Constitutional Incompatibility: Africa’s Imported Laws of Governance

Constitutional Incompatibility: Africa’s Imported Laws of Governance

Constitution: the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it. A written instrument containing the fundamental rules of a political or social organization[1]. 

Africa is criticized for failed political and economic systems often attributed to lack of rule of law, poor leadership, lack of industries, poverty and disease among other calamities. However, these variables are not unique to African states. This article seeks to address how constitutions can undermine the rule of law in African states. For the most part, nineteenth-century European laws have been the primary foundation of law in Africa. The question is: what happens when a document fails to encompass aspects of the ‘political and social organization’ of people within a state? What good is a constitution if it is a stranger to the people and place it is meant to police?

Post-colonial Africa received constitutions that were created for and by Europeans. The Kenyan constitution, for instance, was heavily indebted to English law, and had been drafted in London before it was shipped back to Kenya in 1963.  Despite having been amended more than 50 times by 2010, the constitution was still ill-suited to govern the populace. It gave the president wide-ranging powers, provided for no prime minister, and impaired multiparty politics. It also created administrative boundaries and administrative positions that only served to calcify ethnic and regional differences. These differences have resulted in ethnic clashes after every election since 1978. The constitution has also resulted in massive nepotism and tribalism, given the absolute power vested in a selected few government officials as a result of the centralized system of government. Zimbabwe also continues to experience the perils of an inherited constitution, which gave the president unlimited powers above the law. Robert Mugabe is currently in his 31st year as president of Zimbabwe, and is considering running for office in the coming elections in 2012.

Peter T. Leeson, a professor of capitalism at George Mason University discusses an interesting argument regarding the role of the state, and therefore the constitution, in undermining the rights of Somalis. He contends, “while the state of [Somalia’s] development remains low…, Somalis are better off under anarchy than they were under government”[2]. This begs the question to what extent the Western construction of a Somali state, through its constitution, has resulted in Somalia’s failure today.

Empirical benefits of autochthonous constitutions have manifested themselves across many states in Africa that continue to realize the incompatibility of their socio-political frameworks with the rules and regulations handed over to them by their colonizers, or ‘suggested’ to them by the West. South Africa is an example of a state that introduced a new constitution during the post-apartheid period. The new South Africa necessitated building a nation from the ground up, and this entails laws and regulations tailored to fit the new status quo. After years of widespread ethnic clashes, Kenya also passed a new constitution that was a product of public opinion and was popularly voted in via a referendum. Rwanda passed a new constitution in 2003 and has been praised for its parliamentary quota system that has placed more women in parliament than in any other African state. Such provisions were absent in the constitution Rwanda inherited from its French colonizers.

It may well be the case that the first step in solving Africa’s problem is the creation of rules and regulations for the people, by the people. A great percentage of constitutions governing African countries are alien to the cultures and practices of the citizenry. A similar argument of incompatibility of Western institutions with African ways of life is often made for ideologies such as democracy, which continues to struggle to find a place within the African political framework. While an African Democracy has yet to be realized, it is evident that countries can and have created endogenic constitutions that have resulted in prospering states.

 

 


[1] Dictionary.com | Find the Meanings and Definitions of Words at Dictionary.com. Web. 26 Oct. 2011. <http://www.dictionary.com>.

[2] Leeson, P. “Better off Stateless: Somalia before and after Government Collapse.” Journal of Comparative Economics 35.4 (2007): 689-710. Print.

 

Photo from Creative Commons

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