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