Constitutionalism and Democratic Governance in Africa: Contemporary Perspectives from Sub-Saharan Africa

Morris Kiwinda Mbondenyi, Tom Ojienda

Description

Adieu, Steve: Tribute to a scholar of African constitutionalismThis volume of essays on constitutionalism in Africa is devoted to the memory of Steve Odero Ouma, who spent most of his professional life working on these issues. He was a colleague and friend to many of the contributors to this volume, and no doubt to many of its actual and potential readers. Steve passed away on 23 February 2012.This publication is a collection of essays written mainly by graduates of the Master’s Programme in Human Rights and Democratisation in Africa.(One of the authors, Mwiza Jo Nkatha was one of Steve’s class mates in 2005.) The only exception, Professor Kofi Quashigah, is the Dean of the Faculty of Law, University of Ghana, at Legon, Accra. My sincere thanks and congratulations go to each of these contributors for their pointed and important contributions to this volume. I should mention here that the University of Ghana is one of the twelve partner universities in the programme. The other partner faculties are: the University of the Western Cape (South Africa); the University of Venda (South Africa); Makerere University, Uganda; the University of Ghana, Ghana; the University of Lagos, Nigeria; Université Gaston Berger, Senegal; the University of Abomey Calavi, Benin; Catholic University of Central Africa, Cameroon; Universidade Eduardo Mondlane, Mozambique; Addis Ababa University, Ethiopia; University of Mauritius, Mauritius; and American University, Cairo, Egypt.The editors are two prominent Kenyan academics, Dr Morris Kiwinda Mbondenyi, Senior Lecturer in Law, Africa Nazarene University and Professor Tom Ojienda, Associate Professor of Law, Moi University. I would like to thank them, in particular, for their hard work and dedication in bringing this work into being. They oversaw the peer-review process, and worked with individual authors.It should certainly also be mentioned that Steve Odero conceived of and initiated the idea of this book, together with the two editors, and walked some distance on the road towards this publication. Sadly, it was a road not completed, due to Steve’s sudden death. I am sure Steve would have wanted these pages to take us all along a journey he embarked on, but could not complete: the unfinished journey to secure genuine constitutionalism in states across Africa.Frans ViljoenDirector, Centre for Human RightsAbout the editors:Dr. Morris Kiwinda Mbondenyi is a Senior Lecturer in Law and the Head of the Africa Nazarene University Law School, Kenya.Tom Ojienda is Associate Professor of Law at Moi University, Kenya.

Sujets

• Desierto del Sahara
• Sahara
• Géopolitique
• Développement
• Relations internationales
• Politics
• développement
• Economie

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2013
• Nombre de lectures: 2
• EAN13: 9781920538149
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Constitutionalism and Democratic Governance in Africa: Contemporary Perspectives from Sub-Saharan Africa

Morris Kiwinda Mbondenyi (LLD, LLM (UNISA), LLB (Moi)) Senior Lecturer in Law, Africa Nazarene University

Tom Ojienda (LLD (UNISA), LLM (Kings College), LLB (Nairobi)) Associate Professor of Law, Moi University

with the assistance of Thuto Moratuoa Hlalele Centre for Human Rights, Faculty of Law, University of Pretoria

2013

Constitutionalism and democratic governance in Africa: Contemporary perspectives from Sub-Saharan Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights Photograph: ‘Nothing is set in stone’ by O.F.E. on Flickr

ISBN: 978-1-920538-14-9

© 2013

TABLE OF CONTENTS

FOREWORD AND DEDICATION

CONTRIBUTORS

PART I: GENERAL THEORETICAL PERSPECTIVES Introduction to and overview of constitutionalism 1 and democratic governance in Africa Morris Kiwinda Mbondenyi and Tom Ojienda 1 Introduction 2 Overview of the book 2.1 General theoretical perspectives 2.2 Perspectives on constitutionalism, constitution- making and constitutional reforms in Africa 2.3 Perspectives on democratic governance in Africa

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PART II: PERSPECTIVES ON CONSTITUTIONALISM, CONSTITUTION-MAKING AND CONSTITUTIONAL REFORMS Tanzania’s experience with constitutionalism, 2 constitution-making and constitutional reforms Benedict Maige Nchalla 1 Introduction 15 2 Tanzania: An overview of the political system 17 3 Conceptualisation 19 3.1 Constitution 19 3.2 Constitutionalism 21 3.3 Constitutional reform versus constitution-making 23 4 Constitution-makingvis à visconstitutionalism in Tanzania: How far? 24 5 Constitution-making in Tanzania: A glimpse of the historical backdrop 26 5.1 Independence Constitution of 1961 26 5.2 Republican Constitution of 1962 27 5.3 Union between Tanganyika and Zanzibar of 1964 28 5.4 Constitution of the United Republic of Tanganyika and Zanzibar of 1964 31 5.5 Interim Constitution of Tanzania of 1965 31 5.6 Constitution of the United Republic of Tanzania of 1977 33 6 Administration of justice as regards constitutionalism in Tanzania: A glance 35 7 Constitution reform: Is there a choice not to change the 1977 Grundnorm? 41 8 Features of an effectual and inclusive constitutional reform process 42

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A new (legitimate) constitution in Tanzania: A people’s appeal The constitutional review Act 2011: A knock at the door Conclusion

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From the ‘TPLF Constitution’ to the ‘Constitution of the people of Ethiopia’: Constitutionalism and proposals for constitutional reform Adem Kassie Abebe 1 Introduction: The genesis of constitutionalisation in Ethiopia 51 2 The making of the Federal Democratic Republic of Ethiopia (FDRE) Constitution: Its inclusiveness and some implications 54 3 Constitutionalism: Constitutional principles and compliance 57 3.1 Decentralisation 58 3.2 Sovereignty of the nations, nationalities and peoples (ethnic groups) 60 3.3 Human and democratic rights 62 3.4 Transparent and accountable government 67 3.5 Separation of state and religion 69 4 Major factors that have hampered constitutionalism and constitutional development 70 4.1 Increasing authoritarianism and the party-state conflation 71 4.2 Lack of independent and reliable constitutional adjudication system 74 5 Proposals for a possible constitutional reform agenda 79 5.1 Parliamentary versus presidential form of government 80 5.2 The first-past-the-post electoral system 81 5.3 Term limits on the position of the Prime Minister 81 5.4 Changing the constitutional adjudication system 83 5.5 Public ownership of land 83 5.6 Abolishing or empowering the Office of the President? 84 6 Concluding remarks 85

Constitution-making in Eritrea Simon M Weldehaimanot 1 Introduction: Higher law and fine-tuning 2 Contestation in Eritrea: Amendment against new constitution-making 3 Abrogation of the 1952 Constitution and the notion of a higher law 3.1 The 1952 Constitution on amendments 3.2 Amendments sought and their legality 3.3 The federation: a delicate balance 3.4 Lack of arbiter in the constitutional design 4 The trashing of the 1997 Constitution

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4.1 The eagerness to write yet a new constitution 4.2 Transition and the permanent constitution under the Accord 4.3 Distinction between adopting and amending a constitution 4.4 Opposition politicians and living with an independent judiciary Conclusion

Constitutionalism and constitutional reforms in Ghana Kofi Quashigah 1 Introduction 2 The period between independence and the eve of the 1992 Constitution 2.1 The search for an acceptable executive system 2.2 Protection of fundamental human rights and freedoms 2.3 The 1969 constitutional period 2.4 The incidence of militarycoups d’etat 2.5 The 1979 Constitution 3 The 1992 Constitution 3.1 Supremacy of the Constitution 3.2 The guarantee of public elections 3.3 Human rights and fundamental freedoms 3.4 The judiciary under the 1992 Constitution 3.5 The legislature 4 Proposed reform of the 1992 Constitution 5 Conclusion

The dawn of constitutionalism in Nigeria Diala Anthony Chima 1 Introduction 2 Constitution-making and review in Nigeria: 1960 – 1999 2.1 The 1960 Independence Constitution 2.2 The 1963 Republican Constitution 2.3 Military rule: 1966 – 1999 2.4 The 1979 Constitution 2.5 The 1999 Constitution 3 The legitimacy of the 1999 Constitution 4 Conclusion

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118 121 123 125 128 126 129 129 129 130 131 134

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136 137 139 141 144 153 157 160

A Federal Constitution devoid of constitutionalism: The case of Cameroon Chofor Che Christian Aimé 1 Introduction 163 2 The colonial history of Cameroon from 1884 to 1960 163 2.1 Introduction 163 2.2 Cameroon under German colonial rule 164 2.3 Cameroon under British and French colonial rule 165

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2.4 The independence and reunification of Cameroon 170 An analysis of constitutionalism under the 1961, 1972 and 1996 Constitutions of Cameroon 172 3.1 The 1961 Federal Constitution 172 3.2 The 1972 Constitution 178 3.3 The 1996 Constitution 182 Towards effecting constitutionalism in Cameroon 188

Pre-independence constitutions, participatory constitution-making and constitutionalism in Africa: The case of Botswana Bonolo Ramadi Dinokopila 1 Introduction 191 2 The history and making of the Constitution of Botswana 192 2.1 Constitutional review: The Lobatse conference 196 2.2 Second round of constitutional talks: The London conference 199 2.3 Botswana’s 1966 Republican Constitution 202 3 Understanding Botswana’s constitution-making process and its impact on constitutionalism 206 4 Post-independence: Calls for a constitutional review take centre stage 212 5 Conclusion 215

Popular involvement and constitution-making: The struggle towards constitutionalism in Malawi Mwiza Jo Nkhata 1 Introductory remarks 2 Of constitutions and constitution-making 2.1 Making a ‘perfect’ constitution 3 The crafting of constitutions in Malawi 3.1 The 1964 Constitution 3.2 The 1966 Constitution 3.3 The 1994 Constitution 4 Popular involvement and constitution-making in Malawi: Lessons from the Malawian experience 5 Constitution-making and constitutionalism in Malawi 6 Final remarks

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PART III: PERSPECTIVES ON DEMOCRATIC GOVERNANCE Between presidentialism and a human rights 10 approach to constitutionalism: Twenty years of practice and the dilemma of revising the 1990 Constitution of Benin Horace Sègnonna Adjolohoun 1 Introduction 245 2 From constitutional instability to an African Charter-based Constitution 247

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Main features of the 1990 Constitution 249 3.1 Fundamental principles of the Constitution 250 3.2 Fundamental rights’ protection in Benin’s Constitution of 1990 252 Separation and distribution of powers 255 4.1 Strong presidential Executive: ‘Presidentialism’? 256 4.2 The Parliament 257 4.3 Judicial ‘power’ versus judicial ‘authority’ 261 Challenges brought by the Constitution in action 263 5.1 Blurring boundaries to separation of powers: Executive’s supremacy 263 5.2 Development and interpretation of the Constitution 270 Dilemmas of whether, when, what and how to revise 280 6.1 ‘Do not touch my Constitution’: Opportunistic or progressive revision? 280 6.2 Stronger Executive for socio-economic development? Dilemmas of a revision 284 Conclusion 288

From military rule and no party state to multi-partism in Uganda Christopher Mbazira 1 Introduction 2 The history of political parties in Uganda 2.1 Pre-independent Uganda 3 The no-party movement state 4 Confronting the irresistible winds of change 4.1 Multi-party politics after the lifting of the ban 4.2 The lack of political will 5 Conclusion

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Constitutional governance, democratisation and military legacies in post-independence Nigeria Dejo Olowu 1 Introduction 315 2 Nigeria: A panoramic overview 316 3 Governance, constitutionalism, and democratisation: Reflections on the African scenario 318 4 Nigeria’s evolutionary processes in constitutional governance and democratisation: The military dimension 322 5 Consolidating constitutional governance through the democratic process in Nigeria: Facing the future 331 6 Conclusion 335

From military rule to constitutional government: The case of Nigeria Ademola Oluborode Jegede 1 Introduction

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Military rule in Nigeria: Heritage of stigmatised features 339 2.1 Tainted separation of powers 339 2.2 Eroded devolution of powers 341 2.3 Poor human rights record 342 Constitutional culture post-1999: From stigmas to what? 345 3.1 Separation of powers 346 3.2 Devolution of power 350 3.3 Human rights compliance 351 The future of constitutional government 353

BIBLIOGRAPHY

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FOREWORD AND DEDICATION

Adieu, Steve: Tribute to a scholar of African constitutionalism

This volume of essays on constitutionalism in Africa is devoted to the memory of Steve Odero Ouma, who spent most of his professional life working on these issues. He was a colleague and friend to many of the contributors to this volume, and no doubt to many of its actual and potential readers. Steve passed away on 23 February 2012.

Steve’s professional life

Steve Odero Ouma was born in Kenya and lived most of his life there. Steve completed a Bachelor of Laws degree at the University of Nairobi in Kenya, before enrolling for the LLM (Human Rights and Democratisation in Africa), presented at the Centre for Human Rights at the University of Pretoria, in 2005. His Master’s dissertation titled ‘Federalism as a peace- making device in Sudan’s Interim National Constitution’. Steve graduated from the programme in December 2005. As part of that year’s programme, students undertook a field trip to Sierra Leone. I was fortunate enough to accompany this group. On this trip, I got to know Steve as someone who could be playful and mischievous but he was also extremely serious about issues affecting our continent, and was an inquisitive, determined and dedicated student. In 2011, the Centre for Human Rights invited Steve back to Pretoria, to teach part of the ‘democratisation’ element of the LLM programme. The very favourable student assessment (a score of 98% from the class) is evidence of his knowledge of the field and his outstanding qualities as a teacher.

After completing his LLM at the Centre, Steve was awarded a bursary to undertake doctoral studies (in Political Theory) at the Luiss University of Rome, in Italy. By focusing on the challenges to constitution-making in Africa in his thesis (‘Constitutional mechanisms for the management and settlement of identity conflict: The cases of Sudan, Kenya and Somalia’, see website http://eprints.luiss.it/997/1/20110621-odero-ouma-tesi.pdf), Steve was one of the alumni who took the ‘democratisation’ part of the LLM programme to heart. Having completed his studies, Steve obtained his LLD in 2011.

Steve also worked on several projects as a researcher, and taught at the School of Law, Jomo Kenyatta University in Nairobi, Kenya; the Africa Nazarene University, Kenya; and the University of Pretoria, South Africa. At the Institute for Diplomacy and International Studies, University of Nairobi, Dr Odero served as a PhD research associate where he worked on the prospects of autonomy as an antidote for clanism in Somalia. At the Amnesty International United Nations Office in New York, he conducted research on the responsibility of United Nations peacekeepers for allegations of violence and sexual exploitation of women and children. His research interests included criminal law, post-colonial political philosophy, international law and relations, conflict resolution, good governance and democratisation in Africa, constitutional law and anthropology. Steve was admitted as an advocate in Kenya in 2007.

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Steve’s publications

One way of paying tribute to Steve, and to remember him, is by listening to his own words, as expressed in some of his publications. Steve’s voice has a very distinct ring, because he was both a lawyer and political scientist. Having been schooled in both international law and political science, Steve was able to provide a distinct academic vantage point. Positioned on the cusp of two separate disciplines, he was able to bring particular and very valuable insights. In one of Steve’s contributions (a chapter on the politics of international criminal justice and the International Criminal Court’s arrest warrant for President Al Bashir, contained in a collection of essays by alumni on criminal justice in Africa (‘Politics of international criminal justice: The ICC’s arrest warrant for Al Bashir and the African Union’s neo-colonial conspirator thesis’ in C Murungu and J Biegon (eds)Prosecuting international crimes in Africa 145 (Pretoria: PULP, 2011) he identified his own particular contribution to the debate exactly as a hybrid of law and politics (at 146):

The analysis is hybrid in nature, drawing from the disciplines of law and political science, and is therefore a challenge to lawyers, calling on them to unpack controversial factual issues and in so doing, add to their understanding of the complex non-legal factors that are at play in international criminal justice. Likewise, it is a challenge to political scientists to pay more attention to legal phenomena that are often at play and likely to influence political processes. It is only through a meeting of minds by scholars, practitioners and policy makers from these two fields that sound judgments grounded in law and political reality may be reached and successfully implemented.

Steve’s emphasis on the potential synergy and the added advantage of the one discipline (law) to the other (politics), and the other way round, made him a very strong proponent of a multi-disciplinary approach to the study of conflicts in Africa, and their effects, including criminal prosecution and their underlying causes.

Steve’sdeep concern for the underlying causes of conflict in Africa appears from his analysis in the article ‘Reflections on the causes of conflict in Africa: ethnicity or failure of leadership’ ((2005) 13International Law Students Association Quarterly25). As the title of his article suggests, he investigated ethnicity and the failure of leadership as major root causes of conflict. On the issue of ethnicity, he presented a nuanced view, underlining the following: ‘Ethnicity on its own is not a negative concept. Indeed the peculiar ways of dress, types of food and dance of a given group of people are in themselves not destructive.’ However, he added the following: ‘What is destructive is isolationist ethnicity carried out by those in authority and has been the cause of civil strife that characterizes Africa today.’ Underlining the importance of leadership, he continued in the following way:

A leader is instrumental in creating the mood, ideals and general character that prevails in his or her country at any given time. Where a leader not only speaks of reconciliation and unity, but also practices the same, then such practice spills over to the local populous and a mood of peace and sense of unity take centre stage. Where a leader engages in ethnic politics either by publicly denouncing an ethnic group or remaining silent upon such denunciation or condoning the practice of the same in institutions, he only creates an atmosphere of animosity between ethnic groups in his country and suspicion.

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His analysis in the article deals in more detail with the scourge of failed leadership:

African leaders have used use ethnicity to safeguard their own interests. This is evident from the account of the Rwandan genocide where a government supported and owned radio station was used to urge members of the Hutu to rise up against the Tutsi stating that it was only through their elimination that peace would prevail. Similarly in the Liberian conflict, the government of Charles Taylor succeeded in splitting the LURD rebel group along ethnic lines so as to minimize opposition to his rule. It is imperative that the cause of conflict in Africa be understood. Conflict occurs when there is a lack of effective leadership. Misapprehension of this reality has led to the employment of ineffectual policies and approaches to reconciliation hence the failure of many peace efforts. In this regard, whereas ethnicity or tribalism is a prominent feature in African conflicts, the cause of conflicts in the continent is multifaceted composing more than one factor. The principal factor behind these conflicts is simply and squarely a failure of leadership.

In his chapter inProsecuting international crimes in Africa,mentioned earlier, Steve dealt with the negative reaction from some African states, and the African Union, as a collective, to the indictment of Sudanese President Al Bashir to appear before the International Criminal Court. He deplored the deteriorating relationship between the Court and the AU in the following terms (at 159-160):

Even if extreme action, such as a withdrawal of ratifications or referrals of one or more African states parties, has not so far been taken, the damaged relationship between the Court and the AU may encourage countries on the continent to drag their feet in domesticating the Rome Statute. This is important because, out of 30 states parties from the continent, only Burkina Faso, Kenya, Senegal, South Africa and Uganda have so far passed implementing legislation. Furthermore, other African state parties may withhold their planned referrals and their planned ratifications. Improved relations, which can be achieved through an appreciation of the issues raised here, will in the long run embolden some countries (for instance Rwanda and Angola) which have vowed never to become part of the ICC. At the same time, the Court as a legal institution, whose very essence is to help build an international rule of law, must jealously guard its mission to ensure that it is not subverted, or perceived to have been subverted, as an instrument for great powers to target weaker states or defeat adversaries in less influential regions of the world.

Steve’s other publications include the chapter ‘The African renaissance and discourse ownership – challenging debilitating discourses on Africa’ in NM Creary (ed) (2012)African Intellectuals and decolonization.

This publication

This publication is a collection of essays written mainly by graduates of the Master’s Programme in Human Rights and Democratisation in Africa. (One of the authors, Mwiza Jo Nkatha was one of Steve’s class mates in 2005.) The only exception, Professor Kofi Quashigah, is the Dean of the Faculty of Law, University of Ghana, at Legon, Accra. My sincere thanks and congratulations go to each of these contributors for their pointed and important contributions to this volume. I should mention here that the University of Ghana is one of the twelve partner universities in the programme. The other partner faculties are: the University of the Western Cape (South Africa); the University of Venda (South Africa); Makerere University, Uganda; the University of Ghana, Ghana; the University of

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