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.
    Displaced By War, Syrian Artist Finds Inspiration Abroadi
    X
    May 02, 2016 1:36 PM
    Saudi-born Syrian painter Mohammad Zaza is among the millions who fled their home for an uncertain future after Syria's civil war broke out. Since fleeing Syria, Zaza has lived in Lebanon, Egypt, Jordan and now Turkey where his latest exhibition, “Earth is Blue like an Orange,” opened in Istanbul. He spoke with VOA about how being displaced by the Syrian civil war has affected the country's artists.
    Video

    Video Displaced By War, Syrian Artist Finds Inspiration Abroad

    Saudi-born Syrian painter Mohammad Zaza is among the millions who fled their home for an uncertain future after Syria's civil war broke out. Since fleeing Syria, Zaza has lived in Lebanon, Egypt, Jordan and now Turkey where his latest exhibition, “Earth is Blue like an Orange,” opened in Istanbul. He spoke with VOA about how being displaced by the Syrian civil war has affected the country's artists.
    Video

    Video Ethiopia’s Drought Takes Toll on Children

    Ethiopia is dealing with its worst drought in decades, thanks to El Nino weather patterns. An estimated 10 million people urgently need food aid. Six million of them are children, whose development may be compromised without sufficient help, Marthe van der Wolf reports for VOA from the Metahara district.
    Video

    Video Little Havana - a Slice of Cuban Culture in Florida

    Hispanic culture permeates everything in Miami’s Little Havana area: elderly men playing dominoes as they discuss politics, cigar rollers deep at work, or Cuban exiles talking with presidential candidates at a Cuban coffee window. With the recent rapprochement between Cuba and United States, one can only expect stronger ties between South Florida and Cuba.
    Video

    Video California Republicans Weigh Presidential Choices Amid Protests

    Republican presidential candidates have been wooing local party leaders in California, a state that could be decisive in selecting the party's nominee for U.S. president. VOA's Mike O’Sullivan reports delegates to the California party convention have been evaluating choices, while front-runner Donald Trump drew hundreds of raucous protesters Friday.
    Video

    Video Kurdish Football Team Helps War-Torn City Cope

    With the conflict still raging across much of Turkey’s predominantly Kurdish southeast, between the rebel PKK and the Turkish state, many Kurds are trying to escape the turmoil by focusing on the success of their football team Amedspor in Diyarbakir. The club is increasingly becoming a symbol for Kurds, not only in Diyarbakir but beyond. Dorian Jones reports from southeast Turkey.
    Video

    Video ‘The Lights of Africa’ - Through the Eyes of 54 Artists

    An exhibition bringing together the work of 54 African artists, one from each country, is touring the continent after debuting at COP21 in Paris. Called "Lumières d'Afrique," the show centers on access to electricity and, more figuratively, ideas that enlighten. Emilie Iob reports from Abidjan, the exhibition's first stop.
    Video

    Video Pakistani School Helps Slum Kids

    Master Mohammad Ayub runs a makeshift school in a public park in Islamabad. Thousands of poor children have benefited from his services over the years, but, as VOA's Ayesha Tanzeem reports, roughly 25 million school-age youths don't get an education in Pakistan.
    Video

    Video Florida’s Weeki Wachee ‘Mermaids’ Make a Splash

    Since 1947, ‘mermaids’ have fascinated tourists at central Florida’s Weeki Wachee Springs State Park with their fluid movements and synchronized ballet. Performing underwater has its challenges, including cold temperatures and a steady current, as VOA’s Lin Yang and Joseph Mok report.
    Video

    Video Somali, African Union Forces Face Resurgent Al-Shabab

    The Islamic State terror group claimed its first attack in Somalia earlier this week, though the claim has not been verified by forces on the ground. Meanwhile, al-Shabab militants have stepped up their attacks as Somalia prepares for elections later this year. Henry Ridgwell reports there are growing frustrations among Somalia’s Western backers over the country’s slow progress in forming its own armed forces to establish security after 25 years of chaos.
    Video

    Video Documentary Tells Tale of Chernobyl Returnees

    Ukraine this week is marking the 30th anniversary of the world's worst nuclear accident, at the Chernobyl nuclear power plant. Soviet officials at first said little about the accident, but later evacuated a 2,600-square-kilometer "exclusion zone." Some people, though, came back. American directors Holly Morris and Anne Bogart created a documentary about this faithful and brave community. VOA's Tetiana Kharchenko reports from New York on "The Babushkas of Chernobyl." Carol Pearson narrates.
    Video

    Video Nigerians Feel Bite of Buhari Economic Policy

    Despite the global drop in the price of oil, Nigerian President Muhammadu Buhari has refused to allow the country's currency to devalue, leading to a shortage of foreign exchange. Chris Stein reports from Lagos businessmen and consumers are feeling the impact as the country deals with a severe fuel shortage.
    Video

    Video  Return to the Wild

    There’s a growing trend in the United States to let old or underused golf courses revert back to nature. But as Erika Celeste reports from one parcel in Grafton, Ohio, converting 39 hectares of land back to green space is a lot more complicated than just not mowing the fairway.

    Special Report

    Adrift The Invisible African Diaspora