Constitutionalizing dissent: The universe of opposition rules in African constitutions

Abstract

Constitutions are the most important legal foundation of politics. At the same time, the existence of a viable parliamentary opposition has been regarded one of the most distinctive characteristics of democracy. Bringing the two perspectives together, the principle of opposition can be constitutionalized to gain the highest status. Importantly, we refer to norms recognizing the opposition as such. Such counter-majoritarian rules are distinct because they empower opposition forces irrespective of their seat share and explicitly acknowledge that power should not be monopolized. While our subject has attracted little interest from comparative constitutionalists, it is too important to be overlooked. This is particularly true for autocratizing regimes where incumbents seek to use legislative lawfare to repress their opponents. Empirically, the study focuses on Africa, which proves revealing for various reasons. Among others, it addresses the critique that constitutional law studies often concentrate on usual suspect cases used to reveal purportedly universal insights. Our exercise in comparative constitutional law leads to two main conclusions that go beyond the continent. First, while we find a high number of opposition-related rules, the variation in design details and scope suggests that referring to the principle of opposition in an abstract manner is somewhat obscuring. And second, the obvious virtues of constitutionalizing dissent face noteworthy pitfalls since pertinent rules can lack legal clarity and even suppress dissent. Hence, the dividends of nominally democratic rules might be smaller than expected even if constitutional designers sincerely intend to fully uphold them in practice.