In Volume 1 of his Constitutional Democracy in Africa, Prof. Ben Nwabueze argues that the term ‘constitutionalism’ which originally entailed constitutional government-that is government limited in the exercise of its powers- has, of late, been conceptually broadened to include popular government duly sanctioned by the governed. In effect constitutionalism is now essentially defined by two key attributes- government according to law and government anchored on popular consent. This construction of the term, controversial as it may be, is supported by similar definitions in the literature.
Nwabueze’s characterization of the subject is, i believe, apt for two reasons. First, government based on mere constitutionality leaves several loop-holes for tyranny if it is not, at the same time, held in check by the people’s sanction. Unless it is accountable to the governed, from whom it derives its authority, government is bound to be dysfunctional, serving parochial interests and blighting popular aspirations. History is replete with disturbing accounts of ‘constitutional’ governments aimed solely at fostering personal fiefdoms. This was the case in many of the former socialist states.
Second, any attempt to conceptualize constitutionalism in terms of constitutional government alone will lead to confusion and provide undemocratic elements with justification for their limited vision of civilized society. Democracy is now widely regarded as the best form of government ever invented by man. Our definition of constitutionalism must enhance this philosophy and not detract from it. Constitutionalism therefore must be taken to mean government limited by a supreme law and anchored on the people’s will. It is not just government according to a constitution, no matter how supreme that constitution is, it is also government that carries the imprimatur of the governed.
Constitutionalism, as defined above, received a significant fillip in the wake of Burkina Faso’s recent military putsch. Foreign governments, international organizations, civil society organizations and local activists rose up stoutly in defence of constitutionalism. They unanimously insisted that democratic order be restored in the West African country. The public outrage induced by the unconstitutional and undemocratic change in government forced the coup leaders to abandon their wild project. Plans are now under way to prosecute and punish those who participated in the coup d’etat.
Beyond the symbolic victory of constitutionalism in the Burkina Faso case however, it would appear that a lot still needs to be done if constitutionalism is to fully gain currency on the African continent. ‘Sit-tightism’ — a virulent antithesis of constitutionalism- is still very much a significant feature of the continent’s political culture. The sanctity of the ballot box is yet to be fully embraced by political actors. In short, democracy- an important element of constitutionalism- is perhaps still a mirage in Africa.
Nothing underscores Africa’s constitutionalism deficit better than recent surreptitious moves by some of the continent’s leaders to perpetuate themselves in power. Witness for instance the unconstitutional ‘election’ of Burundi’s Pierre Nkurunziza for a third term in office in July 2015. Nkurunziza has been in power since 2005. Omar Al Bashir, President of Sudan since 1989, also got ‘re-elected’ in April 2015 following an ‘election’ exercise marred by apathy and poor voter turnout. Recently Paul Kagame, President of Rwanda since 2000 hinted at his plans to seek an unconstitutional third term in office when his current tenure expires in 2017. In 2006, former President Obasanjo of Nigeria also tried unsuccessfully to tinker with the country’s constitution in order to actualize his unconstitutional third term ambition. Before Obasanjo, President Frederick Chiluba of Zambia had tried unsuccessfully to amend his country’s constitution to allow him run for a third term in office. The September coup in Burkina Faso was itself an attempt by supporters of the country’s disgraced leader Blaise Compaore to remain in power through the back-door.
Sit-tightism in Africa has a long and troubling history. It is characterized by a wilful reluctance on the part of political leaders to relinquish power. It is facilitated by dictatorship and oiled by brutal repression of dissent and fundamental freedoms. Such was the case in Libya under Muhammar Gaddaffi from 1968 to 2011. It was also the case under Mobutu Seseseko of the DRC from 1965 to 1997; Mathieu Kerekou of Benin Republic from 1972 to 2006; Felix Houphouet Boigny of Cote d’ivoire from 1960 to 1993; and Gnassingbe Eyadema of Togo from 1967 to 2005. Theodoro Mbasogo of Equatorial Guinea, Robert Mugabe of Zimbabwe and Paul Biya of Cameroon are still sitting presidents having been in power since 1979, 1980 and 1982 respectively. In all the cases mentioned above, power has been retained against the will of the citizenry.
The right of the peoples of Africa to decide who governs them and how they are governed has therefore been an endangered right for decades. This right includes the freedom to decide how power is acquired, how it is exercised and for how long it can be retained. Sit-tightism, as defined above, significantly impinges on this right and undermines constitutionalism.
To entrench the culture of constitutionalism in Africa, anything capable of impeding the democratic right of the people to choose their leaders or vote them out at free and fair elections conducted periodically must be extinguished. The African Union and other regional organizations as well as civil society bodies have a significant role to play in this process. When the Burkina Faso coup took place, the African Union promptly suspended the country and threatened to impose further sanctions, including travel bans, on the coup leaders. Such treatment must now be extended to African countries whose leaders have held on to power unconstitutionally even where such leaders have been illegally and illegitimately ‘re-elected.’ There is a need for sustained activism against personalization of power in Africa. The African Union and other public spirited organizations should champion this cause.
Fortunately, the African Union recently re-dedicated itself to the ideals of constitutionalism through several declarations and binding instruments. But the organization needs to do more. There is a need to give more teeth to enforcement because of its deterrent effect. In essence, the AU must go beyond the rhetoric of Declarations and Charters to actually impose and enforce appropriate sanctions against recalcitrant or erring African governments. There is also a need for greater cooperation between the Union and other regional organizations in Africa in the areas of compliance and enforcement across the continent. Such cooperation must be robust but focused to achieve the desired goal of guiding African states along the path of rectitude.
This article was first written published on linkedin in February 2017.
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