Constitutions are the bedrock of multiparty democracies. Tension between the principles of democracy – rule by the people – and constitutionalism, as a predominantly elite driven process, have increased across the African continent as constitutional reforms have become regular occurrences in many states since the early 1990s. Some of these reforms have strengthened democratic ideals, while others have opened states up to greater abuses of power. As many African states continue to grapple with the consolidation of democratic norms and institutions into their legal frameworks, they have simultaneously been constrained by the remnants of colonial era constitutions. Colonial era states were deliberately CHECKS AND BALANCES: constructed to propagate elites in the governance of the colony, a system which has in many modern African states been reinforced by African political elites in furthering narrow interests. When political leaders, elites and other interest groups African constitutions and democracy undermine and weaken the constitution they weaken the very fabric of the society they claim to serve. When they weaken and abuse state institutions they weaken in the 21st century the very mechanisms created to give life to a constitution's ambitions. In this edited volume, some of Africa's leading academics seek to answer questions such as: “If constitutional changes continue to be elite driven processes – excluding citizens – can constitutions ever truly be 'living documents' providing the foundations to build and consolidate democratic norms and institutions in Africa?” Edited by Grant Masterson and Melanie Meirotti Electoral Institute for Sustainable Democracy in Africa CHECKS AND BALANCES i ii CHE CKS AND BALANCES A FRICAN CONSTITUTIONS AND DEMOCRACY IN THE 21ST CENTURY E dited by Grant Masterson and Melanie Meirotti Foreword by Justice Johann Kriegler Former South African Constitutional Court Judge iii Published by EISA 14 Park Road, Richmond Johannesburg South Africa P.O Box 740 Auckland Park 2006 South Africa Tel: +27 11 381 6000 Fax: +27 11 482 6163 Email: [email protected] www.eisa.org.za ©EISA 2017 ISBN: 978-1-920446-67-3 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of EISA. EISA is a non-partisan organisation which seeks to promote democratic principles, free and fair elections, a strong civil society and good governance at all levels of African society. EISA gratefully acknowledges the financial support for this project from the Department for International Development (DFID), the Embassy of Finland in Pretoria, the Embassy of Sweden and the Swiss Agency for Development and Cooperation (SDC). Copy editor: Pat Tucker Research contributions: Robert Gerenge Layout and design: Sue Sandrock Cover design and printing: Corpnet Design iv CONTENTS Abbreviations and Acronyms vi Foreword Justice Johann Kriegler viii Introduction Grant Masterson 1 SECTION ONE: THE HISTORICAL AND POLITICAL CONTEXT OF CURRENT AFRICAN CONSTITUTIONS First-generation Constitutions in Africa Tom Lodge 15 Africa’s Constitutional Developments after 1990: Constitution- Building for Democracies? Winluck Wahiu 27 Presidential Term Limits through Constitutional Amendments in Africa: Deconstructing Legitimacy Charles Manga Fombad 45 Pursuing the Status Quo or Regime Change?: A Critical Analysis of External Influence on Presidential Term Limits in Africa Dossou David Zounmenou and Segun Rotimi Adeyemo 59 SECTION TWO: FROM THEORY TO IMPLEMENTATION: CONSTITUTIONAL REFORM IN PRACTICE ‘Unconstitutional Changes of Governments’ and Limitations to African Union/Regional Economic Communities’ Responses André Mbata Mangu 77 The Impact of Regional and Sub-regional Norms and Standards on Democratic Governance in Promoting Constitutionalism in Africa Nokukhanya Ntuli 89 Can new Constitutions be Produced Without Political Crisis?: The Problematic Case of Zambia’s History of Constitutional Reform Grant Masterson 102 Transitional Constitutionalism Constrains Constituent Power: The Case of Egypt Ebrahim Deen 113 Conclusion Grant Masterson 128 The Authors 138 Consolidated Bibliography 141 v A BBREVIATIONS AND ACRONYMS ACDEG African Charter on Democracy, Elections and Governance ACHPR African Charter of Human and Peoples’ Rights ACJHR African Court of Justice and Human Rights AFDL Alliance of Democratic Forces for the Liberation of Congo-Zaire AGA African Governance Architecture AMU Arab Maghreb Union ANC African National Congress APRM African Peer Review Mechanism APSA African Peace and Security Architecture AU African Union AUCPCC African Union Convention on Preventing and Combating Corruption CA Constituent Assembly CAR Central African Republic CEN-SAD Community of Sahel Sub-Saharan States CODESA Convention for a Democratic South Africa COMESA Common Market for Eastern and Southern Africa COs Civic organisations CR Council of Representatives CRC Constitutional Review Commission DRC Democratic Republic of Congo EAC East African Community EAS East Asia Summit EBCs Electoral Boundaries Commissions ECCAS Economic Community of Central African States ECOSOC Economic, Social and Cultural Council ECOWAS Economic Community of Western African States EISA Electoral Institute for Sustainable Democracy in Africa ELF Eritrean Liberation Front EMBs electoral management boards EPRDF Ethiopian Peoples’ Revolutionary Defence Forces GNU government of national unity IGAD Intergovernmental Authority on Government MB Muslim Brotherhood MMD Movement for Multiparty Democracy NCC National Constitutional Commission Nepad New Partnership for Africa’s Development NGOs non-governmental organisations NLM National Liberation Movement NP National Party OAU Organization of African Unity OPDS Organ on Politics, Defence and Security PAP Pan African Parliament vi PEC Presidential Election Committee PSC Peace and Security Council PSC Peace and Security Council RECs regional economic communities SADC Southern African Development Community SCAF Supreme Council of the Armed Forces SCC Supreme Constitutional Court SIPO SADC Indicative Strategic Plan for the Organ TCDZC Technical Committee for the Drafting of the Zambia Constitution TGE Transitional Government of Ethiopia UN United Nations UNIP United National Independence Party vii FOREWORD I n the two decades since EISA was founded representative democracy has become the accepted norm across Africa. Genuine, free, fair and periodic elections are recognised as the essential foundation of free societies. We have developed the capacity to conduct such elections and learnt – administratively and politically – that elections are not occasional convulsive hurdles but are part of an ongoing cyclical process. In this EISA has played a vital role. Credible elections were held in places where before they had been unthinkable. Elections became the prescribed rite of passage for communities emerging from conflict and tyranny. Progress beckoned and peoples hoped to build their futures free under the law. But disillusionment followed. Although the shackles of colonialism could be cast off, hostilities put to rest and transitional elections held, historical divisions and ancient resentments lingered while strongman-rule prevailed. Sadly, the sunny uplands remained a dream. Picking up these concerns and drilling down to the next level EISA focused its 10th annual symposium on the constitutional framework within which limping democracies have to function. This publication represents the distilled essence of those deliberations. It should not only be compulsory reading for every electoral administrator on our continent but should be a well-thumbed resource on the desk of every political leader. It explores why imposed constitutions chafe, why constitutional amendments seem to beget ever more amendments and why – notwithstanding constitutional updates designed to address specific socio-political ills – those very ills persist frustratingly or, worse, are succeeded at times by even more troublesome features. The threefold lesson is clear. First, just as good elections are not the cause but the product of democracy, so a constitution does not cause a democracy to function properly. Even a model constitution does not of itself produce a democratic society. Even a constitution painstakingly constructed by wise founders does not vouchsafe success. The society concerned has to make its constitution work. Secondly, just as elections are not isolated happenings but form part of an integrated process, so making a constitution work is an ongoing, unending process. Democratic societies make their constitutions work, warts and all. Reviewing, reforming, adapting, amending, tweaking, tampering – call it what you like – changing a constitution to make it fit the needs of the moment is at best dangerous and usually ill-conceived. If you can’t get the old familiar viii machine to work satisfactorily what makes you think that you can satisfactorily operate a newfangled device? Constitutional amendments are all too often no more than window-dressing and a cop-out. Thirdly, closely linked to the first two but more fundamental, we have come to relearn and make our own the time-honoured truism that the price of freedom is eternal vigilance. We’ve seen some 40 examples of rewritten constitutions in Africa over the last generation: save for an insignificant handful they have done little more than rearrange the