The Fall and Rise of Constitutionalism in West Africa

Abstract

This article includes updated sections from a larger study that was presented to the symposium held in Asmara by the Constitutional Commission of Eritrea in January .   .   be partly the case, as Michael Crowder claimed in , that ' contemporary judgements about the so-called failure of Africa are really judgements made in terms of a Eurocentric dream for an independent Africa in which liberal democracy would be the norm, a dream that was shared only by a few elitist politicians '," and espoused only by the British and French. What is remarkable, however, is that the dream -Eurocentric or not -remained alive during some  years of anti-democratic misrule, and that it spread and became Africanised in the process.All this, nevertheless, still leaves open for discussion the classic conundrums faced by those who engineer constitutions : namely, that these are expected (i) to embody the basic, enduring norms of political life, (ii) to set the frameworks of governance, (iii) to have permanent lives of their own apart from the institutions they create, and thus (iv) to exemplify, if they are democratic in vocation, the political covenant that citizens of a state make with themselves. And if constitutions ' fail ', they do so less on account of being imported or badly phrased, but mainly as the outcome of the flawed vision and acumen of their drafters, and\or because the ' founding fathers ' and their successors chose to subordinate constitutional principles to their own political ambitions. ' The fault ', as Shakespeare reminds us in Julius Caesar, 'is not in our stars, but in ourselves '. This article examines these theses as they relate to West Africa, which I take to include the broad band of states from Senegal and Mauritania in the west, to Cameroon, Nigeria, and Niger in the east. My survey covers the two main foyers of constitution-making in West Africa -that is, the French-and English-speaking territories of the region -a focus that permits some useful generalisations and comparisons to be made. The following three countries have not been included :. Equatorial Guinea attained independence from Spain in October  under a democratic constitution, but after the first six months this was to all intents and purposes scrapped by the President-for-Life and ' Unique Miracle ', the tyrant Francisco Macı! as Nguema. He was overthrown in  and executed for treason and genocide by his

Corruption in Africa – Part 2

“…However, these laws are part of a legal system that was inherited from European colonialists and hence, is considered by a lot of citizens as an alien imposition and not a legitimate tool for the regulation of socio‐political interaction. Perhaps, more important is the fact that most African countries did not make the effort to engage their citizens in the type of institutional reforms that would have allowed them to reconstruct and reconstitute the critical domains and provide themselves with laws and institutions that are compatible with their traditions, cultures, customs, and values (LeVine, 1997). The institutional arrangements that exist in most African countries today were not developed with the full and effective participation of all relevant stakeholders.…”

“…Firms in such economies would invest very little of their capital in productive activities, instead, preferring to improve the profitability of their enterprises through rent seeking and corruption, generally ignoring the enormous costs that such activities impose on society. Given the fact that the police and judiciary, as well as other counteracting agencies in these economies, are likely to be pervaded by corruption, they would not function effectively as instruments for the cleanup of corruption (Mbaku, 2007).…”

“…First, democratic institutional reforms can produce constitutional rules that (1) reflect society’s values and hence, are most likely to be accepted by the people as legitimate tools for the regulation of their socio‐political interaction – such acceptance and embracement of the rules by the people should significantly improve compliance and minimize the costs of policing; and (2) adequately constrain the State and prevent its custodians from behaving opportunistically. Second, institutional reforms can be used to entrench economic freedom and hence, guarantee the right of citizens to engage freely in exchange and contracting (Mbaku, 2007, 1997, 2004). Mutually beneficial exchange is very important for entrepreneurship and wealth creation.…”

A Globalizing Constitutionalism?

“…By the end of the 20th century, at least 59 out of 91 independence constitutions had been significantly amended or displaced by the promulgation of new ones. In Africa, constitutional change was the rule of postcolonial politics, typically beginning in the few years immediately following independence (Le Vine, 1997). Across the postcolonial world, constitutional reconstruction similarly proceeded apace.…”

Corruption in Africa – Part 1

“…These newly crafted laws and institutional structures, however, offered various ruling elites opportunities and the wherewithal to maximize their personal interests, including especially the use of state apparatuses for private capital accumulation. The result of this post‐independence effort at institutional reform was pervasive corruption and rent seeking, high levels of poverty and material deprivation, and endemic political instability, including military coups and violent ethnic mobilization (LeVine, 1997).…”