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Fostering Constitutionalism in Africa

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Fostering Constitutionalism in Africa Fostering Constitutionalism in Africa Charles Fombad and Christina Murray (editors) 2010 Fostering Constitutionalism in Africa 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: ABC Press Cape Town To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za Cover: Yolanda Booyzen, Centre for Human Rights ISBN: 978-09814420-8-2 © 2010 Réseau Africain de Droit Constitutionnel African Network of Constitutional Lawyers This book is the first in the ‘Rule of Law in Africa’ series and the financial assistance of the World Bank is gratefully acknowledged. TABLE OF CONTENTS TABLE DES MATIÈRES INTRODUCTION v CONTRIBUTORS xiv Presidential term limits and their impact on 1 1 constitutionalism in Africa Les limites du mandat présidentiel et leurs 183 impacts sur le constitutionnalisme en Afrique Charles Fombad and/et Nat Inegbedion Is the end near for the political question doctrine 31 2 in Nigeria? Est-ce bientôt la fin de la doctrine de la 215 question politique au Nigéria? Enyinna Nwauche The independence of prosecuting authorities: 61 3 The Malawi experience L’indépendance du parquet: l’expérience du 249 Malawi Mabvuto Herbert Hara The politics of constitution-making in Zambia: 87 4 Where does the constituent power lie? La politique d’élaboration de la Constitution en 275 Zambie: où se situe le pouvoir constituant? Melvin L M Mbao The making, unmaking and remaking of the 119 5 constitution of Côte d’Ivoire: An example of chronic instability Faire, défaire et refaire la Constitution en Côte 309 d’Ivoire: un exemple d’instabilité chronique Djedjro Francisco Meledje The new constitution of the Democratic Republic 149 6 of Congo: Sources and innovations La nouvelle Constitution de la République 341 Démocratique du Congo: Sources et innovations Grégoire Bakandeja wa Mpungu iii BIBLIOGRAPHY 375 TABLE OF CASES 390 TABLE OF STATUTES 394 TABLE OF INTERNATIONAL INSTRUMENTS 396 iv INTRODUCTION This volume comprises a selection of the papers presented at a conference run under the auspices of the African Network of Constitutional Lawyers in Nairobi in April 2007. The theme of the conference, and now the title of the book, was ‘Fostering Constitutionalism in Africa’. Twenty two papers were presented by participants from sixteen different countries, covering Francophone, Anglophone and Lusophone jurisdictions. Discussion at the conference was vibrant, reflecting the shared concern of African constitutionalists about constitutionalism in Africa and, sometimes, bewilderment at the different constitutional institutions and cultures in jurisdictions with different histories. But, underpinning all the discussion was a sense of the importance of protecting the rule of law and human rights on the continent and the urgency of finding solutions to common problems, particularly that of controlling executive power, the problem which lies at the heart of public law. Each of the contributions to this volume is concerned with these matters. Djedjro Meledje’s chapter underscores one of the most vexing problems that Africa faces today: how can you lay down the foundations for a stable, modern and democratic state in a ‘country’ that is divided by civil strife? There is no better illustration of this paradox than Côte d’Ivoire. Just over a decade ago, this was one of the islands of peace and political stability in West Africa but since the late 90s it has become, in Meledje’s words, ‘a veritable laboratory for constitutional changes’ — which, in many respects, explains his intriguing title, ‘The making, unmaking and remaking of the constitution of Côte d’Ivoire’. The numerous constitutional changes, both formal and informal, that have taken place in Côte d’Ivoire, particularly after the adoption of the August 2000 constitution, lead Meledje to question whether the changes are changes in the constitution or changes of the constitution. The uncertain and unpredictable process of construction and deconstruction leads to his suggestion that it is at present difficult to determine precisely either the content or the scope of the constitution of Cote d’Ivoire. The constitutionalism theme is pursued in Bakandeja wa Mpungu’s chapter in the context of the sources of law and innovations that feature in the 18 February 2006 Constitution of the Democratic Republic of Congo (DRC). He points out that this constitution marks a significant turning point in a country that has been gripped by civil war over the last decade. The DRC has had seven constitutions in its 45 years of independence with 32 years spent under one constitution that was regularly revised simply through a presidential speech, a presidential communique or just silence. Unlike previous constitutions, the new DRC constitution was drafted by a committee of experts and approved at a referendum. Mpungu examines this new constitution from a ‘multidisciplinary v perspective’ that departs from a legal analysis but takes account of and integrates the empirical, historical and comparative sociological and anthropological perspectives. From this analysis, he concludes that the main influences on the constitution have come from French and Belgian constitutional law with some aspects borrowed from certain African practices. The main innovations are presidential term limits and the introduction of a strong system of regional government. Mpungu expresses some doubts whether this quest for constitutionalism will end with this constitution because of the numerous weaknesses that have manifested themselves within the short while since the constitution came into force. Melvin Mbao’s paper is also a tale of a long process of constitutional change, although in a less violent context than that of either Côte d’Ivoire or the DRC. Since its independence constitution was adopted in 1964, Zambia has seen recurrent attempts by civil society and minority political parties to reduce the hold of the executive over constitutional change and to secure a process of constitutional review in which the public has a say. As elsewhere in Africa, the 1990s saw a dramatic change in Zambia when, first, the constitution was amended to introduce multiparty politics and then Kenneth Kaunda, who had been president since independence, was beaten at the polls by Frederick Chiluba. But, as Mbao recounts, and as in other parts of Africa, the determination of the executive to maintain full control of constitutional change remained. Even the current process, under the National Constitutional Conference Act of 2007, initiated by the late President Mwanawasa, which is more sympathetic to popular involvement than any previous process of constitutional change in Zambia is a compromise between the executive and the forces of civil society. As Mbao suggests, the proposals of the Mun’gomba Constitutional Review Commission concerning the constitution making process, which preceded the adoption of the National Constitutional Conference Act, reflect the influence of other African jurisdictions — commissioners appear to have drawn ideas from the Kenyan process just as Kenyans may have learnt from their neighbours in West Africa. But reference to Kenya provides a stark reminder of how important it is in constitution making to secure a balance of power between elites and citizens that ensures that both sides remain committed to the process and open to reaching solutions which both will honour. As became painfully clear at the end of 2007, not only did the Kenyan constitution making process fail, but, and perhaps as a result of this, Kenya’s political process was engulfed in violence. Mbao, mindful of the ‘deep seated mistrust between the government on the one hand and opposition political parties, civil society organizations and the church on the other’ remains unsure whether Zambians have struck the right balance and whether Zambians will secure a constitution that they ‘will identify as their own’. Charles Fombad and Nathaniel Inegbedion are concerned not with the process of constitution making but with constitutional design and the control of executive power. They trace the growing trend to limit the terms of Presidents and link it to the ‘post-1990 constitutional vi rights revolution on the continent’. Their discussion of the famously unsuccessful attempts by three powerful Presidents, Chiluba of Zambia, Bakili Muzuli of Malawi and Olusegun Obesanjo of Nigeria, to prolong their time in power demonstrates the strength of the commitment of many Africans to limiting access to power. But Fombad and Inegbedion are not sanguine about the situation. Certainly, they hope that the evolution of a culture of constitutionalism in Africa, the insistence of the international community and especially the African Union on constitutional change of government and the vigilance of an ‘enlightened civil society’ will lead to leaders respecting term limit provisions. However, they also propose providing incentives for incumbents to hand over power. Here they move onto more controversial territory.
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