With the exception of Ethiopia, every other African country was colonized. Indeed, back in the 1950’s and prior to Ghana being the first State to obtain independence, every other African country was governed through colonial rule, either, for example, by the French, British or Portuguese. The laws from these Colonial masters, constituted what was then the legal order in their respective colonies. African States have since achieved independence and in the last decades of the 20th century, these laws faced massive criticism on the basis that they were not African, not contemporary and not people-centered.
Constitutional revisions did not stop in the 20th century. Indeed, over the first two decades of the 21st Century, heighten constitutional debates have emerged and there has been an increase in the number of States that have initiated constitutional revisions across the Continent. But, specifically, such revisions have been due to, remarkable social and political movements that have emerged around the Continent. These movements could be regarded to have ushered in new energy and ideology in the way African Constitutions should look like, based on, for example, international and regional law standards African states have committed to through their ratification of several international and regional legal instruments. For example, such movements have demanded Constitutions that reinforce greater justice and more protection of human rights, more transparent political processes and increased dialogue on governmental issues. Briefly, they have demanded Constitutions that mandate democratic governance based on the rule of law that operates on a peoplecentered principle such as separation of powers anchored in participatory and consultative processes.
The significance of a participatory and consultative constitutional process is critical in the fact that a constitution represents a social contract between the government and the governed; it is the basic law of the land. It prescribes the process and political ideology a government adopts, it guarantees peaceful governmental transitions - through the recognition of term limits, it assures the people that they decide, through vote, on who governs them. In all, a constitutional process should be an open process which also ensures that ownership of a constitution is vested in the people and nation and not in individuals. Indeed, the Charter of the African Union, for example, reaffirms that freedom, equality, justice and dignity are critical objectives for the achievement of the aspirations of the African people. Recently, these aspirations have been strengthened further through the adoption of the African Union’s Agenda 2063: The Africa We Want and specifically through ‘aspiration’ three, which hopes for ‘An Africa of good governance, respect for human rights, justice and the rule of law’ and ‘aspiration’ four, which hopes for ‘A peaceful and secure Africa’.
To date, more than 10 out of 54 African states have drafted new constitutions to reflect some of the demands and aspirations mentioned above. In fact, between 2010 and 2016, eight African countries have been in the process of drafting Constitutions and some have been adopted. These are: Egypt, Liberia, Kenya, Somalia, Tunisia, Tanzania, Zambia and Zimbabwe. Each of these countries has achieved different levels of progress and not all have concluded the process successfully. In fact, where the process has been successfully concluded, such success has been dampened by a slow comprehensive legal reform which could have aligned other pieces of legislation extant within a state to the new ideology adopted by the Constitution. This is telling in countries such as Kenya where despite adopting a new Constitution in 2010 which protects an array of rights, Kenya still has a discriminatory civil registry which discriminates against people of Nubian decent. However, both successful and unsuccessful processes offer lessons that can strengthen future constitution drafting attempts on the continent. More so, because, there is persuasive conviction that African governments do understand that the most critical aspects of a Constitution-making processes, is that it transcends beyond paperwork to actual implementation in order to ensure that constitutional provisions are not mere legal rhetoric.
Elvis Fokala & Richard Calland
African Network of Constitutional Lawyers