Dismantling the Leviathan

Dismantling the Leviathan: Constitutionalism, Civil Society and the New Politics in Africa.
Being Text of Lecture at the New Hampshire International Seminar Series, University of New Hampshire, Durham, New Hampshire, April 3, 2002. The views expressed in this lecture are strictly those of the author.
Let me state from the outset that the most critical challenge facing Africa today is how to dismantle and reconstruct the non-hegemonic, oppressive, exploitative, insensitive and undemocratic state. Allow me therefore to spend a few minutes in painting a sharp picture of Africa’s history and historical experience and in particular, the construction of the African leviathan. The postcolonial state has been variously described as “criminal”, “overextended”, “overdeveloped”, “Vampire”, ”non-hegemonic”, “irrelevant”, and as “grossly incompetent”. These descriptions or labels are accurate. There is agreement across ideological divides that the state in Africa has done so much damage to the idea of nation building. In fact, the political landscape of Africa is littered with the unfortunate relics of broken dreams, broken promises, and betrayal of the popular will.

If I sound rather harsh in my judgements, it is because I represent a generation whose continent has been abused, looted, dominated, colonized, underdeveloped and marginalized in a very hostile capitalist dominated global divisions of labor and power. I belong to a generation whose past was wasted, whose present is riddled with poverty, pain, and uncertainty, and whose future has been mortgaged by the irresponsible and unholy alliance between foreign interests and a tiny class of so-called leaders. I represent the vast majority of Africans who have hoped against hope since the late 1950s for democratic rule, a better life, respect for pluralism and social justice. My generation saw vast resources, unbounded energies, creativity, sacrifices, and trust frittered away in the irrational vortex of waste, mismanagement, corruption, foreign exploitation, and cold war politics. We saw the deliberate and shameless subversion of democratic ideals and possibilities for development. Today, the humiliation of my generation at foreign embassies, border posts, immigration offices, foreign banks and in dealings with foreign governments and businesses is acutely embarrassing. The denigrated and devalued image of Africa in the international media is largely the product of the actions of extant state structures, the custodians of state power and their foreign collaborators. Allow me to point out that the root of Africa’s problems lie in how the state was constructed; the nature and character of its custodians; the negative politics and crude power balances that contribute to the articulation of so-called public policy; and the general inability of the power elite to develop a sense of nation and a national project. The African elite has become obsessed with the “power project” not for promoting growth and development but for inflicting pain and misery on the peoples of the continent.

History and the Construction of the Foundations of Depoliticization and Oppression

The culture of misrule that followed political independence all over the continent subverted the ideals of the nationalist struggles. Today, the inherited legacies of devastating colonial domination and exploitation continue to have far-reaching implications for contemporary power balances, politics, and policies. Political independence in Africa did not witness the dawn of democracy and political responsibility. Even in those countries where independence came through a revolution, constraints arising from dependence, underdevelopment, and cold war politics made it virtually impossible to build true democratic structures, cultures, and processes. Angola is one such country where political independence from a brutal Portuguese regime encouraged Western support for Jonas Savimbi’s rebel movement that continues to destabilize the economy, his recent demise notwithstanding. In a country like Zimbabwe, a compromised independence negotiation with the British mediated the ability of the post-colonial government to redistribute land and promote transparent governance. Today, ordinary Zimbabweans are paying for this costly miscalculation. Thus, in virtually all African social formations, the distortions and disarticulations of the colonial experience and the constraints of neo-colonial underdevelopment and dependence ensured that the opportunity to initiate a national project was compromised. In fact, Africa simply moved from one crisis to another even as efforts were made to address the numerous contradictions and conflicts that followed the post-colonial alignment and realignment of social, economic and political forces and interests. It is therefore important that we have a dialectical and holistic understanding of 1) structural deformities inherited from colonialism; 2) the nature of the postcolonial state; 3) the character of the dominant class and its dependent accumulative base; 4) the dominant role of foreign capital; 5) pressures from below (from non-bourgeois communities) against the new power elite; 6) the violent nature of the inherited security and military apparatuses; and 7) the marginalization of African social formations in the capitalist dominated global divisions of labor and power. Taken together, these factors and forces have shaped the nature and direction of power and politics in postcolonial Africa. Let us discuss just two in some detail.

The state inherited at independence was a violent, undemocratic, and privatized structure that was barely constituted to serve as the basis of governance or efficient delivery of services. Under colonialism, the state combined the powers of the three arms of government. It was insensitive to local values and needs and it imposed taxes, levies, fees, and laws at will and without consultation. Its primary concern was with maximizing profits and the general extraction of surplus to satisfy the interests of the metropolitan state and dominant classes. It relied on extreme force and used its military power to visit violence on African communities without hesitation. Communities that refused to pay taxes, contribute forced labor or acknowledge the “legitimacy” of the colonial state were attacked or razed and their leaders killed or forced into exile. Africans were made to see themselves as subjects rather than citizens and indigenous values were bastardized or wiped out. The economic, political, and social programs of the colonial state were informed by a pathological fixation on satisfying the greed of European merchants and consumers. This state structure was not dismantled at political independence. Rather, it was simply “whitewashed” or “Africanized” and handed over to a carefully nurtured political elite that was extremely hungry for raw power. Leading members of the new African elite that had been carefully identified, educated or nurtured in the ways of European interests were domesticated and incorporated into the colonial political machines as political apprentices after World War II.

At political independence therefore, the new elite inherited a state with limited legitimacy and without hegemony. This condition complicated the nature of political engagements. Of course, since only a handful of elites were involved in the contestations for power, the various governments they formed reflected and represented those narrow interests. Thus, right from election day the legitimacy of the government was compromised. In trying to exercised control, the elites have had to rely on force, manipulation, and violence. With time, politics degenerated into warfare. This was a war in which everything was deployed and no prisoners were taken. Pluralism and tolerance were thrown overboard with democracy, and intolerance and bestiality, at best, insensitivity to the plight of the disadvantaged took over. The foundation for instability, bad governance, corruption, violence, waste and the recycling of underdevelopment became firmly established. We are all familiar with the rest of the story.

The dominant class at political independence was a pathetic parody of what a dominant class really is. This reality complicated the continent’s chances of engaging the forces of neocolonialism and the contradictions of underdevelopment. Thus, right from the 1960s, the possibility of building new structures of accommodation, pluralism and good governance were mediated, even subverted by the nature of Africa’s political elite. The new elite, including the nationalists, settled into an unequal, exploitative, and subservient relationship with foreign capital at the expense of the workers and peasants. Aside from the fact that it was small in size, it was also a very pretentious, underdeveloped, dependent, corrupt, and highly fragmented class. It lacked confidence in itself. It was reliant on foreign tastes, markets, and its world-view was externally determined. It had only a tenuous relationship to production and its accumulative base depended on its lucrative but unproductive relationship with foreign capital. Its economic strategy was largely determined by its ability to divert public resources away from development and basic needs into private interests and foreign bank vaults. With its tenuous accumulative base, the African bourgeois class turned to the state as its instrument of accumulation. Thus, rather than building a productive base in industry and agriculture, the bourgeois class began to extend the powers of the state to build up its own capital base. This required the abridgement of popular rights, the diversion of public resources to serve private ends, the construction of extensive security networks, and increasing intolerance for the opposition. It also required the development of vicious strategies of primitive accumulation and political containment that saw the working classes and peasants as the main victims. With time, the media, students, trade unions, peasant associations, minorities, and professional groups became victims of the emergence of the “big man.”

Those who captured the state, its instruments of force and resources, simply personalized it, wiped out all features of sensitivity, and imaginary and real enemies were found and immediately eliminated or forced into exile. Local “axes of evil” were found as necessary and were subjected to the most brutal and merciless power of the state. However, each act of brutality and repression bred new cells of opposition to the state, its institutions and agents. Within two decades of political independence therefore, the continent was littered with military coups and counter-coups, civil and inter-state wars, ethnic violence, agitations for autonomy by minorities, alienation of the public from the state and its custodians, and the withdrawal of support for public policies. Good governance was thrown over-board and leaders busied themselves with the construction of dubious ideologies, personality cults and looting their respective treasuries. As political decay, uncertainty, violence, and disillusionment replaced the euphoria of Uhuru, even fractions of the power elite began to construct parallel structures of power and opportunities. This was evidenced in the use of foreign schools for the wards, reliance on foreign hospitals for medical attention, use of foreign banks, airlines and advisers; the use of private security in place of public police, the reliance of private water bore-holes and private electricity generators in place of publicly provided alternatives, and investments abroad rather than in the local economy. The state was hardly the sort of force that was capable of opening up the political space, mobilizing the people, and building a true foundation for democratic politics and constitutional rule.

The truth is that the “big man” has always been and remains a danger to society. This is a really dangerous, undemocratic character whose track record shows nothing but corruption, waste, violence, human rights abuses, misplaced priorities, and a pathological commitment to the recycling of mediocrity. The typical “big man” in Africa has no respect or regard for women much less gender equality. He is not interested in environmental protection. He is anti-intellectual and hates non-governmental organizations. He sees the media as a menace and minority rights hardly feature in his confused understanding of pluralism and social justice. He measures his worth or importance by the degree of poverty, disease and squalor around him. Rural people are idiots and illiterates and have no right to discuss national issues. The youth are stupid: after all they pay no taxes and have no grounds to comment on the challenge of national development. The so-called “big man” spends most of his time thinking and plotting how to corner public funds, subvert the course of justice, weaken public institutions to cover his criminal activities, and while constantly toothaching and bellyaching about how public facilities fail to work, does nothing about a viable alternative. Willy Mutunga has described very perfectly the “big man” in African politics:

His face is on the money. His photograph hangs in every office in his realm. His ministers wear gold pins with tiny photographs of Him on the lapels of their tailored pinstriped suits. He names streets, football stadiums, hospitals and universities after himself. He carries a silver inlaid ivory rungu or an ornately carved walking stick or a flywhisk or a chiefly stool. He insists on being called doctor or conqueror or teacher or the big elephant or the number one peasant or the wise old man or the national miracle or the most popular leader in the world. His every pronouncement is reported on the front page. He sleeps with wives and the daughters of powerful men in his government. He shuffles ministers without warning, paralysing policy decisions as he undercuts pretenders to his throne. He scapegoats minorities to shore up popular support. He bans all political parties except the one He controls. He rigs elections. He emasculates the courts, he cowers the press. He stifles academia. He goes to church. The Big Man’s off-the-cuff remarks have the power of law. He demands thunderous applause from the legislature when ordering far-reaching changes in the constitution. He blesses his home region with highways, schools, hospitals, housing projects, irrigation schemes, and a presidential mansion. He packs the civil service with his tribesmen… His enemies are harassed by youth wingers from the ruling party. His enemies are detained or exiled, humiliated or bankrupted, tortured or killed.ⁱ

The above is by no means an exaggerated rendition of the sort of characters that squandered Africa’s opportunities for growth, development and democracy and subverted post-independence constitutions. As I speak, many (if not most) African rulers still operate in this unsavory mold. With a non-hegemonic and very illegitimate state in place, this sort of dominant class could not enhance or protect civil society or promote constitutional governance. Africa was already set up for a steep free fall.

In the context of the cold war, it was easy to look West or East and to neglect internal processes of production and exchange. With foreign military and economic aid flowing in to subsidize the decadent and usually irresponsible tastes of the new power-elite in Africa, it was easy for the African state to neglect tax collection and the integration of the local economy. By the end of the 1970s, the entire political space of Africa had come under various forms of dictatorships- military and civilian all enjoying robust support from the West and the East. The plight of ordinary Africans meant nothing to the super and great powers. The powers, never insisted on democracy, transparency, human rights (save for Jimmy Carter’s tentative efforts) or social justice. Clearly, civil society was in trouble and constitutions were relegated to the continent’s political dustbin.

The end of the cold war left Africa’s dictators in shallow waters holding, as the saying goes, the short end of the stick. Deepening economic crisis that saw Africa on the margins of survival culminated in riots and violent attacks on the state, its institutions, and agents. Foreign aid dried up as Eastern Europe opened new opportunities for Western capital. The failed stabilization and adjustment programs further discouraged investors, lenders and donors. In fact, many African states became overwhelmed not just by the imposition of economic and political conditionalities from abroad, but also by the increasing support for local non-governmental organizations by Western interests. The dictators, military and civilian, had to devise other strategies for containing the growing opposition at home and satisfying the donors and lenders. Even military dictators in Ghana, Niger, and the Gambia were forced to civilianize themselves and organize elections. Other dictators like Moi and Banda in Kenya and Malawi respectively, who had boasted that democracy was irrelevant, were forced to amend their constitutions and allow for multiparty politics. Two questions: First, is it really possible for a so-called leader who had robustly and unrepentantly relied on lies, violence, corruption, intimidation, manipulation and the containment of democratic processes to suddenly become a democrat? Secondly, is it possible for the same socio-economic and political structures that had been used to loot, abuse, assassinate, corrupt and domesticate creative and liberating energies be used to sustain democracy? This is where the new politics of constitutionalism and the actions of civil society began to make a difference.

New Politics in Africa?

There is an increasing feeling of euphoria in Africa these days. For a continent that was awash with brutal dictators, corrupt regimes, misplaced priorities, institutional decay, and social dislocation and violence, the recent political openings and renewed commitments to democratic values present new opportunities and possibilities. True, there is much to worry about in the illiberal democratic realities of the continent. In fact, most of the newly elected politicians still act and sound very much like the dictators of the past. They appear impatient with democracy and perceive democratic rules as impediments to their ability to use power as they see fit. They express shallow and opportunistic commitments to democratic practice and are all too willing to subvert democratic institutions at the slightest opportunity.

This not withstanding, the emergence of new issues, new discourses, new leaders, and new political parties on the continent’s political landscape has altered the balance of forces and encouraged a radical realignment of political interests. Irrespective of the particular country concerned, there are certain common variables that are shaping the content and context of contemporary politics in Africa: the end of the cold war; donor complaints about aid fatigue; the end of apartheid and the emergence of South Africa as a central player in continental politics; the increasing unpopularity of military juntas; the increasing influence and power of civil society groups and the emergence of a new breed of articulate and pro-democracy leaders. To these, we can add the new commitment of international organizations and Western governments to the new democratic agenda; the new recognition of the centrality of pluralism, gender, identity and nationality issues in the articulation of political platforms; and the political impact of globalization requiring at the minimum democratic practices, respect for human rights, and multiparty political arrangements. Africa, in spite of its dependence, underdevelopment, and marginalization in the global divisions of labor and power has not been spared the impact of these developments.

Today, the political picture, though not quite clear, is radically different. Irrespective of frustrations over the depth and direction of political liberalization in Africa, the truth is that the political environment, the issues and the actors have changed dramatically. What are the indicators of this change?

• Though it is still a very long and painful way to the promised land of democracy and good governance, even the old buzzards of African politics have, at the very least, changed the language and style of their political activities. There is a new movement towards consultation and legitimizing power through the will of the people.

• The contestation for hegemony or control of the state is no longer dominated by the tiny class of elites. New leaders, new constituencies, and new political parties now litter the political field of all African states.

• It is no longer fashionable to develop a guerilla army and engage the state over disagreements on political reforms just as coups are becoming increasingly unacceptable to the larger society. In Liberia, Sierra Leone, Angola and other hot spots, there is a clear effort to negotiate, dialogue, build new political bridges, and terminate festering conflicts.

• In many African states, the political fraction of the power elite not only feels terribly embarrassed at its shameful performance on all fronts but it is also on the retreat even if temporarily. Its poor performance in governance and economic development since the 1960s has eroded its legitimacy in the eyes of the people. Hence in Zimbabwe, Malawi, Zambia, and even Kenya and Uganda, opposition elements are making great strides as the electorate punishes the old buzzards of politics by voting for “new blood.”

• Rabid populism, intimidation of civil society and political opponents, and the manipulation of primordial loyalties are no longer sufficient to buy or guarantee the support of the people. It is not amazing therefore, that the conservative custodians of state power have had no problems with conceding their failures and inviting or incorporating credible opposition elements into existing power structures to give a veneer of legitimacy or political rebirth. This is one way to understand Daniel arap Moi’s inclusion of Richard Leakey in his cabinet to assist with public service reforms in Kenya before he was disgraced out of the position. Even military juntas have had to make a hasty retreat from power as was the case in General Abdulsalam Abubakar’s junta in Nigeria. General Sani Abacha’s rule had thoroughly delegitimated the military and aroused a robust civil society opposition to continued military rule. Repression has not eliminated or discouraged support for the Movement for Democratic Change (MDC) in Zimbabwe.

• Women, rural folk, the youth and workers are increasingly re-entering the center stage of politics all over Africa. The process is slow but it is certainly going on. In Ghana, students were very central to the defeat of Jerry Rawlings’ party the NDC. In Senegal, Abdou Diouf conceded defeat to Abdoulaye Wade in the March 2000 election as soon as he saw the monumental shift engineered by the active participation of young persons who were dissatisfied with the status quo. In Zimbabwe, young people constitute the core of the MDC’s power hence Mugabe abandoned the cities for the rural areas in the 2002 election campaigns. In Uganda, young people constitute the core of the “multipartysts.” In spite of Yoweri Museveni’s efforts and promises, supporters of multiparty politics won the Mayoral election in Kampala in the February 2002 election.

• In place of the one-party or no party state, we now have a plethora of political parties. Even Uganda’s so-called “Movement System” is underscored by the continuing existence of powerful political parties and a robust pressure on Yoweri Museveni’s National Resistance Movement (NRM) government to open up the political system to multiparty political competition. While the proliferation of parties is serving to work against the opposition as we have seen in Kenya and Zambia, it would eventually become crystallized into a vibrant multi-party political system.

• In place of military dictatorships, we are seeing civilianized military juntas as in The Gambia, Ghana, Togo, Burkina Faso, and Niger. In place of endless murderous wars, we are seeing pacted conflict resolution initiatives with varying levels of resilience as in Sierra Leone, Liberia, Ethiopia, Eritrea, and even Rwanda. The reality of the present is that they have all subscribed to democracy and constitutional governance.

• All over the continent, the discourse of politics now reflects issues of women, gender equality, transparency, constitutionalism, and the cultivation of democratic values. This was certainly not the case a decade or so ago.

• Continuing a long tradition of activism, thousands of non-governmental organizations across the African continent such as the Citizens Coalition for Constitutional Change (4Cs) in Kenya, The Egyptian Organization for Human Rights (EOHR), the Citizens’ Forum for Constitutional Reform (CFCR) in Nigeria, and the Centre for Basic Research (CBR) and Kituo cha Katiba (KcK) in Uganda are engaging in various activities designed to open up democratic spaces and consolidate democratic experiments. As well, leading African scholars like Mahmood Mamdani, Berekett Selassie, Issa Shivji, Joe Oloka-Onyango, Eboe Hutchful, Thandika Mkandiwire, Pita Agbese, and Aaron Gana, and progressive scholar-politicians like Abdulaiye Bathily in Senegal and Peter Anyang’nyongo in Kenya continue to remain active in politics working with civil society groups and pushing the democratic agenda.

• Unlike the past, we are now witnessing a robust interest in budgets and budget analysis as well as a persistent call for accountability and transparency in political relations and the management of public funds. Scores of NGOs have been established to monitor how budgets are made, presented, and implemented.

It is in the context of these contestations and engagements as well as changing character of politics within and beyond the continent that we can understand the new interest in constitutions and constitutionalism. Most African states are now beginning to appreciate the centrality of constitutions to the democratic process. In fact, countries like Ethiopia, Eritrea, Uganda, Namibia, and South Africa have opted for variants of participatory constitution making as mechanisms for mobilizing the populace, resolving festering conflicts, and reforming the nature of governance. Others like Ghana, Cote d’Ivoire, Mali, and Nigeria have used constitution making as a strategy for organizing a transition from military dictatorship to democratic rule. Yet, others like Zambia and Kenya have used constitution review processes to contain political opponents or civil society groups as part of a strategy to maintain the status quo.
Most African leaders are now realizing that a truly popular constitution would serve the interest of those in power and establish a legitimate basis for governance. As well, a people-driven constitution making approach would contribute significantly to the reduction of conflicts and pressures on the state, its institutions and custodians. Aside from using the process to resolve burning national issues, a participatory approach is probably one of the best panaceas to instability, public cynicism, alienation from government, coups and counter-coups. When a people collectively compact a constitution, they can also be expected to defend it against political adventurers and other anti-democratic forces. It is equally the best way to cultivate a culture and tradition of reliance on dialogue and consensus rather than the resort to violence in the political process. The value of this approach is yet to be fully recognized and exploited in most of Africa.
Civil Society and the New Politics of Constitution Making
The failure of the state and its custodians opened the way for civil society organizations to make determined efforts to influence the content and context of politics in Africa. Aside from the era of the nationalist struggles, at no other time have civil society organizations shown so much interest in politics. The end of the cold war, reduced support for dictators, support and endorsements from international organizations and foreign governments, and the massive inflow of donor funds invigorated civil society organizations and leaders. New leaders and new voices emerged to articulate new issues especially on socio-economic and cultural rights, gender equality, environmental protection, child rights, transparency, and democratization. For millions of Africans whose lives had been totally shattered by failed adjustment programs and despotic rule, these issues had meaning and they readily lent support. Professionals, women, peasants, students, unions, even the unemployed, flocked to join non-governmental organizations or to participate in demonstrations for change at great risk and costs. The numerous anti-SAP riots in Zambia, Togo, Nigeria, and Ghana were ready platforms for articulating democratic demands and calling for leadership change and multiparty politics. Specialized NGOs also built new networks and provided the masses with alternative views of the future. The delegitimation of the military by criminal leaders like Gnasingbe Eyadema, Sani Abacha, Ibrahim Babangida, Siyyad Barre, and Mobutu Sese Seko provided a contrast to democratic alternatives. Grinding poverty eroded or rendered useless the rosy promises of the past and made it easy for civil society groups to attract massive public support.
Of course, civil society remains weak in Africa. This is not the fault of the organizations or their leaders. It is easy to criticize, even dismiss civil society groups from a safe distance especially by persons with no praxis. Given the history of Africa: from a diabolical colonial state through various forms of dictatorships, one-man rule, and military despotism, civil society was suffocated to the maximum. Political discourses were banned. Many leaders of civil society were jailed, assassinated or forced into exile. Registration was denied to many opposition parties and NGOs. In Egypt, it is criminal to receive donor money to work on democratic issues. In Nigeria, bureaucrats remain fixated on the character of the country’s undemocratic past: hence any NGO with “Democracy” in its name is automatically denied registration. All African governments as a way of silencing the opposition and reproducing the weaknesses of civil society used the strategy of intimidation, domestication and incorporation. In short, everything was done to ensure that civil society groups reflected and operated as appendages of the presidency or did not operate at all. It is therefore not amazing that even today, in spite of their unprecedented achievements, civil society organizations are still weak, characterized by: poor leadership, dubious programs that look like they were written by the IMF, opportunism, an excessive focus on the capture of raw power, and refusal to reach accommodation with each other. As well, many have been compromised by door funds, they remain largely urban based, and women are still very much invisible in their ranks.
In spite of the above, civil society groups have proved their resilience and remain in the forefront in the demands for political and economic restructuring through a process-led and people-driven constitution making approach as a strategy for dismantling and reconstructing the state.
Africans are beginning to see constitution making as the most legitimate strategy for dismantling the oppressive neocolonial state and restructuring it to reflect the needs of the majority. The problems of marginal or powerless communities arise from the unequal access to the structures of power. A popular, open, and democratic constitution making approach would enable them articulate the issues that affect them and become part of a process of compacting a constitution that would accommodate such issues. A constitution is no longer just a “power map” of society but also an instrument for addressing pressing social, cultural, and economic questions. The process of constitution making is equally an opportunity to build consensus on politics, economy and society through the involvement of the people. It reflects the general will of society and reflects their past and present and articulates their dreams about and for the future. In the context of the on-going robust challenges to the status quo and the popular articulation of alternative frameworks for understanding society, the compacting of new democratic constitutions is being used to check the rapacious African military, corrupt and irresponsible institutions, and the over-bloated, repressive, and non-hegemonic postcolonial state. As well, new democratic constitutions have become veritable instruments in the acknowledgement and protection of nationality, gender, environment, language, religion, cultural, and economic rights.
To be sure, some of the questions that have come to determine the nature of the debate and politics on constitutional reform in Africa have included: Who would initiate the process of constitution making and on what terms? 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? How representative should the review commission be and how much power should it have? What are the guarantees that what comes out of the process will be respected by those in power? What are the mechanisms for mobilizing civil society, the political elite and other constituencies in society? How would the final ratification of the constitution be organized? The questions are legion.
True, 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 to be legal documents, they were certainly not legitimate.
The illegitimacy of the majority of constitutions in Africa arise from the fact that they were not compacted through a truly open and democratic process that paid attention to the dreams, pains, and aspirations of African peoples, 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. These deficiencies have called for new principles and mechanisms to support the establishment of new rules and platforms for new democratic politics. All over Africa, this is being realized through popular constitution making.
Principles and Mechanisms of Democratic Constitution Making
Producing a truly democratic constitution through an open and consultative process is only the beginning of what is usually a major task of state reconstruction and political renewal. It is the most urgent and critical indicator that a new brand of politics is being established. The document that results from such a process could still be hijacked, subverted by the political elite, in particular, the custodians of state power. However, if the process was truly inclusive and participatory and this is reflected in the content of the new constitution, it could be guaranteed that the democratic communities that participated in the process would continue to claim ownership of the document and use it as a weapon to defend not just individual and collective rights but also the larger democratic process. Here I will highlight only a handful of the principles and mechanisms that currently guide constitution making in Africa.
Perhaps the most important factor that gives meaning to the principles and process is the character and honesty of the leadership. African history is littered with experiences of diabolical constitution making initiatives that were never designed to succeed. African leaders have been known to initiate constitutional debates as a strategy for identifying advocates of constitutional reform in order to contain or eliminate them. On other occasions, constitutional reform processes have been initiated to divert attention from deepening political crisis and to give the impression that particular regimes were committed to political reforms. Thus, leadership has to be serious and honest when it initiates the process of constitutional reform. One reason why the opposition in Zimbabwe led by the National Consultative Assembly (NCA) distrusted and refused to participate in the Mugabe constitutional reform process initiated in mid-1999 was exactly for this reason. They distrusted Mugabe and had a lot of reasons for doing so. He had taken the nation through that path before and his tenacity to office and total lack of transparency in other areas showed that Mugabe could hardly be trusted. A similar claim could be made for Zambia, Cameroon and Kenya under Frederick Chiluba, Paul Biya and Daniel Moi respectively.
The composition and leadership of the reform institutionis important. In Eritrea, the appointment of a highly respected lawyer, academic and activist in Berekett Habte Selassi gave credibility to the Constitutional Commission of Eritrea (CCE). In South Africa, Cyril Ramaphosa was a highly regarded head of the Constitutional Assembly. Uganda had the highly respected Justice Ben Odoki as the chair of its constitutional commission. The membership of constitutional commissions must be clearly representative and must include credible persons. Over the decades Africa has made nonsense of sensitivity to representation and justice. In pluralistic societies it is important that such a committee be seen to be fully representative of the various communities, constituencies and interests. In particular, the youth, the private sector, labor, students, women, and rural folks must be represented. It smacks of silly arrogance to assume that only lawyers can make or write constitutions. This is clearly not valid. When critical communities are ignored, the legitimacy of the constitution can be compromised. When representation is respected, it initiates a critical process of building ownership around the constitution. Having made the constitution together, these constituencies can be expected to defend the constitution collectively.
The political leaders and commission members must do everything possible to invite the participation of all communities and constituencies especially hitherto marginalized groups. This principle of inclusivity requires that nationality groups, women, students, the armed forces, the youth, professionals, trade unions, religious (including traditional) groups, traditional leaders and cultural communities, prisoners, in fact, every identifiable community must be involved in the process. It is the responsibility of the country’s leadership as well as of those leading the process to invite, assist, reassure, and encourage these communities to come into the open, articulate their views, engage other community groups in debate, and present positions on what they would like to see in the constitution. In South Africa, every citizen was encouraged to send in submissions to the Constitutional Assembly and as evidence of commitment to transparency and inclusion, those that sent submissions received a reply from the CA as well as copies of the various drafts of the constitution. Similarly, in Eritrea, creative strategies were adopted by the constitutional commission to bring all interest groups into the process. A special attention was paid to the youth and cultural institutions. Politicians in Africa, Nigeria in particular, tend to take the importance of constituency building, civic education, and constant communication with the voters for granted because of the prevailing culture of privatizing the state and its resources. Visiting selected villages in very darkly tinted official cars with sirens for a few hours is not the way to make a constitution or involve the people.
It is critical that the process is devoid of bogus, complex, and confusing language especially legalese. One of the hallmarks of the mostly illegitimate constitutions in Africa is the use of complex and largely irrelevant legal language. This discourages the ordinary citizen from understanding the constitution, identifying with it, and also makes meaningful translation into local languages difficult, if not impossible. Even lawyers have had problems with understanding some African constitutions. The new approach must emphasize easy and simple language in order to keep it within the political terrain of the people. Nigeria has never had its constitution translated into local languages not even into the so-called pidgin English that is most widely spoken and understood in the country. This means that the vast majority of Nigerians have never had access to a document that was supposed to be the basis of governance. The Eritrean, Ethiopian, Ghanaian, Ugandan, and South African constitutions represent efforts in the new direction of stating issues in simple plain language. This must become a central principle of constitution making in Nigeria.
Equally important is the timeframe. African leaders have had a tendency to rush the process largely because they have a secret agenda to be fulfilled by a manipulated approach. In Nigeria, the Justice Niki Tobi Constitutional Debate Coordinating Commission had two months to do its job in a country of 120 million, 774 local government areas, 36 states and a federal capital territory. Of course, the majority of Nigerians had absolutely no idea that such an exercise was going on. The measure of the worthlessness of the exercise and the final product is reflected in the fact that in less than six months of the inauguration of the new democratic dispensation led Chief Olusegun Obasanjo, the constitution is already being subjected to review by two committees. In Zimbabwe, Robert Mugabe gave the Constitutional Commission 6 months to complete its assignment. By contrast, the constitution making exercises in Eritrea and Uganda took two and four years respectively. While time does not always guarantee quality, there is no doubt that a truly participatory and consultative approach in pluralistic formations requires sufficient time to give meaning to the process. Rushed processes usually end up leaving out a lot of issues and several communities thus eroding the legitimacy of the final document. As well, rushed processes often tend to compromise opportunities to engage in mass education as a way of building ownership around the final constitution. The Nigerian process is being rushed with little substance and the end result can be easily predicted.
The process described above increases public accessibility to the constitution making process. The Nigerian “Technical Committee” on the Review of the 1999 Constitution (before it changed its name and approach) initially expected all submissions to be typed in double spacing and submitted in ten copies personally or by e-mail. This was in a country where less than one percent of the elites has access to computers not to talk of e-mail facilities. In Eritrea, the Constitutional Commission was sensitive to the fact that the majority of the population was illiterate. Thus it devoted a lot of time to vernacular discourses and into translating documents into all local languages. Facilities were made for oral submissions and creative strategies were designed to disseminate documents, information, and reports. In Eritrea, about 400 trainers were recruited to help with the dissemination of information and educating the public. The trainers succeeded in getting information to over half a million Eritreans. In South Africa, toll-free phone lines were provided as were documents in user-friendly forms, cartoons, and annotated formats. All materials related to the constitution making process were also posted on the internet. The South Africans were determined to demonstrate to the world that they had nothing to hide. The overall goal is to carry the people along and involve them at every stage of the process. In these countries where a democratic constitution resulted from an open process, the members of parliament did not dominate the process. Nigerian parliamentarians must learn from other countries.
Most African states embark on constitution making without adequate mechanisms to deal with conflicts and deadlocks that arise from the process. Following from the point immediately above, vexing national issues could lead to stalemate, violence, or seemingly unresolvable arguments taking regional, gender, class, religious or professional fault lines. It is therefore important that either the state or the commission set up a mechanism for resolving such conflicts in order not to stall the process. A special committee made up of credible men, women, and the youth such as former presidents (if they still have credibility), religious leaders, union leaders, and persons with a national presence might serve such a purpose. Such a committee must be seen to be independent and capable of reaching quick and fairly reasonable decisions without fear or favor. The committee must not be presented as another court of law making legal decisions. It must rather be seen as a moral and political platform designed deliberately to reach decisions that would satisfy parties in dispute as much as possible. Constitutional provisions designed to revisit such controversial issues might be ways for placating those who do not feel completely satisfied with such decisions. Deadlocks and conflicts could be anticipated and resolved through the establishment of committees, sub-committees, special panels, and the use of workshops designed to utilize the services of academics and experts on contentious national issues. Neither the presidential committee nor the National Assembly’s committee have deadlock breaking mechanisms to deal with minority rights, affirmative action for women, children’s rights, religious freedom, control of the military, devolution of powers, state police, state constitutions, re-federalization, citizenship and property rights and so on. These issues are not being effectively and comprehensively debated. People just open their mouths at airports, parties and in front of any microphone to make diabolical pronouncements on critical national issues. The Nigerian elite is building a house while eroding the foundations with little effort.
Mechanisms for ratifying the final document should be credible and legitimate. Ratification must be seen as giving final rights of approval to the people directly or through their elected representatives. This process must be declared at the beginning and a national discussion held on it. This reassures the people that political elites would not mangle their views, dreams and demands. It was the referendum in Zimbabwe that set the ball rolling for multiparty politics and the victory of the opposition in the subsequent elections. In Ghana, a referendum was used to give final ratification to the constitution this, not withstanding the fact that Jerry Rawlings had already unilaterally inserted some so-called transitional provisions into the draft constitution. In Eritrea, the constitution was ratified by a constituent assembly elected to receive, consider and approve the draft submitted to it. Without doubt, a public ratification process enables the people to participate in the final process and increase public education on the constitution. As well, that final act of approval also enables them to claim ownership of the constitution and this establishes a commitment to defending the document. This is clearly better than situations where a military junta issues a decree to approve a constitution or where a president acts as the final stop for approval.
Finally, there must be mechanisms for ensuring continuous review of the constitution as a strategy for building public confidence and committing them to the process and final document. It is important that the commission set up or contract with an independent or semi-independent unit that would regularly review the process of constitution making, the structures and institutions, public education, impact of media and outreach strategies, the staffing, and so on. This is one way to let the people know that their contributions and support for the process are valued and the impact would be constantly monitored. Academic institutions, rather than being ignored or marginalized in the process can be invaluable to this objective. African universities, in spite of recent economic and other problems, remain powerful sites for relevant research and can be contracted to assist with such review and monitoring. The reports from such reviews must be made public as part of the broad transparent approach to constitution making. Part of this strategy should also include the establishment of a constitutionalized institution to mass produce, abridge, translate, and teach the constitution so as to make it a living document an put it on the political screen of the citizenry at all times. The Uganda Human Rights Commission, the National Commission for Civic Education in Ghana and the Department of Constitutional Development (now part of the Department of Justice) in South Africa perform these functions. It is one way of giving access to the people, educating them on the provisions of the constitution, and empowering them to deploy it in the defense of individual and collective rights at all times. Going by progressive developments in Ghana, South Africa and Uganda, Nigeria has not even started. Many of our leaders do not even understand the value of institution that would promote civic education and make the constitution a living document. It is never too late to learn from others.
If these (and other) democratic principles and mechanisms are utilized in the constitution making process, it could almost be guaranteed that a democratic, popular and pro-people constitution would be produced. Today, there is a direct correlation between popular and participatory constitution making and the democratic content of constitutions. The constitutions of Ghana, Uganda, Namibia, South Africa, Ethiopia, and Eritrea contain new and creative provisions that significantly affect the democratic project. There is a deliberate effort to deal with the national question. Another interesting feature of the new constitutions is the provisions on the illegal seizure of power by the military. In the countries mentioned above, control of the military is tied to the existence of a program of civic education on the supremacy of the constitution and the will of the people.
Conclusion
In spite of recent developments in Eritrea, Zimbabwe, Togo, and Uganda, the dawn of democratic politics in Africa cannot be reversed. Africans have been to the precipice of disaster and they have seen the worst in their leaders. The challenge before Africans to day is to take apart the postcolonial state and reconstitute it in the interest of growth, development and democracy. In this process of state reconstruction, Africans must continue to insist on building democratic platforms and networks, on the rule of law, accountability, and transparency. The involvement of women the youth and rural folks in the political and planning processes must be part of the new democratic agenda. The cultivation and nurturing of a new leadership that is conversant with developments within and outside the region is equally central to the process of reconstruction. Institutions of politics, economy and society need to be revamped and reconstructed along democratic lines. A culture of open discussions, debates and dialogue must be nurtured to move people and communities away from existing conditions of violence, repression, autocracy and repression. The international community has a major role to play in helping Africa overcome the legacies of colonialism, dependence, underdevelopment and the cold war. An underdeveloped, poverty-stricken, unstable, violent and crises-ridden Africa poses threats to the global community. Such conditions not only breed terrorists but also the ubiquitous axes of evil. Prescriptions in support of Africa’s political and economic recovery must not always place market and profits above community, the environment, culture and humanity. Such prescriptions must have regard for the experiences and specifities of Africa and for the robust energies of non-bourgeois communities in the reform and reconstruction process.