_28.2_HESSEBON_ARTICLE 1 (DO NOT DELETE) 3/3/2015 11:39 AM
THE FOURTH CONSTITUTION-MAKING WAVE OF AFRICA: CONSTITUTIONS 4.0?
Gedion T. Hessebon
I. INTRODUCTION Anyone who follows current affairs in Africa would notice the number of constitution-making processes underway throughout the continent. This paper argues that these processes form part of a new and ongoing wave of constitution- making. This is the fourth wave of constitution-making in Africa, the products of which this article refers to as ―constitutions 4.0.‖ This article seeks to identify and discuss the causes, features, and distinguishing qualities of the fourth wave that set it apart from earlier constitution-making waves in Africa. Tentatively, two such features or solutions can be identified: first, the reduction of power of the executive to prevent abuse of incumbency; and second, the devolvement of government and constitutional decentralization to avoid politicized ethnicity. This paper then argues that the 2010 Kenyan Constitution is the most emblematic of the newest batch of African constitutions. Based on this premise, the Kenyan Constitution will serve as a case study to show the substantive and qualitative differences of constitutions 4.0 from earlier African constitutions. This article also references the constitutions of other African countries, such as Nigeria, Ethiopia, Ghana, and South Africa, whenever appropriate. Section II of this paper discusses the metaphor of constitution-making waves and its applicability in Sub-Saharan Africa. Discussions of the distinguishing features of constitutions 4.0 and the problems of incumbency abuse and politicized ethnicity in Kenya prior to the adoption of the Kenyan Constitution in 2010 follow. The purpose of these discussions is to show the problems the new Kenyan Constitution had to address and the backdrop against which it was adopted. The final section of the paper discusses the manner in which the new Kenyan Constitution has been used to address these problems. This discussion provides both a case study and an example of how constitutions 4.0 are responding to some of the most common political problems in the continent.
II. THE METAPHOR OF WAVES AND OVERVIEW OF CONSTITUTIONAL DEVELOPMENTS IN SUB-SAHARAN AFRICA To facilitate this section’s discussion, it is first necessary to discuss briefly the