THE IMPLEMENTATION OF MODERN AFRICAN CONSTITUTIONS: Challenges and Prospects Charles Manga Fombad (Editor) Licence en Droit (Yaounde), LLM PhD (University of London), Diploma Conflict Resolution (Upsalla) Professor of Law, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria 2016 The implementation of modern African Constitutions: Challenges and prospects Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: BusinessPrint, Pretoria To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Cover: Daniël du Plessis, Hond CC ISBN: 978-1-920538-65-1 © 2016 The financial assistance of the Konrad Adenauer Stiftung is gratefully acknowledged TABLE OF CONTENTS Foreword v Contributors vii PART 1 GENERAL INTRODUCTION Introduction 1 1 Charles M. Fombad Problematising the Issue of Constitutional 10 2 Implementation in Africa Charles M. Fombad PART 2 COUNTRY CASE STUDIES Constitutional Implementation: 25 3 The Nigerian Experience Nathaniel A Inegbedion Constitutional Implementation: 55 4 The Swaziland Experience Thulani R. Maseko and Lukman Abdulrauf Three Years into the Implementation of the 78 5 Zimbabwean Constitution of 2013: Progress, Challenges, Prospects and Lessons Tinashe Chigwata Constitutional Implementation 20 Years Later: 108 6 The Uganda Report Card Donald Rukare PART 3 THE ROLE OF CIVIL SOCIETY ORGANISATIONS The Role of Civil Society Organisations and the 132 7 Chapter 9 Institutions in Implementing South Africa’s Constitution Wandisa Phama and Palesa Madi Women’s Rights and Gender Equality in the New 156 8 Zimbabwean Constitution: The Role of Civil Society in Implementation and Compliance Makanatsa Makonese iii PART 4 THE USE OF SPECIALISED CONSTITUTIONAL COMMISSIONS The Use of Specialised Commissions for 177 9 Constitutional Implementation: An Insider View of the Kenyan CIC Kamotho Waiganjo The Use of Specialised Commissions for 197 10 Constitutional Implementation: An Outsider View of the Kenyan CIC Jane R. Serwanga PART 5 GENERAL CONCLUSION Constitutional Implementation in Perspective: 218 11 Developing a Sustainable Normative Constitutional Implementation Framework Charles M. Fombad iv FOREWORD For supporters of democratic rights and freedoms, the separation of powers and respect for the rule of law, studying a good number of African constitutions is comparable to reading a sheet of harmonic, exuberant music. Unfortunately, the orchestra is not performing in such a way that the intended fine sound of this music can be heard by the proposed audience. Equally, well-crafted African constitutional texts are rarely transformed into legal reality. All over the continent, the arduous, time-consuming and expensive enterprise of drafting a constitution is not followed by serious efforts at implementation. The focus of this book is on the challenges of implementation that emerge after a constitution is drafted. The transformation of the constitutional text into action is as crucial as writing the text itself. This is particularly so given that the constitution is the supreme law of the land. It is the basis for the state, as all state bodies, powers, institutions and laws are derived from it. The values, vision, and underlying understanding of the state, its people and the balance between their various interests, are embodied in the constitution, and provide the legitimation of a state’s existence as well as the limitations of its power. A constitution is often full of general and abstract principles, so on its own it is not suitable as a practical guide for everyday business. As such, concrete and clear legal steps are necessary to translate the constitution into action and allow the text to enter into perceived reality for the people. Without implementation, the goal of every constitution remains unachieved. As a result, the text may be valued as a nice piece of poetry – but little more. It goes without saying that the objectives of a constitution would not be met if its implementation were left at the discretion of the heads of state and other state officials. Since the people are the owners of the constitution, the state is obliged to implement its provisions for the common good as efficiently and rapidly as possible. There are no legal grounds excusing any delay. Moreover, only a timely and complete implementation will prevent a disconnection of the people from the state. Looking at current developments on the continent, the reluctance by those in authority to accept and respect state power is striking. This depressing trend goes hand- in-hand with the misuse of power and the arbitrary, self-serving interpretation of laws and constitutions. Submission to the rule of law by all members of society, regardless of their status, is crucial. Given the problematic history of state-building in Africa, reliable constitutions are of fundamental importance. The transformation of a constitution into reality requires continuous and disciplined action. This task has to be carried out not only by the three branches of government (the executive, the legislature and the courts) but v by ordinary citizens. Constitutional implementation also requires a favourable legal framework developed from and consistent with the constitution. In some cases, specialised implementation commissions created by the constitution itself drive the process. In such cases, the independence and impartiality of the implementing commission is critical to its success. It is worth noting too that constitutional implementation happens at all levels within a state. Its success depends on several other factors, including the level of citizens’ knowledge of their fundamental constitutional rights and duties, access to justice and the availability of independent judicial enforcement mechanisms. The chapters of this edited volume are selected from papers presented at the University of Pretoria in June 2016 at a conference entitled “Implementation of modern African constitutions: challenges and prospects”. The event was organised jointly by the Institute for International and Comparative Law in Africa of the Faculty of Law, University of Pretoria, and the Konrad Adenauer Stiftung Rule of Law Program for Sub-Saharan Africa. The objective of the conference was to enable scholars, legal practitioners, judges and civil society activists from different countries in sub-Saharan Africa to examine and debate the challenges that countries on the continent face in implementing their constitutions. This book reflects some of the pertinent issues raised by the current state of implementation of several modern African constitutions and comes up with many interesting ideas on how the situation could be improved. I hope policy- makers, constitutional law scholars, researchers and indeed all Africans will find this study useful. I wish to express my appreciation to the authors for their thought- provoking and well-researched contributions, which undoubtedly will enrich the debate by providing deeper understanding of the reasons for constitutions’ failure and success. In addition, the authors provide fresh and insightful perspectives which can ensure that the promising words of the many African constitutions become a living reality. There is no need for Africa to become a graveyard for beautiful constitutions. Finally, special thanks are given to Professor Charles Fombad for his hard work in editing the contributions for this collection. Dr Arne Wulff vi CONTRIBUTORS Lukman A. Abdulrauf is a lecturer in the Department of Public Law, University of Ilorin, Nigeria. He holds an LL.B from the Ahmadu Bello University, an LL.M from the University of Ilorin and an LL.D from the University of Pretoria. He was called to the Nigerian bar in 2010 and qualifies as a barrister and solicitor of the Supreme Court of Nigeria. Dr Abdulrauf has also undergone some professional training in Alternative Dispute Resolution (ADR). His research and teaching interests are in privacy and data protection laws, Information and Communication Technology (ICT) law and criminal law. He currently teaches courses around these areas at both undergraduate and postgraduate levels at the Faculty of Law, University of Ilorin, and has published widely in these areas in local and international journals. Tinashe C. Chigwata holds a PhD in Public Law from the University of the Western Cape (UWC) in Cape Town, South Africa. He is currently a postdoctoral fellow at the Multilevel Government Initiative (MLGI) of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights at UWC. His research focuses on the role of local and provincial governments, decentralisation and federalism (multilevel government), particularly how these ways of organising a state can be used to advance development, deepen democracy and realise peace. He is also interested in research that focuses on the intersection between the state, law and society, and he believes in multidisciplinary approaches to