The “imperial presidency.” It’s the name given by many constitutional scholars and opposition politicians to unchecked powers that some say practically make the executive into a monarchy.
Strong presidents are part of a long tradition in Africa, from powerful colonial governors to leaders linked to one-party rule. Scholars say nearly everyone is complicit: they note many founding fathers believed that only powerful leaders could foster national unity and development. Their authority was not to be questioned by public debate or by other branches of government.
Professor of law Kwasi Prempeh, who teaches at Seton Hall Law School in Newark, New Jersey, said many African constitutions were amended in the 1990s to reflect multi-party democracy. But he said they left the issue of presidential power unanswered.
"What is executive power? It comes from constitutional tradition," he explained, "from a litany of laws going back to [the military era of] the 1960s [and even to the colonial era], controlling economy and security – all in legislation. We should step back and look at all laws carried over from one regime to the next [when we re-write our constitutions]. A lot of laws from the past have really cast a dark shadow on our new constitutions."
Those laws, adopted by parliaments and regimes in the past, give the president overwhelming powers over a broad range of areas, such as the police, internal security, the economy, land allocation, and state corporations. Prempeh said they’ve become entrenched over time, and have come to define the president’s powers.
Prempeh said other modes of unchecked behavior persist. Among them are presidential directives, which some call “government by press release.” In addition, legislatures and courts often rely on the president for their budgets and other resources. He notes that budgetary support from overseas donors often goes through the president’s finance ministers, not the parliament. As a result, both the legislature and the courts often fail to act as a form of “checks and balances” against presidential power.
Some legislatures have openly relinquished power. Prempeh said in 2001, Ghana’s national assembly renewed a law from the 1960s giving the president the sole authority to establish government ministries and departments. In many countries, the president appoints legislators to the cabinet and to other positions. Prempeh said in Zambia, former president Federick Chiluba appointed nearly half of all legislators to his administration, effectively buying off potential rivals within the party.
Some legislatures have even ceded to the president the power to name the speaker of parliament, ensuring the interference of the executive branch in the body’s day-to-day business. In many countries, the president, not the parliament, originates legislation, including the budget. It can be approved or rejected, but not amended by the legislature.
The president, sometimes with the support of his party’s majority in parliament, often has the power to name members of the judiciary, including constitutional courts. They often rule in favor of presidents who want to overturn term limits.
Scholars have various ideas for limiting the power of the executive.
Prempeh argues for a review of all existing laws that focus power in the presidency. Constitutional reforms would make clear the powers of the three branches of government and ensure funding for each does not depend on the president.
Prempeh also called for rules encouraging the democratization of political parties, which he says often revolve around the personalities funding them, rather than ideas. Today, he said, political parties lack internal democracy and can fire members who do not follow the party line. He said parties are therefore hijacked by presidents, who use their control of ‘slush funds’ to fund their parties.
"In Ghana," he explained, "there are provisions in constitution which says the internal governance of parties should conform to democratic principles. The general understanding [even though this has not been tested in court] is that one person cannot hijack the party and turn it into their personal estate.
"You are not going to have an undemocratic party producing democratic politicians. If the party is not democratic, does not hold primaries or allow anyone to contest for president, then that is the beginning of autocracy."
Tom Ginsburg is professor of international law at the University of Chicago Law School and professor of political science. He and Professor Prempeh support the introduction of constitutional courts, like the one in South Africa. It can review government policy and mandate changes if the court finds violations of the constitution.
The French connection
Ginsburg said that in francophone Africa, there are constitutional courts that can hear cases – and suggest amendments -- brought to them by the president, deputies and other political groups. Most of those cases judge the legality of laws passed by parliament, but only before they’ve been signed.
He said the courts are based on an idea introduced by a well-known French leader from the 1960s who stood for a strong executive power over the legislature.
"It’s really a mechanism for the political system to work out problems within legislation before it becomes law," said Ginsburg. "It was originally designed by former president Charles De Gaulle to check the French parliament and has fit well in political culture of francophone West Africa, in which strong men can use the constitutional court to prevent parliament from becoming too independent."
"France amended its constitutional court in 2008 to provide for individual complaints against laws after they have been promulgated, and that was a radical change in France. But most of the former French colonies have not followed that. They have retained the old model. Maybe in coming decades they’ll change their system and that would allow further development of constitutional courts, which would be an independent check on government."
A new start
Prempeh said that new constitutions should rethink the idea of retaining wholesale the judges from the past.
"You are delivering a state-of-the-art constitution to a holdover judiciary whose traditions and habits [have been formed in] an authoritarian period," he said. "And then you expect that somehow overnight…the same [judges] will turn around and begin to come up with very liberal j[interpretations and] jurisprudence to back up the constitution."
He suggests a solution from Kenya, where a new constitution was adopted in 2010: sitting judges were put on leave and had to re-apply for their jobs.
And he said constitutional changes could provide parliament with a greater say. One idea would mandate that certain actions like appointments to independent constitutional offices be approved by a super-majority.
He said ruling parties are holding on to their parliamentary majorities with fewer numbers, thus forcing them to negotiate with opposition parties in order to govern. And that, said Prempeh, is an opening for enhanced democracy.