  This is a very important conceptual work on transnational constitutionalism. Although not specifically focused on Africa, the work is crucial in that it largely makes references to African countries in analyzing the nature and extent of “conscious emulation” of democratic constitutions of the Western world. The authors center their analysis on previous empirical work which analyzed the foreign influences in constitutions of about 188 countries.

• Nwabueze, Benjamin O. Constitutionalism in the Emergent States. London: C. Hurst & Company, 1973.

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  This book analyzes the nature of constitutionalism in emergent states and the impact of the crises of legitimacy on newly formed governments. Of more significance is chapter 3 of the book that examines “The Westminster Export Model and Constitutionalism in the New Commonwealth.” This chapter examines the colonial influences on the constitutions of states in the Commonwealth.

• Nwabueze, Benjamin O. Ideas and Facts in Constitutional Making. Ibadan, Nigeria: Spectrum Books, 1993.

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  Nwabueze considers the various influences on constitutional making in African states after independence. The book, which is like a general summary of previous work, analyzes some basic features of constitutional making in African states. This work is very significant in that it examines how African states import basic constitutional principles from abroad and how there were attempts to diffuse these principles into the governance structures of the receiving states.

• Nwabueze, Benjamin O. Constitutional Democracy in Africa. Vol. 1, Structure, Powers and Organising Principles of Government. Ibadan, Nigeria: Spectrum Book, 2003a.

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  This first volume of a five-volume series analyzes various governance systems in postindependence Africa. In addition, it explains why constitutional democracy is critical for realizing development in emergent African states. The volume also reflects on the structure, powers, and organizing principles of government. The issue of how constitutional democracy and other forms of governments have been applied in practice in Africa is also examined.

• Nwabueze, Benjamin O. Constitutional Democracy in Africa. Vol. 2, Constitutionalism, Authoritarianism, and Statism. Ibadan, Nigeria: Spectrum Books, 2003b.

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  This second volume offers a critical analysis of the new forms of government in most African countries postindependence. In this volume, the author is specifically concerned about the atrocities perpetuated under authoritarian rule and therefore argues that no system of government accentuates the goals of the existence of mankind better than a constitutional democracy. The author offers important insights into how to overcome this dangerous authoritarian trend.

• Nwabueze, Benjamin O. Constitutional Democracy in Africa. Vol. 3, The Pillars Supporting Constitutional Democracy. Ibadan, Nigeria: Spectrum Books, 2003c.

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  After effectively making a strong case for constitutional democracy in the first two volumes, the third volume focuses on how this new form of government can be effectively consolidated. The third volume therefore reviews the key pillars of a constitutional democracy such as the rule of law and independent judiciary.

• Nwabueze, Benjamin O. Constitutional Democracy in Africa. Vol. 4, Forms of Government. Ibadan, Nigeria: Spectrum Books, 2003d.

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  In the fourth volume, the author reviews models of constitutional democracy and authoritarian forms of government. It considers how the various forms of government have developed over time in various jurisdictions, especially the UK, and what lessons Africa countries can learn from this development.

• Nwabueze, Benjamin O. Constitutional Democracy in Africa. Vol. 5, The Return of Africa to Constitutional Democracy. Ibadan: Spectrum Books, 2003e.

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  This outstanding series ends in Volume 5 with an examination of African countries’ attempt to return to a ‘proper’ constitutional democracy. Nwabueze identifies the internal and external factors that led Africa to return to constitutional democracy and the transition process. The volume identifies the challenges in this transition processes but strongly argues for post-colonial decolonization as the key to ensuring democracy and good governance.

• Yusuf, Hakeem O. Colonial and Post-Colonial Constitutionalism in the Commonwealth. Peace, Order and Good Governance. London: Routledge, 2014.

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  Based on an analysis of the various dimensions of the peace, order, and good government clauses, it traces the history, politics, and applications of this clause through the colonial period in Commonwealth territories to date. The main contention of the author is that, while the clause is not devoid of positive value, it was nevertheless used not only to further the objects of colonialism but also authoritarianism and apartheid.