Beyond Constitution Making

Beyond Constitution Making Experiences in Africa: Challenges and Prospects.
Text of keynote lecture delivered at the conference on constitutionalism in Southern Africa organized by the Southern Africa Research Institute for Policy Studies (SARIPS), Sheraton Hotel, Harare, Zimbabwe, July 24-27, 2000.  The views expressed in this paper are those of the author.
It is indeed an honor to be asked to deliver this keynote lecture at this very important conference on constitution making and constitutionalism in Southern Africa. Let me begin by declaring that I speak for myself as an African, an activist, and academic.  I would also like to congratulate the organizers, SARIPS for bringing together some of the best minds on the continent to deliberate on how the people can take back the initiative for determining how they wish to be governed.
It was only recently that we all began to subject the so-called third wave to critical evaluation.  While we all rejoiced at the liberalization of political spaces in Africa, we failed to take critical note of some trends and tendencies that now appear to be compromising the democratic project.  In the temporary excitement over the new and loud political gyrations of the so-called new democrats, we confused appearances with substance.  Of course, the visible involvement of Western governments, international NGOs, and the lending agencies in defining, shaping, and even implementing the liberalization agenda facilitated the encapsulation of the process and its reduction to procedural gyrations that failed to alter the structural foundations of the African predicament.  Indeed, the role of the West, even where it was well intentioned, failed to fully appreciate the history and historical experiences of Africa; the undemocratic distortions and disarticulations that negate democracy; the manipulation of the process by entrenched interests; and the essence of democratization and democratic transformation, as against mere liberalization and elections.  Perhaps the greatest crime of the donors and lenders against Africa and its transition from authoritarianism is in reducing African civil society organizations into externally focused, opportunistic, corrupt, and visionless agents for pursuing the tentative, tenuous, and limited agenda of “change” that has been externally packaged.
The consequence of the above is that we are only just discovering that many of our human rights organizations, prodemocracy groups, new political parties and so on are not really democratic; that they lack the capacity to push for true democratization; that women are still invisible in their structures; and that they lack ideological clarity, courage, and vision.  We are just beginning to realize that many of the so-called civil society groups were never really interested in change for transformation or true reformation, but were interested in change for restoration of a repackaged status quo.  Thus as soon as they captured state power, like the nationalists of the 1950s and 1960s, they whitewashed the instruments and structures of domination, marginalization, exploitation, and repression and continued with business as usual.  Many of the prodemocracy movements are dominated by old and outdate ideas and incapable of providing a formidable challenge to the discredited old guard of African politics.  As well, they are concentrated in the capital cities, exhibit a pathological fixation on the capture of raw power, and are better known to donors and Western governments than to their own peoples.  They shamelessly ape the prescriptions of the IMF and World Bank and lack ideological originality while they are quick to abandon declared objectives for a share of power with the “devils” they had been fighting.  Finally, they are unable to reach accommodation with each other hence the proliferation of political parties, prodemocracy movements, and presidential candidates.
You will agree with me that a close look at most of the countries where “change” had occurred as part of the so-called Third Wave would reveal a continuing process of violence, corruption, human rights abuses, skewed allocation of resources, harassment of social activists and academics, and subservience to foreign determined and dictated ideas especially from the multilaterals.  Most painfully, we would see not just the continuing oppression and exploitation of children, women, and the poor, but also the shameless mortgaging of Africa’s future to imperialist agents and agencies in the name of “political reform,” structural adjustment, or globalization.  Some of our so-called “enlightened”, “younger”, “educated”, and “revolutionary” leaders speak, sound, and look more like confused political thugs, crooks, and political opportunists of the worst kind ever imaginable.  To some, this might be harsh.  But tell me: how do we explain the lack of vision and political courage?  How do we explain continuing disregard and disrespect for women?  How do we understand continuing subservience to foreign dictated economic and political programs?  How do we explain the inability to build new networks, encourage new discourses, and commit society to the construction of new political values?  How on earth can we understand this tenacity to office and the privatization of power?  How do we explain the resort to war and other forms of violence within and across borders over mundane issues including personal egos?  Finally, how can we explain continuing corruption, mismanagement, inefficiency, concentration of resources in a few locations, the manipulation of ethnicity, language and identity, and the pathological fixation on raw power?  We have seen enough of the politics of illusion and the arrogance of power.  We have seen the trivialization of the rights of people: they give it on one platform and abridge it on another.  We have seen the arrogance of power: power that should belong to the people but now appropriated and privatized by one “big man” and his ethnic jingoists or cabal of crooks!  Many of our “radical” and “modern” leaders appear to be irrevocably bound to violence: how do you explain the ease with which “friends” and “comrades” degenerate into war as has been the case between Uganda and Rwanda, and Ethiopia and Eritrea!  This sort of irresponsibility that is costing already poor countries a lot of foreign exchange and innocent lives can no longer be tolerated.  It can be asserted that it is only the continuing courage and determination of civil society groups and leaders, especially movements of students, women, environmentalists, professionals, and human rights that has prevented the so-called new leaders from going overboard.  In this new democracy business, it is like political abracadabra: the more you look the less you see.  You are told today that democracy is the answer.  The very next day, you are told that democracy is alien, it has to be controlled, and you have to wait for the “big man” to approve when you can practice democracy!  Our people are voting without choosing and the corrupted, contaminated, and compromised political show is throwing up several democratic dictators!  To buy legitimacy for the reform process, especially to satisfy the new masters, Africa’s new leaders have tried to use a new approach to constitution making to redesign, redefine, repackage, and reallocate power.  Fortunately, in a handful of countries, constitution making has been used to promote a national rebirth, national education, mobilization, and healing.  It has been used to redefine the content and context of politics and to drastically attempt to empower hitherto marginalized and brutalized constituencies such as women and minorities.  How and why have they done this?
Background to Constitution Making
A critical by-product of the new processes and dynamics of power, politics and political contestations has been a renewed interest in constitutionalism and constitution making all over Africa.  Uganda, South Africa, Eritrea, Ethiopia, and Ghana have taken this process to the most admirable levels because of the PROCESSES they adopted.  Zimbabwe also adopted a process led approach and after several months of near meaningless gyrations in the wilderness of political conservatism, Nigeria has also adopted a consultative approach to reviewing its undemocratic 1999 constitution.   This renewed interest in democratic and participatory constitution making is directly linked to a new doctrine of political legitimacy that is emerging in Africa’s civil society.  This new doctrine is built around continental and international interests in, and commitments to the challenge of helping plural communities articulate collective national visions for designing and promoting democracy and democratic values.  It is also being used to mobilize the populace; resolve the legacies of dictatorship; and establish a new agenda for growth and development.  Constitution making is being used to articulate national dreams, educate the populace, draw attention to existing contradictions, and promote a new culture of tolerance, inclusion, participation, and democratization.  The new constitutions are now seen as road maps that define power and set out new or alternative political arrangements.  The constitutions also spell out the socio-economic, cultural and political rights of all citizens; reassure disadvantaged constituencies like women and minorities, and provide a political road map for a new generation of Africans as we move into the next millennium.  Finally, constitution making is being used as a powerful tool for engaging the contentious issues of ethnicity, language, gender, accountability, social justice, difference, and identity.  Unlike the colonially inspired constitutions of the 1960s, the new constitutions are directly addressing these questions.
While some issues as to process and procedure have been addressed in Uganda as evidenced in the admirable work of the Justice Odoki Commission and the promulgation of the 1995 Constitution, for many African countries like Nigeria, there are still serious questions to be answered.  Some of the questions that have come to determine the nature of the debate and politics on constitutional reform in Africa have included: Who should initiate the process of constitution making and on what terms?  What should be the minimum mechanisms and guiding principles for constitution making?  For how long should the process run?  Who selects the staff or leadership of the constitutional review commission? Should there be restrictions as to what the commission should cover?  What are the guarantees that what comes out of the process will be respected by those in power?  Is it possible to use the process to check the violent, irresponsible, and rapacious African military; corrupt and grossly inefficient public institutions; and the unstable, illegitimate, over-bloated, repressive, and non-hegemonic postcolonial state.
The Postcolonial State and Constitution Making
Constitutions are by no means a new phenomenon in African politics.  Even the Apartheid state had a constitution.  General Sani Abacha of Nigeria, Idi Amin of Uganda, Jeane Bedel Bokassa of the Central African Empire (now Republic), and Marcias Nguema of Equatorial Guinea as well as Gnasingbe Eyadema of Togo all have or had constitutions in one form or the other.  But as we all know, these so-called constitutions were not even worth the paper on which they were written.  More importantly, though some of them could claim (ed.) to be legal documents, they are/were certainly not legitimate.   In fact, the so-called constitutions were instruments for terrorizing the poor and weak, legitimating corruption and the privatization of the state, and rationalizing the suffocation of civil society and subservient relationships with imperialism.
Why were these early constitutions illegitimate even if legal?  The truth is that they were not compacted through a truly open and democratic process that paid attention to the dreams, pains, and aspirations of African people, their communities, and constituencies.  In fact most of these were directly imposed constitutions or elite-driven processes that treated the people and their ideas with disrespect, if not contempt.  The hallmark of imposed constitutions is that they are never subjected to popular debates or referenda.  If at any point the constitutions were subjected to public debates, such debates were often brief, carefully monitored and manipulated.  The documents, either in draft or final forms, were never made available to the people.  If referenda were called, the results were rigged in favor of the state and its custodians.  In some cases, the reports of constitutional commissions were simply ignored after elaborate ceremonies aimed at diverting public attention and convincing donors and the international community that something positive was being done about democracy.  In Nigeria, not only were general and presidential elections conducted without a constitution, but also the draft was never widely debated, seen or voted upon by the people.  Even after the presidential election, the government continued to keep the constitution a secret and away from the Nigerian people.  In an open demonstration of military arrogance and insensitivity to the popular will, the General Abdulsalami Abubakar junta refused to release the constitution even after the military ruling council spent three days “putting finishing touches” to what was supposed to be a peoples’ document.  The illegal junta then promulgated a decree to give legality to the document.  This is hardly the way to lay the foundation for a democratic project.  Such arrogance of power and disrespect for the popular will simply widens the already wide gap between the state and civil society, and between the government and the governed.  It is not surprising therefore that constitutions in postcolonial Africa have never enjoyed widespread acceptability.  This lack of acceptability mediates their utility as veritable weapons to be deployed in the defense of the democratic project.
In the process of reviewing their constitutions, largely as a result of courageous and costly pressures from civil society working across ethnic, regional, religious, and other primordial lines, African leaders have adopted all sorts of tricks and underhand strategies to retain power or mediate the impact of popular demands.  These have included:
1)constitutional conferences with full sovereign powers as in Benin Republic;
2)Constitutional conferences that were packed with agents of the state as in Mobutu’s Zaire;
3)Constituent Assemblies packed with nominated representatives and persons elected under questionable or unaccepted conditions as in General Sani Abacha’s Nigeria;
4)Constitutional Review Commissions with terms of reference designed and determined by the state and aimed at reaching conclusions favorable to the state as in Nyerere’s Tanzania and General Abubakar’s Nigeria;
5)Constitutional commissions with clear efforts to tinker with the constitutions in a way designed to deal with specific problems and political “enemies” of the president as in Chiluba’s Zambia;
6)Constitutional amendments that seek to re-establish state legitimacy while actually  strengthening it vis-à-vis civil society as in the case of Algeria;
7)Tentative but carefully programmed and very slow concessions to constitutional reforms aimed at making no concrete changes in the constitutional compacts as in Moi’s Kenya; and
8)Constitutional processes designed to bring about a new constitutional contract between the state and the people based on past experiences and aimed at a new political environment to promote democracy and democratic values as in Eritrea, Ethiopia, Uganda, Ghana, and South Africa.
To be sure, even the last form of constitutional process is hardly perfect.  It contains several imperfections, contradictions, and several avoidance mechanisms.  These are provisions that attempt to dodge critical questions of political arrangements such as federalism or unitarism as in South Africa; fiscal federalism or fiscal unitarism as in Nigeria; multiparty or movement system as in Uganda; and dual citizenship or monocitizenship as in Ghana.  But whatever the situation, these new brand of constitutions and the process that culminated in the final enactment have had the courage to raise and address new issues that if sustained and built-upon, would significantly extend the frontiers of democracy and work to consolidate Africa’s democratic rebirth.
Women in the Ugandan Constitution
Uganda interestingly ranks among only a handful of African nations that have not tried to hide the rights of women under broad and dubious provisions in national constitutions.   Some African constitutions such as in Nigeria do not even bother to address the woman question.  Under the National Objectives and Directive Principles of State Policy, the Ugandan Constitution in Section VI requires the state to “ensure gender balance and fair representation of marginalized groups on all constitutional and other bodies.”  It does not define in exact terms what “balance” means and also fails to explain the meaning of “fair representation.”   There is no timetable or clear basis for measurement of progress.  In Section XV, the constitution requires the state to “recognize the significant role that women play in society.”  This is rather too broad.  But what exactly does “recognize” mean?  Acknowledge it?  Announce it?  Talk about it?  Reward the role of women?  Is this a grant or some special gift from the state and its custodians?  Chapter Four, Section 33 (1-6) address the rights of women: they are to be “accorded full and equal dignity of the person with men;” they are to be provided with “the facilities and opportunities necessary to enhance” their welfare to “enable them to realise their full potential and advancement;” and in view of the “natural maternal functions” that women perform, the state commits itself to protecting “women and their rights.”  In addition, the Constitution guarantees the right to equal treatment with men including “equal opportunities in political, economic and social activities.”  It prescribes a “right to affirmative action for the purpose of redressing the imbalances created by history, tradition or custom.”  Finally, the Constitution is direct in articulating the position that “Laws, cultures, customs or traditions which are against the dignity or interest of women or which undermine their status, are prohibited by this Constitution.”  In Section 40 (4) employers are required by the Constitution to guarantee protection during and after pregnancy to women.  There are other bits and pieces here and there in the Ugandan constitution that directly and/or indirectly engage or address the rights of women.  Compared to many African countries such as Nigeria, this is a very radical Constitution.  For whatever it is worth, you have a president who does not abuse women and call women activists prostitutes; you have a woman vice-president; the number of women in parliament is not excellent but fair; you have an Affirmative Action Policy; and you have a ministry for gender and social development.  As we have come to experience tough, these have remained, in large measure, mere constitutional provisions.  Some laws have been abrogated, some institutions established, and a few policies initiated.  But at a fundamental, institutional, and structural level, Uganda is still a very much male-dominated society.  This is so for several reasons:
a). The character of the Ugandan state as a political structure designed to serve the interests of men and the country’s largely unproductive, dependent, corrupt, and non-hegemonic elite has not changed in spite of the NRA’s victory and the NRM’s rule;
b).  Our values and cultures are still patriarchal, backward, conservative, and exploitative, even if we refuse to accept this reality.
c). The educational system is still outrightly neo-colonial.  Education is not for liberation and service but for domination and exploitation.
d).  Uganda is still a neo-colonial social formation dominated by powerful profit and hegemony-seeking transnational corporations with the interests of the metropole as priority;
e). There is nothing in the Constitution that represents a major revolutionary attack at the institutions, structures, and locations that perpetuate female disrespect, oppression, and exploitation.
f). The Ugandan media is still very complacent on gender, especially women’s issues.  It reports violence against women, defilement, incest, and so as general interest stories; and
g). The very same persons, regulations, institutions, and individuals that constructed the existing conditions of female domination, exploitation, abuse, and marginalization are being expected to voluntarily dismantle the environment and processes that guarantees their worth, status, and accumulative patterns.
In sum therefore, Uganda, like most African states, still has a very long way to go to structurally or fundamentally alter the oppressive conditions in which our women live and work.  In The New Vision of September 29, 1999, there were four reports on defilement including one of a 3 month old baby (pps. 4, 23, 37, and 39); one report of rape (p.42); and one complaint about obscene media language that degrade women (p.15).  The real issue therefore is not just the making of a constitution, but what happens after it has been made and how we translate lofty provisions into reality.  I realize that there are experts here that would be dissecting these issues in the next couple of days.
Beyond Constitution Making: What Next
If Africa’s democratic projects are to survive, the participatory approach to constitution making must be adopted.  It is clearly the only way to mobilize and educate the people, construct alternative democratic platforms, acknowledge primordial identities and pluralism, and construct much needed platforms of inclusion, tolerance, and participation.  The process of constitution making is critical to the strength, acceptability, and legitimacy of the final product.  In fact, by involving the people and their communities, they understand the document, its importance, and its relevance to the larger democratic process.  Having made the constitution, the question, is what next?
The real challenges here include the following:
1). Availability of the constitution to all citizens.  There is absolutely no reason why citizens should pay for or buy the constitution.  Any attempt to sell the constitution is a direct effort at subverting it by keeping it away from the people.  All citizens should have a right to a copy of the constitution.
2). Does the Constitution contain institutions for translating, mass-producing, distributing, and teaching it to the people?  The Uganda Human Rights Commission does this here.  The National Commission for civic Education does this in Ghana and the Department of Constitutional Development performs these functions in South Africa.  This is not an issue in Nigeria!
3).  Are there direct and deliberate efforts and programs to make the constitution a living document, the “main document in town,” the basis of determining relations within and between constituencies, and encouraging the citizenry to deploy the constitution in the protection and defense of individual and collective rights.
4). Is the state (especially the Judiciary, Legislature, and Executive) OPENLY committed to using the constitution as the basis of governance, protecting the weak and rectifying decades of oppression and injustice.
5). What are the specific and broad provisions on minorities, language, women, the disabled, children, rural areas, devolution of power, social justice, human rights, and participation and are these provisions justiciable?  How committed is the state to their implementation?
6). Are there democratic mechanisms for a regular monitoring, review or amendment of the constitution in the larger interest of democratic participation and consolidation?
These are ultimately the issues that must transcend the PROCESS and determine the content and context of democratization as well as the larger project of democratic consolidation.  Unfortunately, most African countries, including Uganda have not done too well in the process of post-constitution making experiences.  Let us conclude by looking at the case women in the broader African context.
Women and Constitutionalism in Africa
African women represent the most marginalized, dominated, exploited, and disrespected constituency in Africa: precolonial, colonial, and contemporary.  This is painful and unfortunate given their critical importance to the continent’s survival.  While it is important to give a dialectical and holistic approach to gender, recognizing that there are progressive men and reactionary, even dangerous women, on the aggregate, women have borne the brunt of the irresponsibility, mismanagement, and misguided egos of Africa’s male chauvinists and patriarchal communities.  Of course, whether educated or not, young and old, the men have found a lot in our traditions and cultures to rationalize and legitimate the marginalization of women from power and decision-making, and to justify their exploitation and sexploitation of women.  In fact, the most shameful aspect of the woman question is in the active and shameless connivance of African governments in the brutalization of our womenfolk who are seen as objects of exploitation rather than objects of participation in the so-called nation-building (even constitution making) process.  Thus today, in spite of vitriolic and suffocating propaganda by African leaders, several UN Decades for women, countless conferences organized by the UN, OAU, ECA, World Bank and other NGOs, the lot of African women can hardly be said to have improved.  To be more direct, African leaders have signed several declarations and conventions as well as charters and communiqués on women only to return home and water down the agreements, turn a blind eye to the abuse of women, ignore constitutional protection for women, and even engage in tokenist politics evidenced in the appointment of women to visible but ceremonial and powerless positions.
The new participatory constitution making approach has created opportunities for women’s issues to be articulated, debated, and incorporated in constitutions.  This is evidenced in special provisions on women, affirmative action, rights, and special commissions.  NGOs representing women have been able to capitalize on political liberalization and the debates on new constitutions to highlight the marginalization of women, negative cultural practices that pull women back, and laws in existing constitutions that work against the rights of women.  However, though some gains have been made especially in South Africa, the constitutions have frequently fallen short of rectifying decades of abuse and neglect.  The women’s groups have been less effective because they all started off from disadvantageous positions; fighting against a largely insensitive and ignorant society; and working to change centuries of male-dominated patterns of power, politics, and resource allocation from which they were already shut out.  Consequently, even the new constitutions have not been as radical as they should or ought to be in examining the roles of women in society; their participation in politics; their place in decision making; how they have been treated historically; their lack of access to central economic activities as against subsistence farming and petty trade; their low or marginal social status in society; and existing structures and institutions of domination and marginalization that have worked against women.  Though the new constitutions contain elaborate human rights provisions even socio-economic and cultural rights, they are either non-justiciable or not enforced by the state.  Thus all the prescriptions from the countless declarations and conventions, including the famous Beijing positions on equal opportunities for women, access to credit, education and training, expanded participation in all spheres of society, access to leadership positions, elimination of traditions/cultural stereotypes, termination of sexual division of labor, improvement to health facilities, programs for scientific education for women, elimination or at last the reduction of the domestic responsibilities of women, job security and institutional platforms such as ministries, monitoring units, and commissions to monitor and advance the place of women in the society have not been seriously implemented in ANY African country including Uganda.   The documents are not even available to women and their groups.  Practically no effort is made by our usually extravagant governments to translate and teach the documents so that our women can deploy them to advance their rights.  Patronizing and condescending approaches are adopted that give the impression that it is the good nature or benevolence of the president and his wife or wives that is making concessions to women in the country.  Violence against women is blamed on alcohol or some foreign scapegoat and on the victims of the violence.  At best, a desk or unit is created in the president’s office or kitchen to handle women’s affairs directed by some backward, tired, and totally reactionary character that could be relied upon to subvert the cause of women.  Worse still, most African leaders have not seriously and vigorously addressed the vulnerability of women to crippling and deadly diseases such as AIDS/HIV; female genital mutilation, child abuse practices such as incest, child marriages, rape, forced prostitution, subtle cultural discrimination, and the general lack of societal respect for women.  Some African presidents have been known to specialize in the importation of foreign commercial sex workers at great cost to the national economy!  Where some policies have been developed they have been post hoc, uncoordinated, poorly funded, dependent on unpredictable donor funding, and have never been treated as priority.  Our leaders, policy makers, academics, and traditional rulers continue to rely on opportunistic, superficial, and diversionary strategies for reproducing a status quo that would ultimately destroy our communities, values, and countries.  Our first ladies, with no record of activism in civil society, with a superficial understanding of gender issues, and steeped in the arrogance of power constructed by their spouses, become active once they get to power on some of these issues.  As soon as they leave office or are forced out of office as is often the case, they promptly turn their backs on women’s issues and become contractors, land speculators, and part of the oppressive machine that threatens to destroy our continent.  This story of betrayal, disrespect, domination, marginalization, abuse, and shameless exploitation of African women can go on, and on, and on.  What should be done?
Constitutions MUST contain a comprehensive Bill of Rights that is justiciable.  Institutions that will monitor and ensure that guaranteed rights are enjoyed must be included in the constitution.  Special commissions on women must be included in the constitution.  Adequate affirmative actions programs, with time lines if necessary, must be written into constitutions to rectify decades of abuse.  Special provisions must be made for children especially female children to protect their psychological build-ups being destroyed early.  Laws that discriminate against women must ALL be expunged from our law books.  Clear sanctions, counseling, and rehabilitation facilities must be available to those that engage in all forms of violence against women.  Special quotas with time limits pending actualization must be constitutionally guaranteed.  There is no reason why women cannot occupy half of cabinet positions and why ministries of defense, finance, foreign affairs, science and technology and so on cannot be occupied by women.  All African states must have a ministry of women affairs with the head nominated or elected by Women’s NGOs.  Our schoolbooks must be reviewed and rewritten to expunge all anti-women language and content. Women should be given positions of responsibility early in life.  Cultural institutions that work against women should be reformed, encouraged to reform themselves, or confined to museums and history books.  The world is changing and they must change.  Women’s NGOs must be encouraged and supported to operate independently and assist with the process of societal reeducation and renewal. Current custodians of state power, especially in the judiciary must be retrained and reeducated on gender sensitivity while national planning, policies, and politics must reflect a progressive ender culture.  For instance, public budgets must be analyzed to see their differential effects on children, women, and the elderly.  We cannot continue to allocate huge sums of money to projects that end up in strengthening the unequal and unjust status quo.  Women’s groups should draw up a “National Dishonor List” for decision-makers that work against women and for leaders that fail to implement global, continental, and national resolutions on gender equality.  Such a Dishonor List should also be drawn up continentally and published annually through international agencies and the Internet.  The bottom line is that any government that does not openly, robustly, and stringently work to uplift the conditions of women, eradicate injustices, build new platforms of equality, participation, and democracy cannot hope to really survive the next millennium.  The constitution represents a starting point.  The real challenge is how we join hands to work together in the interest of our nations and continent so that we are no longer seen as the most backward, most underdeveloped, most disarticulated, least industrialized, most debt-ridden and debt-distressed, continent with the most AIDS victims, most refugees, most wars, and most useless governments run by lunatics that parade themselves as leaders on the eve of the twenty-first century.
I thank you all for your patience.