News

Push for More Democracy Drives Constitutional Change in Africa

A number of sub-Saharan countries have amended their constitutions over the years. Some changes came at the barrel of a gun. But in recent years, most have come from democratic processes.

Sudanese President Omar Al Bashir, centre, holds the draft interim constitution for Sudan, in Khartoum, June 26, 2005, with the President of the Constitutional Court Judge Galal Ali Lutfi, right, and the Chairperson from Southern Sudan Abel Alair, left. (
Sudanese President Omar Al Bashir, centre, holds the draft interim constitution for Sudan, in Khartoum, June 26, 2005, with the President of the Constitutional Court Judge Galal Ali Lutfi, right, and the Chairperson from Southern Sudan Abel Alair, left. (

Multimedia

Audio
William Eagle

 

This is Part Two of a seven-part series on African constitutions

Continue to Parts:     1 / 2 / 3 / 4 / 5 / 6 / 7

 

The impetus to change Africa’s constitutions can be traced to both grass roots pressure and to international politics. Many African countries gained independence in the 1960s, and their constitutions were set up with the help of the former colonial powers. In the 1970s, many African countries alternated between military governments and one-party systems.

Era of change

Constitutional experts say the most recent era of change came after the fall of the Berlin Wall in 1989 and the collapse of the Soviet Union in 1991.

Women line up to cast their ballots in parliamentary elections in Hargeisa in Somaliland. (September 2005)
Women line up to cast their ballots in parliamentary elections in Hargeisa in Somaliland. (September 2005)


Professor Yash Ghai of the Nairobi-based Katiba (Constitution) Institute says the demise of the communist power bloc meant the end of Western support for anti-communist - and anti-democratic - leaders in Africa in what had been a proxy war. He says that helped bring an end to the 24-year-rule of Kenya’s Daniel Arap Moi in 2002.

“With the end of the Cold War, the U.S. championed democracy, and civil society in Kenya was able to work with the U.S. Embassy which was in good position to put pressure on President Moi," said Yash Ghai. "So the interests of the West and of Kenyans coalesced."

Domestic politics

But some new constitutions are also the result of domestic politics. That includes a cessation of conflict, as in the end of apartheid in South Africa in 1994. South Sudan plans to revise an interim constitution enacted as part of a peace agreement with the Republic of Sudan signed in 2005.

Usually, these and other new constitutions are reached through a series of negotiations and constitutional assemblies or commissions that include all segments of society, including opposition groups. The draft is debated in public and a final version is often submitted for approval in a referendum.

Other countries simply amend older constitutions over time.

Tanzania

In Tanzania, opposition politicians are reviewing their independence constitution, which originally supported a single-party state but was modified over the years to include multi-party democracy.

“So, the Tanzanian authorities said in the 1990s most African countries undertook a radical revision of their constitutions and it’s time now to look at Tanzania’s own constitution," said  Charles Fombad, a member of the African Network of Constitutional Lawyers and a professor of Comparative Constitutional Law at the University of Pretoria in South Africa. "Authorities have said there have been piecemeal changes that could [make the original constitution] lose its coherence. Now they want to change it so every provision is looked at to be sure there’s no incoherence.”

Social and political reforms

Experts say not all social and political reforms need to be added to a constitution. But Fombad says it is critical that the foundation for reforms be laid down in the constitution so as to create a legally enforceable obligation that must be respected.

Typical examples of this are women’s rights and land tenure.

“There are countries like South Africa, Zimbabwe, Kenya that have had very serious issues with land tenure," said Fombad. "These [policies] were inherited during apartheid or during the colonial period. The constitutions were drafted in such a manner that the land rights of those who had acquired lands in those days were protected and entrenched. You cannot change the policy without changing the constitution.”

Often, as in many francophone countries, the power to introduce legislation to alter the documents lies with the president or parliament.

Critics say this typically has resulted in the roll-back of constitutional provisions limiting the head of state to two terms.

Courts

In many cases, African leaders have also diluted the impartiality of the courts and independent organizations created in part to act as watchdogs on the government.

Rainer Grote is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He says that was the case in Kenya five years ago when, under the old constitution, President Mwai Kibaki appointed all members of what was meant to be an independent body, the electoral commission.

“When the elections in December 2007 took place, the commission was quick to confirm that President Kibaki had been re-elected," said Grote. "Everyone else, the opposition parties and large parts of the international community, viewed the election as rigged. Can you expect members of the electoral commission, who owe their appointment to the president, to be independently minded when it comes to his survival in office following the elections? “

Similar situations occur in countries where one party dominates the presidency, the parliament and the judiciary, thus curtailing a system of checks and balances.

Senegal

Grote cites the example of Senegal’s Constitutional Council which ruled at the beginning of this year that President Abdoulaye Wade could run for a third term in office, despite the adoption of a new Constitution in 2001 limiting the president to two terms. The Council held that the first election of Wade took place under the previous constitution and should therefore not be taken into account when calculating the allowed number of terms under the new constitution. In the Council’s view, Wade’s re-election in 2007 would count as his first official term under the new document.

Senegalese demonstrate against President Wade's decision to run for re-election with signs reading “Don’t touch my constitution!” (December 2011)
Senegalese demonstrate against President Wade's decision to run for re-election with signs reading “Don’t touch my constitution!” (December 2011)

"[Senegal’s Constitutional Council] is modeled on the French Constitutional Council," he explained.

"However, unlike in France – where 1/3 of the Council members are appointed by the president, 1/3 by president of the National Assembly and the remaining 1/3 by the president of the Senate – in Senegal all members of the Council are appointed by the president. He does not need to consult Parliament or to have parliamentary approval. Even in a functioning multi-party democracy, such unfettered appointment powers of the chief executive would probably result in a highly partisan court."

New ideas

But African democrats are learning from their mistakes.

Some countries have borrowed from the South African example of holding the government accountable to a constitutional court that can hear complaints and rule against government policies. Changes to the constitution require a two-thirds majority of the National Assembly and the support of a majority of the provinces.

Ghai says in Kenya, Chapter 16 of the country’s 2010 constitution allows citizens to initiate reforms as long as they do not affect key issues such as the supremacy of the constitution, the bill of rights and the terms of the president or the territory of the country.

“Normally, the initiative for constitutional change rests with the government or parliament," said Ghai. "But in Kenya, we’ve introduced an alternative where people can get a certain number of signatures trigger off the process. It is possible for people themselves through petitions to [propose] an amendment. It could end with a referendum or be presented to Parliament.”

Political scientists say a constitution should not be too easy to change. Otherwise, they say it would be difficult for democratic institutions to develop and the document could lose public support. They say that makes it all the more important to take the time to develop an open and inclusive process for creating a constitution that can evolve over time.

This forum has been closed.
Comments
     
There are no comments in this forum. Be first and add one

Featured Videos

Your JavaScript is turned off or you have an old version of Adobe's Flash Player. Get the latest Flash player.
Booming London Property a ‘Haven for Dirty Money’i
X
July 29, 2015 9:34 PM
Billions of dollars of so-called ‘dirty money’ from the proceeds of crime - especially from Russia - are being laundered through the London property market, according to anti-corruption activists. As Henry Ridgwell reports from the British capital, the government has pledged to crack down on the practice.
Video

Video Booming London Property a ‘Haven for Dirty Money’

Billions of dollars of so-called ‘dirty money’ from the proceeds of crime - especially from Russia - are being laundered through the London property market, according to anti-corruption activists. As Henry Ridgwell reports from the British capital, the government has pledged to crack down on the practice.
Video

Video Hometown of Boy Scouts of America Founder reacts to Gay Leader Decision

Ottawa, Illinois, is the hometown of W.D. Boyce, who founded the Boy Scouts of America in 1910. In Ottawa, where Scouting remains an important part of the legacy of the community, the end of the organization's ban on openly gay adult leaders was seen as inevitable. VOA's Kane Farabaugh reports.
Video

Video 'Metal Muscles' Flex a New Bionic Hand

Artificial limbs, including the most complex of them – the human hand – are getting more life-like and useful due to constant advances in tiny hydraulic, pneumatic and electric motors called actuators. But now, as VOA’s George Putic reports, scientists in Germany say the future of the prosthetic hand may lie not in motors but in wires that can ‘remember’ their shape.
Video

Video Russia Accused of Abusing Interpol to Pursue Opponents

A British pro-democracy group has accused Russia of abusing the global law enforcement agency Interpol by requesting the arrest and extradition of political opponents. A new report by the group notes such requests can mean the accused are unable to travel and are often unable to open bank accounts. VOA's Henry Ridgwell reports.
Video

Video 'Positive Atmosphere' Points Toward TPP Trade Deal in Hawaii

Talks on a major new trade agreement among 12 Pacific Rim nations are said to be nearing completion in Hawaii. Some trade experts say the "positive atmosphere" at the discussions could mean a deal is within reach, but there is still hard bargaining to be done over many issues and products, including U.S. drugs and Japanese rice. VOA's Jim Randle reports.
Video

Video Genome Initiative Urgently Moves to Freeze DNA Before Species Go Extinct

Earth is in the midst of its sixth mass extinction. The last such event was caused by an asteroid 66 million years ago. It killed off the dinosaurs and practically everything else. So scientists are in a race against time to classify the estimated 11 million species alive today. So far only 2 million are described by science, and researchers are worried many will disappear before they even have a name. VOA’s Rosanne Skirble reports.
Video

Video Scientists: One-Dose Malaria Cure is Possible

Scientists have long been trying to develop an effective protection and cure for malaria - one of the deadliest diseases that affects people in tropical areas, especially children. As the World Health Organization announces plans to begin clinical trials of a promising new vaccine, scientists in South Africa report that they too are at an important threshold. George Putic reports, they are testing a compound that could be a single-dose cure for malaria.
Video

Video 'New York' Magazine Features 35 Cosby Accusers

The latest issue of 'New York' magazine features 35 women who say they were drugged and raped by film and television celebrity Bill Cosby. The women are aged from 44 to 80 and come from different walks of life and races. The magazine interviewed each of them separately, but Zlatica Hoke reports their stories are similar.
Video

Video US Calls Fight Against Human Trafficking a Must Win

The United States is promising not to give up its fight against what Secretary of State John Kerry calls the “scourge” of modern slavery. Officials released the country’s annual human trafficking report Monday – a report that’s being met with some criticism. VOA’s National Security correspondent Jeff Seldin has more from the State Department.
Video

Video Washington DC Underground Streetcar Station to Become Arts Venue

Abandoned more than 50 years ago, the underground streetcar station in Washington D.C.’s historic DuPont Circle district is about to be reborn. The plan calls for turning the spacious underground platforms - once meant to be a transportation hub, - into a unique space for art exhibitions, presentations, concerts and even a film set. Roman Mamonov has more from beneath the streets of the U.S. capital. Joy Wagner narrates his report.
Video

Video Europe’s Twin Crises Collide in Greece as Migrant Numbers Soar

Greece has replaced Italy as the main gateway for migrants into Europe, with more than 100,000 arrivals in the first six months of 2015. Many want to move further into Europe and escape Greece’s economic crisis, but they face widespread dangers on the journey overland through the Balkans. VOA's Henry Ridgwell reports.
Video

Video Stink Intensifies as Lebanon’s Trash Crisis Continues

After the closure of a major rubbish dump a week ago, the streets of Beirut are filling up with trash. Having failed to draw up a plan B, politicians are struggling to deal with the problem. John Owens has more for VOA from Beirut.
Video

Video Paris Rolls Out Blueprint to Fight Climate Change

A U.N. climate conference in December aims to produce an ambitious agreement to fight heat-trapping greenhouse gases. But many local governments are not waiting, and have drafted their own climate action plans. That’s the case with Paris — which is getting special attention, since it’s hosting the climate summit. Lisa Bryant takes a look for VOA at the transformation of the French capital into an eco-city.
Video

Video Racially Diverse Spider-Man Takes Center Stage

Whether it’s in a comic book or on the big screen, fans have always known the man behind the Spider-Man mask as Peter Parker. But that is changing, at least in the comic book world. Marvel Comics announced that a character called Miles Morales will replace Peter Parker as Spider-Man in a new comic book series. He is half Latino, half African American, and he is quite popular among comic book fans. Correspondent Elizabeth Lee reports from Los Angeles.
Video

Video Historic Symbol Is Theme of Vibrant New Show

A new exhibit in Washington is paying tribute to the American flag with a wide and eclectic selection of artwork that uses the historic symbol as its central theme. VOA’s Julie Taboh was at the DC Chamber of Commerce for the show’s opening.

VOA Blogs