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Constitutionalisation of the Rights of Political Parties in Africa and Its Impact on Constitutionalism: a Comparative Study of T

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Constitutionalisation of the Rights of Political Parties in Africa and Its Impact on Constitutionalism: a Comparative Study of T CONSTITUTIONALISATION OF THE RIGHTS OF POLITICAL PARTIES IN AFRICA AND ITS IMPACT ON CONSTITUTIONALISM: A COMPARATIVE STUDY OF THE CENTRAL AFRICAN REPUBLIC, SENEGAL AND SOUTH AFRICA by Sonia Esther Vohito - Anyanwu Submitted in fulfilment of the requirements for the degree Doctor Legum (LLD) In the Faculty of Law, University of Pretoria August 2018 Supervisor: Professor Charles Manga Fombad 1 © University of Pretoria Declaration of originality I, the undersigned, hereby declare that this thesis, which I submit for the degree Doctor Legum (LLD) in the Faculty of Law at the University of Pretoria, is my own work and has not previously been submitted for a degree at another university. I have correctly cited and acknowledged all my sources. Signed: Date: Supervisor: Date: 2 © University of Pretoria Dedication To my husband, Chikezie Anyanwu, for his love and support. To our children, Olivier Uchenna, Emmanuelle Amarachi and Gabriel Chiwetel; you are my driving force and the reason why this thesis came to life. To my parents, Professor Michel Dieudonné Vohito and Doctor Jeanne Angèle Vohito, who are my source of inspiration. 3 © University of Pretoria Acknowledgment While I juggled between writing this thesis, performing my daily job as child rights activist, caring for my children and fighting for my child with special needs, I have incurred many debts. I am immensely grateful to my supervisor, Professor Charles Manga Fombad, for his guidance and support along this journey. Thank you for your rigour, insightful comments and for pushing me to my limits. Thank you to Professor Frans Viljoen for his thoughtfulness and encouragement. To Professor Mai Cheng, thank you for sharing your knowledge and for always referring me to useful resources. A special thank you to Firmin Mokoue for his technical assistance and for providing me with valuable resources from the CAR. It would have been difficult to write this thesis without an expert in Bangui. Thank you to all my friends and colleagues who encouraged me during this journey and those who kindly agreed to proofread my work, including Triona Lenihan, Remember Miamingi and Elvis Fokala. I am very grateful to my friends, Nanou Manga and Alina Miamingi, who supported me throughout the preparation of this thesis. Thank you, Alina, for your words of wisdom and continuous encouragement. Finally, to my siblings, Stephan, Muriel, Cécile, Olivier, Nancy Vohito and their families, thank you for your love and encouragement! In loving memory of Emma Nathalie Christine. Oli, this is for you! 4 © University of Pretoria Acronyms and abbreviations ACDEG African Charter on Democracy, Elections and Governance ACHPR African Charter on Human and Peoples' Rights ANC African National Congress AU African Union CAR Central African Republic CSOs Civil Society Organisations ECOWAS Economic Community of West African States ICCPR International Covenant on Civil and Political Rights IEC Independent Electoral Commission MESAN Movement for the Social Change of Black Africa OAU Organisation of African Unity PDS Parti Democratique Sénégalais PR Proportional representation PSC Peace and Security Council RDA Rassemblement Démocratique Africain RDC Rassemblement Démocratique Centrafricain SADC Southern African Development Community SAPC South African Communist Party Universal Declaration Universal Declaration of Human Rights UN United Nations UPS Union Progressiste Sénégalaise ZANU-PF Zimbabwe African National Union - Patriotic Front 5 © University of Pretoria Abstract This thesis examines how the constitutionalisation of political parties is implemented in the political systems of the Central African Republic (CAR), Senegal and South Africa, and how this affects constitutionalism and the rule of law. These countries’ different political histories and their successful or unsuccessful democratic experiences make them appropriate for selection in this research. The thesis argues that party constitutionalisation is the expression of pluralism, participation and competition. The constitutionalisation of political parties in modern democracies therefore highlights the relevance of political parties as indispensable institutional components of the democratic system and factors of political stability. The thesis finds that, at various levels, the process of implementing party constitutionalisation remains a challenge in the CAR, Senegal and South Africa. The entrenchment of political parties in national constitutions does not necessarily imply that their constitutional rights and obligations are fulfilled and that government authorities, as primary enforcer of the constitution, ensure that appropriate and enabling instruments and mechanisms are in place in this regard. The thesis therefore recommends the entrenchment and promotion of judicial independence in national constitutions as in CAR, Senegal and South Africa. Specific references to the South African constitutional provisions are made with regard to ensuring judicial independence and setting the scope of judicial review by the Constitutional Court. The thesis also highlighted the need for entrenching transparency and accountability institutions in constitutions as a way of protecting political parties against manipulation and pressure from state actors. It highlights the role of international and African Union human rights mechanisms in promoting constitutionalism and party constitutionalisation. 6 © University of Pretoria Table of Contents Acronyms and abbreviations ............................................................................ 5 Abstract ............................................................................................................ 6 General Introduction ...................................................................................... 12 Chapter 1 General Introduction 1.1 Background .............................................................................................. 12 1.2 Problem statement ................................................................................... 14 1.3 Theoretical framework ............................................................................. 16 1.3.1 The evolving nature of constitutionalism ...................................... 17 1.3.2 Framework of analysis for party constitutionalisation ..................... 18 1.3.3 Models of party constitutionalisation .............................................. 18 1.4 Research questions ................................................................................. 20 1.5 Aims and objectives ................................................................................. 20 1.6 Significance of the study .......................................................................... 21 1.7 Literature review ...................................................................................... 25 1.8 Research methodology ............................................................................ 28 1.9 Organisation of chapters .......................................................................... 30 Chapter 2 Theoretical framework and evolution of the constitutional status of political parties in Africa 2.1 Introduction .............................................................................................. 32 2.2 Constitutionalism and party constitutionalisation...................................... 33 2.2.1 The concept of constitutionalism .................................................... 33 2.2.2 Core elements of constitutionalism ................................................ 35 2.2.3 Rationale of party constitutionalisation .......................................... 38 2.2.4 Models of party constitutionalisation .............................................. 42 2.3 The international framework for constitutionalism and its implications ..... 45 2.3.1 The AU agenda on constitutionalism and good governance .......... 47 2.3.3 Implications of the international framework .................................... 50 7 © University of Pretoria 2.4 Party constitutionalisation in Africa ....................................................... 55 2.4.1 Historical perspective and post-independence period ................... 55 2.4.2 The constitutionalisation of the one-party system and its implications for constitutionalism ............................................................ 57 2.5 Post-1990 period: Emerging party systems and possible implications for constitutionalism ............................................................................................ 60 2.5.1 The emergence of multi-partyism in the 1990s .............................. 61 2.5.2 Dominant party systems ................................................................ 63 2.6 Conclusion ............................................................................................... 65 Chapter 3 Legal background and historical evolution of party constitutionalisation in CAR, Senegal and South Africa 3.1 Introduction .............................................................................................. 68 3.2 Party constitutionalisation in CAR: historical perspectives ....................... 69 3.2.1 General background ...................................................................... 69 3.2.2 Evolution of constitutional regulation of political parties in CAR ..... 70 3.2.3 Evolution of legal regulation of political parties in CAR .................. 73 3.3 Party constitutionalisation in Senegal: historical perspectives ................. 74 3.3.1 General
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