Abusive Constitutionalism in Africa a Threat to Efficient and Effective Public Administration Systems?

Abusive Constitutionalism in Africa A Threat to Efficient and Effective Public Administration Systems?

B Basheka* Uganda Technology and Management University Uganda [email protected]

Christelle J Auriacombe School of Public Management, Governance and Public Policy University of Johannesburg [email protected]

ABSTRACT

The military coups that once dominated post-independence Africa have been replaced with the threat of abusive constitutionalism, or “constitutional coups”. In abusive constitutionalism, incumbent political leaders use constitutional amendments to establish power. This article argues that the process has implications for building strong administrative systems. In a bid to establish a firm power base, incumbent leaders undermine the institutional systems of accountability and focus on their own positions. Prospective autocrats have used constitutional amendments and replacements in a number of African countries to undermine democracy. These leaders have made subtle constitutional changes to entrench their positions and to disable administrative institutions, courts and other accountability institutions with the help of their supporters. However, in some African countries, leaders have respected their countries’ constitutions in terms of power and age limits. Strong institutions have been created where leaders have respected constitutional prescrip- tions, such as prohibiting a third leadership term. The methodological approach of this study is based on unobtrusive research methods by way of a conceptual, documentary and historical/comparative analysis. The authors argue that constitutionalism promotes good administrative systems while abusive constitutionalism has negative implications to create sound administrative systems.

Keywords: Constitutionalism; Democracy; Political justice

Volume 11 number 2 • June 2019 103 INTRODUCTION

From antiquity to the modern era, philosophers, political scientists, legal scholars and jurists have recognised constitutionalism and democracy as the foundation of a fair, just and equitable society (Fombad 2011:1007). A constitution stipulates how power is organised within a state, so that those in power are accountable to a set of laws (Yash 1994:215). The ultimate goal is to prevent the twin evils of tyranny and anarchy (Fombad 2011:6) that tend to characterise countries where the rule of law is not respected. In Africa, the history of constitutionalism and constitutional democracy has been marred with injustice. Grace (2016:3) differentiates between flexible and rigid constitutions and observes that countries that value democracy should have special procedures to amend constitutions. Countries that do not have a high regard for democracy and constitutional supremacy have more flexible procedures for changing their constitution. It has been argued that many of Africa’s problems have been caused by the ease with which constitutional provisions are repealed, changed, suspended or ignored (Fombad 2007:3). An absence of constitutionalism and little respect for the rule of law hamper efforts to build strong public administration systems. Constitutionalism thrives within a framework that promotes constitutional and political justice. In a society where the constitution reigns supreme, there is a deliberate attempt to nurture strong institutions and administrative systems.

Constitutionalism is rooted in social contract theory, which conceived the idea of government. There are outstanding social contract theorists like John Locke, Thomas Hobbes and Jean Jacques Rousseau among others that have shaped our idea of constitutionalism and formation of government as we know it today. Indeed, within Political Science, Public Administration and legal discourses, constitutionalism is compared with the views of Hobbes and Locke, who defended the notion of constitutionally unlimited sovereignty. Hobbes, believed that the notion of limited sovereignty was incoherent and that all law is commanded by a sovereign person or body of persons. He wrote the book Leviathan, which was a defence of the absolute power of kings. The title of the book referred to a leviathan, a mythological, whale-like sea monster that devoured whole ships. Hobbes linked the leviathan to government, a powerful state created to impose order (Hobbes 1651; Curley 1994).

Subsequently, in 1690, Locke published his Two Treatises of Government where he generally agreed with Hobbes about the brutality of the state of nature, which required a social contract to ensure peace (Constitutional Rights Foundation 2004: Internet Source). Locke stated that the primary purpose of the government and law was to uphold and protect the natural rights of men and women. Furthermore, Locke as argued

104 African Journal of Public Affairs by Hoff (in Constitutional Rights Foundation 2004: Internet Source) stated that as long as the government fulfilled this purpose, the laws were valid and binding. However, when government ceased to fulfil this purpose, the laws would lose their validity and the government could be overthrown. The basic argument in these discourses was that citizens or humans have certain fundamental rights that needed to be protected. Among the initial rights were the right to life, freedom and estate (property). For the citizenry to exercise these rights, a political society had to be created where constitutional principles could reign supreme. As such, the aforementioned philosophers recognised the supremacy of the law and the constitution (Constitutional Rights Foundation 2004: Internet Source).

The idea behind constitutionalism is to ensure that a constitution is the driving force behind managing state affairs. Furthermore, constitutionalism regulates the relationship between the state and its organs, as well as the relationship between the state and its citizens. In recent years, African countries have made several attempts to change their countries’ constitutions due to the pressures of the “third-term project”. Here, incumbents seek to change their countries’ respective constitutions to serve beyond the constitutionally provided two-term limit, which is a key feature of most constitutions. As Namakula (2016:2) contends, “Constitutional term limits that gained prominence on the African continent in the mid-1990s, as a measure against prolonged stays in power, are currently intensely contested”. However, they have been on the increase and show no signs of evaporating from the African political scene. It is reported that between 2005 and 2015, the presidents of Senegal, Burkina Faso, the Republic of Congo, Congo Brazzaville, Uganda, Burundi and Rwanda, among others, have extended their terms in office through constitutional or other legal amendments (Issaka 2009:4). Dulani (2015:2) noted that 49) of the 64 constitutions adopted or amended between 1990 and 2010 incorporated term limits, which represents 75% of the enactments. However, countries like South Africa, Ghana, Kenya and Nigeria have respected their constitutions in this regard. On 16 May 2006, for example, the Senate of Nigeria rejected a Bill which would have permitted former president Olusegun Obasanjo to serve a third term in office. The conflict was resolved by the votes of elected legislators, rather than through coercion (Posner and Young 2007:126). On 5 September 2017 a judicial ruling by the Kenyan Supreme Court annulled the re-election of former president Uhuru Kenyatta and ordered a fresh election (https://theconversation.com/kenyas-supreme-court- ruling-and-what-it-means-for-the-country-83549). Four of the six justices in the Kenyan presidential petition found that the Independent Electoral and Boundaries Commission (IEBC) did not conduct the presidential election in a manner that was consistent with law, and that it committed “irregularities and illegalities” (https://theconversation.com/ kenyas-supreme-court-ruling-and-what-it-means-for-the-country-83549).

Volume 11 number 2 • June 2019 105 Conceptually, constitutionalism is one measure of a just society and is associated with core features or elements.

The key features of constitutionalism include:

●● There is rule of law; ●● There exists checks and balances to control those in authority; ●● Fundamental rights and freedoms are recognised and protected; ●● There is a separation of powers among government structures; ●● There is an independent judiciary to dispense justice to all; ●● There is a constitutionality of laws; ●● The supreme law of any country controls the amendment of its constitution; and ●● Institutions of government that guarantee, support and protect democracy.

Abusive constitutionalism involves practices and acts that undermine each of these elements. This debate has a long history. This article examines the trends of abusive constitutionalism in selected African countries and attempts to synthesise the common strategies that most leaders use to exert their power. The implications of abusive constitutionalism are examined to help an efficient and effective public administration. To provide context, the conceptual issues regarding constitutionalism and abusive constitutionalism and other associated concepts are addressed.

CONCEPTUAL ISSUES

The concepts “constitution” and “constitutionalism” provide a conceptual framework for a debate on abusive constitutionalism. A country’s constitution outlines how various government institutions are organised, what power is entrusted to each of the institutions and in what manner such power is to be exercised (Gildenhuys and Knipe 1997:1; Grace 2016:3). Constitutions provide rules through which a country’s system operates (Grace 2016:1; Posner and Young 2007:127). Gildenhuys and Knipe (1997:2) state that a country’s constitution aims to limit arbitrary power or action by government; to guarantee the civil rights of the government; to define the operations of government institutions; and to provide for the creation of a multilevel government system, each with its own legislature, executive and judiciary. However, some African leaders have managed to circumvent restrictions by seeking more than two terms in office.

The term “constitutionalism” has different meanings, but the definition Casper (1987:4) presents deserves attention. Casper (1987:4) describes constitutionalism as a term with

106 African Journal of Public Affairs both descriptive and prescriptive meaning. Descriptive constitutionalism refers to the historical struggle for constitutional recognition of the people’s right to “consent” and certain other rights, freedoms, and privileges. Countries, even developed democracies, usually go through political conflicts to establish constitutional order. However, prescriptive constitutionalism incorporates features of government that play a crucial role in a country’s constitution. Weiler and Wind (2003:3) define constitutionalism as “embody- ing the values, often non-stated, which underlie the material and institutional provisions in a specific constitution”. Scharpf (1999:6) believes that the concept of constitutionalism transcends the idea of simply having a constitution. The author states that it covers the legitimacy of political power to guarantee fundamental human rights (Scharpf 1999:6). It expresses the idea of “government for the people”. This implies that political decisions are legitimate when and because they promote pubic well-being.

Constitutionalism encompasses legitimacy, democracy, participation and human rights, as mirrored through institutions and organs of state and society (Asiimwe 2014:23). During the 1990s, African constitutional engineers had the historic opportunity to cor- rect the errors of colonial constitutions upon independence (Fombad 2011:1010). Many countries’ constitutions reflected their move away from one-party authoritarian states to constitutional political order. This move was intended to achieve certain objectives. From an ideological perspective, it aimed to move away from colonial constitutions to demonstrate a spirit of ‘independence’. Most countries adopted new constitutions immediately after independence. Yet, the ‘colonial master’ narrative lingered. A shift away from this trend was needed, which ushered in the new constitution-making processes of the 1990s (Asiimwe 2014:24). Second, countries created new constitutions to translate military rule into civilian governments through what they termed as people-led constitutions. Most leaders had come to power through military struggles. They needed to shed this military cloak, albeit only on the surface. Third, the new constitutions needed to reflect the liberal agenda, like the multiparty system of governance. As such, elections were held as a result of this newly created political space (Posner and Young 2007:130). The following paragraphs will focus on abusive constitutionalism.

When the constitutional terms of African presidents are about to expire or have come to an end, they have a wide range of options. They can abide by the constitutional term limit and stand down through a peaceful handover of power. Power-hungry leaders can try and cling to power by attempting to change the constitution to permit a third term. The constitution can be repealed to prolong their tenure through extra-constitutional means. Or they can create conditions that are unfavourable for holding elections and duly take on the role as crisis manager. Some leaders on the continent have almost de- ployed all of these strategies but most opted for the constitutional amendment route

Volume 11 number 2 • June 2019 107 through the “third-term project”. Leaders in Uganda, Burundi, Rwanda, and Senegal have tweaked their constitutions to stay in power. Such power-mongers disregard the fundamental tenets of governance and use their countries’ constitutions to protect personal interests at the expense of the citizenry.

Abusive constitutionalism is a phenomenon used by presidents and their supporters to exploit the constitution by engineering amendments so that they can exceed the constitutionally established checks. In his article Abusive Constitutionalism, Landau (2013:191) views abusive constitutionalism “as the use of the mechanisms of constitutional change – constitutional amendment and constitutional replacement – to undermine democracy”. Powerful incumbent presidents and parties can engineer constitutional change that makes it difficult to remove them from power and can undermine the power of institutions such as courts that oversee democratic processes. The resulting constitutions still look democratic from a distance and contain many elements that are no different than those found in liberal democratic constitutions. But, upon closer inspection, they have been reworked to undermine the democratic order. Landau (2013:196) defines “abusive constitutionalism” as the use of mechanisms of constitutional change to make a state less democratic than it was before.

Jorge González-Jácome (2017:447) criticises some of the notions associated with “abusive” and “authoritarian” constitutionalism, by arguing that such terms assume that constitutions are merely higher law. He argues that this notion loses sight of the fact that constitutions are also political documents that gain meaning based on domestic and global power struggles. In light of this one-sided notion of constitutionalism, these terms generally imply that constitutions fail in places where amendment mechanisms are simply instruments to ensure that would-be autocrats remain in power (González-Jácome 2017:447). However, Tushnet (2015:3) provides a double-edged meaning of constitutionalism. He suggests that legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomise the subject. Contemporary Western liberal constitutionalism has core commitments to human rights and self-governance implemented via varying institutional devices (Tushnet 2015:3). Conversely, authoritari- anism is characterised by unconstrained power-holders and rejects human rights entirely (Tushnet 2015:3).

According to Landau (2013:193), the threshold for amendments is often fairly low, allowing incumbents to round up sufficient support for changes with relative ease. Even where amendment thresholds are set higher, incumbents can often reach requisite legislative supermajorities (Landau 2013:193). In Africa, some leaders have respected the statutory limitations of their constitutions. Likewise, legislatures have denied leaders a third term in

108 African Journal of Public Affairs office. However, there is a trend towards abusive constitutionalism, where leaders have remained in power beyond constitutionally provided limits.

TRENDS CONCERNING ABUSIVE CONSTITUTIONALISM

The 1990s marked the critical development for constitutionalism, the rule of law and democracy in Africa (Fombad 2007:3). During this period most countries drafted new “pro-people” constitutions. Unfortunately, the gains that had been made are under serious threat due to abusive constitutionalism (Landau 2013:196). Fombad (2007:4) notes that most constitutional changes had failed to adequately draw inspiration from lessons of Africa’s dark authoritarian regimes. Subsequently, most African countries struggle to uphold democracy and constitutionalism. Leaders change constitutions to ensure longer tenures despite failing to improve public services or respect citizens’ dignity. The continent has mostly moved beyond dictatorships and violent coups (Levitsky and Ziblatt 2017). However, the new threat is not at the hands of generals, but from leaders who subvert the process that brought them into power. Political leaders use constitutional amendments which appear legitimate on the surface to influence their stay in power. With this process, the state’s administrative systems and functionality are captured.

Certain African leaders have mastered the art of abusive constitutionalism, and this has also involved recruiting legislative bodies as chief actors in constitutional coups. In a functional democracy, legislative bodies are expected to represent and speak on behalf of the country’s citizens in matters such as constitutional amendments. However, under abusive constitutionalism, political leaders and their supporters focus on their own agendas and ignore calls to justify their actions. Political leaders who want to overstay their welcome recruit parliamentarians into their camps so that the country’s constitution can be amended with little effort. This is relatively widespread, since the ruling governments hold a controlling majority of elected members of the legislature. In abusive constitutionalism, even the opposition’s elected members become “commodities for commerce”, as they are courted to effect constitutional amendments. Every constitution contains amendment procedures, such as holding a referendum. In Ghana, for example, constitutional provisions concerning high offices, such as the president and vice-president, are subject to a referendum (Posner and Young 2007:130).

In a number of countries, courts have been used to legitimise changes. This rings true in countries where legislatures have passed constitutional amendments on

Volume 11 number 2 • June 2019 109 recommendation of the executive arm of government. In Senegal, the executive failed to ratify the constitutional review committee’s progressive recommendations, such as allowing independent candidates to run for office in all elections (from presidential to local level) (http://www.loc.gov/law/foreign-news/article/liberia-supreme-court-ratifies- a-constitutional-amendment/). The news further reported that on 27 September 2011, the Liberian Supreme Court ratified a constitutional amendment proposal after the country’s referendum that took place on 23 August 2011. In this instance, Section 83(b) of the 1986 Constitution of Liberia was amended, to require that elections to public office be won by a simple majority instead of by an absolute majority, as had previously been the case. The Liberian Supreme Court’s action was in response to a petition by the country’s ruling political party (the Unity Party), which was challenging the referendum’s results. After the referendum, the country’s National Election Commission (NEC) announced that all four proposals had failed to garner a two-thirds support of registered voters, which was the minimum level of support needed to amend a constitutional provision. In response, the ruling government had to use the Supreme Court to implement their wish.

On 19 November 2013, the House of Representatives of the Unicameral Parliament of Sierra Leone passed a controversial amendment to the country’s Constitution (http://www.loc.gov/law/foreign-news/jurisdiction/sierra-leone/). Article 79(1) of the Constitution of Sierra Leone, 1991 required that candidates be “qualified to be ap- pointed Judges of the Superior Court of Judicature (with at least ten years’ experience as a lawyer) or be elected from a pool of qualified members of Parliament (MPs)” (Constitution of Sierra Leone, 1991). The new requirement has a more lenient approach to legislative experience, stating that the candidate must be a MP with at least five years’ parliamentary experience, or a former MP who has served two five-year terms. Changes to the criteria for serving as speaker of the house raised several questions. This related to passing legislation without following the constitutional review process and popular consultation; and the possible manipulation of the Parliament’s composition to further a certain political agenda.

Uganda’s constitutional and political trajectory offers yet another example of abusive constitutionalism. The country’s independence from its British colonial masters in 1962 was followed by a tormented constitutional and political history. Asiimwe (2014:25) states that when the National Resistance Movement (NRM) assumed power in 1986, it was seen as a move in the right direction. The NRM’s Ten-point Programme prom- ised much-needed change and stability, which instilled a sense of relief and confidence among citizens. Ugandans believed that this would be the end of state-orchestrated murders, a culture of political violence, torture, arbitrary arrests, and repressive modus

110 African Journal of Public Affairs operandi. Above all, they rejoiced at the opportunity to vote freely and elect their leadership. It was considered the dawn of a new era (Asiimwe 2014:25).

In 1995, the opportunity arose to draft a new constitution for Uganda. The Constitutional Review Commission served as basis to review the country’s political and constitutional challenges after independence. This provided an important preamble for the new constitution. Bazaara (2001:41–45) states that there was a need to outline specific parameters and mechanisms for government operations. However, the initial optimism of a democratic constitution has faded as constitutional amendments have undermined the effective functioning of administrative systems. Since its promulgation, the Constitution of Uganda, 1995 (also referred to as the 1995 Constitution) has been subjected to the following key amendments:

The Constitution Amendment Act 13 of 2000

Article 29:1 (e) of the 1995 Constitution of Uganda provided that every person has the right to “freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organiza- tions”. This right came under attack by the collective efforts of the 2000 constitutional amendments. The ruling NRM party and the Ugandan government blamed specific political parties for causing polarisation along ethnic and religious lines. It was argued that this had exacerbated political turbulence in Uganda. Amendments aimed to place a gag order on political parties and establish a “non-party” system to create a culture of national unity. Due to internal and external pressure, the ruling party sought to subject the right of association to a referendum. The legitimacy of the proposed referendum was questioned, as freedom of association was constitutional and inalienable (Asiimwe 2014:25).

Government argued that it was necessary to consult “the people”, who alone had the pre- rogative of deciding how they were to be governed. Through the Constitutional Petition No.3 of 1999, the Constitutional Court nullified the referendum (Constitutional Petition No.3 of 1999 in Asiimwe 2014). This nullification prompted Parliament to pass the first amendment to the 1995 Constitution, the Constitution Amendment Act 13 of 2000. The amendment aimed to legitimise voting on the right to association. This amendment was also contested in court through the Constitutional Petition No.7 of 2000 (Asiimwe 2014). Petitioners sought a declaration that the constitutional amendment was unconstitutional. Technicalities were pointed out. For instance, the amendment was passed by Parliament without the required quorum. However, in a majority judgment of three Justices to two Justices (3:2), the Constitutional Court dismissed the petition (Constitutional Petition

Volume 11 number 2 • June 2019 111 No.7 of 2000 in Asiimwe 2014). It was maintained that the Constitution Amendment Act 13 of 2000 had properly amended Articles 88, 89, 90, 97 and 257 of the 1995 Constitution. In 2002, there was an appeal against the Constitutional Court judgment in the Supreme Court. On 29 January 2004 the Supreme Court declared the Constitution Amendment Act 13 of 2000 unconstitutional and it was accordingly nullified (Supreme Court Appeal Judgment in Constitutional Appeal No. 1/2002 in Asiimwe 2014).

This first Act amending the Constitution repealed and replaced Article 88; amended Article 89; repealed and replaced Article 90; amended Article 97 and added Article 257A. According to the Preamble to the Act, Article 88 of the 1995 Constitution was repealed and replaced to provide for the quorum of Parliament; Article 89 was amended to stipulate the number of votes cast that would be regarded as a majority in any matter. Article 90 of the Constitution was repealed and replaced to recognise the House committee’s role in the passing of Bills and to make provision for the functioning of parliamentary committees (Constitution of Uganda 1995, as amended by the Constitution Amendment Act 13 of 2000). Article 97 of the Constitution was amended to ensure that parliamentary proceedings could only take place within the parameters of Parliament, unless leave was granted (Constitution Amendment Act 13 of 2000). Article 257A was added to ratify certain former procedural Acts. Courts noted that the addition of Article 257A (Article 258 in the 2000 revised edition) was inconsistent with Article 88 of the Constitution that provides for the quorum of Parliament when voting on any question. Articles 88 and 90 that were introduced by this Amendment Act were later replaced by the Constitution Amendment Act 11 of 2005. These amendments were the first clear onslaught on democratic governance, as subsequent Articles provided an avenue for further constitutional amendments.

The Constitution Amendment Act 11 of 2005

Asiimwe (2014:26) reports that: “In 2005, the NRM Government fundamentally amended the Constitution to satisfy the narrow power interests of the ruling elite, yet the popu- lation did not defend “their” Constitution”. This second amendment to the Constitution followed the 2001 presidential election campaigns (Asiimwe 2014:26). At that time, government established the Constitutional Review Commission, which was chaired by Prof Frederick Ssempebwa. The Commission completed its work in December 2003 and submitted a report on its findings and recommendations (Asiimwe 2014:26). A subsequent government White Paper on legal reforms was prepared in September 2004, which was considered by the Legal and Parliamentary Affairs Committee of the 7th Parliament. After the Committee submitted its report on 20 December 2004, Parliament passed the Constitution Amendments of 2005 and the Constitution Amendment Act

112 African Journal of Public Affairs 11 of 2005. As a result, 48 amendments were made to the 1995 Uganda Constitution (Asiimwe 2014:26).

The objectives of this 2005 Act were to distinguish Kampala as the capital city of Uganda under Article 5 and to provide for its administration and for the delineation of its boundaries. The Act also provided for Swahili as Uganda’s second official national language under Article 6 (Constitution Amendment Act 11 of 2005). The insertion of Article 82A under Chapter Six provided for the return of political parties and for the leader of the opposition in Parliament under a multiparty political system. It also created the Offices of the Prime Minister under the newly included Article 108A and a deputy attorney-general under Article 119A, among others (Constitution Amendment Act 11 of 2005). This Act also removed the tenure limits of the Office of the President. It amended Article 105 of the Constitution by repealing Clause 2, which provided for only two presidential terms of five years each. Subsequently, a person may be elected to hold office as President for more than two terms (Constitution Amendment Act 11 of 2005). This Act also amended Article 163 to provide for the independence of the auditor-general and the procedure for their removal. It provided for the creation of special courts to handle offences relating to corruption and established and prescribed the functions of a Leadership Code Tribunal, among others. Other amendments were provision for the control of minerals and petro- leum and for holding referendums in general (Constitution Amendment Act 11 of 2005). After passing of this Act, the second referendum on political parties was held in 2005 (Asiimwe 2014:26).

The Constitution Amendment Act 21 of 2005

Also, in 2005, a new amendment was made to the Constitution. Under this Act, eight amendments were made to the 1995 Constitution (Constitution Amendment Act 21 of 2005). These were to establish Kampala as the capital city of Uganda, to provide for the new districts, and that the local government system be based on a district as a unit of administration, among others (Constitution Amendment Act 21 of 2005). The other objectives of this Act were to replace Article 178 of the 1995 Constitution to provide for the establishment of regional governments as the highest political authority in the region (with political, legislative, executive, administrative and cultural functions) and to provide for the composition and functions of the regional governments (Constitution Amendment Act 21 of 2005). The Act also saw the inclusion of Article 178A to provide for grants for districts that do not form regional governments. It replaced the Fifth Schedule to provide for details relating to regional governments and amended Article 189 to recognise the functions and services of regional governments (Constitution Amendment Act 21 of 2005).

Volume 11 number 2 • June 2019 113 The Constitution Amendment Act 12 of 2015

This Act amended seven Articles of the 1995 Constitution. Article 60 was amended by inserting Clause 8 to prescribe a procedure for the removal of Electoral Commission (EC) members. Under Article 81(2), EC members are required to hold a by-election within 60 days after announcing a vacancy of an MP seat and other positions. (Constitution Amendment Act 12 of 2015). The 2015 Act also provides for the court registrar to declare the MP seat as vacant and to transfer the judgment to the parliamentary clerk within 10 days after the declaration, under Article 81(2a). It also permits floor-crossing by MPs within the 12-month period before the end of their parliamentary term. Clause (2a) under Article 83 was inserted to this effect (Constitution Amendment Act 12 of 2015). It also provided for Article 148A to allow the Judicial Service Commission to appoint certain staff to the Judiciary (Constitution Amendment Act 12 of 2015).

The Constitution Amendment Bill, 2017

With this Bill, which was tabled in June 2017 by the justice minister, the government pushed to amend Article 26 of the Constitution “to resolve the current problem of delayed implementation of Government infrastructure and investment projects due to disputes arising out of the compulsory land acquisition process” (Constitution Amendment Bill, 2017). The Bill sought to enable the government or a local government to deposit compensation with court for any property that the government earmarks for compulsory acquisition (Constitution Amendment Bill, 2017). It also sought to empower the government “to take possession of the declared property upon depositing the compensation with the court, pending determination by the court of the disputed compensation awarded to the property owner or person having an interest in or right over the property” (Constitution Amendment Bill, 2017). The Bill further aimed to empower the property owner or manager to access the awarded compensation at any time during the dispute resolution process (Constitution Amendment Bill, 2017). While this Bill was later withdrawn by government, the Bill could possibly be reconsidered in the near future. Considering the current dynam- ics of the ruling party numbers, it will be passed by Parliament.

The Constitution Amendment Act 2 of 2017

The Act in question amended another four Articles of the 1996 Constitution. Some of the sections of this Act are currently being challenged in the Supreme Court. Besides the amendment of Article 102(b), the Act removed the 75-year age cap of those contest- ing for district chairpersons’ seats, which is provided for under Article 183 (2)(b) of the Constitution (Constitution Amendment Act 2 of 2017). The Act amended Article 61(2)

114 African Journal of Public Affairs of the Constitution to provide that the EC conduct a general election within the first 30 days of the last 120 days of the president’s term of office. Currently, the Commission is required to conduct a general election within the first 30 days of the last 90 days before the expiry of the term of office of the president. Other amendments were made to the Act to the 1995 Constitution.

The above examples indicate that Uganda has not learnt from its history. On this subject, Asiimwe (2014:26) states that ever since the country’s independence and subsequent 1966 Constitution, the executive had exercised arbitrary power through repression and extermination. Accordingly, the ultimate motif of the new Constitution was the people’s desire to restrain executive power. The new Constitution sought to entrench a strong Bill of Rights, mechanisms to promote democracy and horizontal institutions to ensure accountable governance. Furthermore, it reflected the need for popular representation and aspirations (Asiimwe 2014:26).

Successive changes to Uganda’s Constitution allowed President Yoweri Museveni to maintain his seat of power well beyond the two-term norm of most democracies. The same trend is seen in Rwanda. Rwanda’s manipulation of collective memory and history, however, is on a different scale and as Kelly (2017:132) puts it has seen Rwanda benefit from the third term project like other African countries. As the end of Paul Kagame’s 14- year term as the Rwandan President drew closer, a referendum was held on 18 December 2015 which saw amendments to the country’s Constitution. This allowed Kagame to run for a third term in office in 2017. A petition calling for Article 101 of the Constitution (which imposed presidential term limits) to be amended (Rwanda’s Constitution of 2003 with Amendments Internet Source 2015) had gained over 3.7 million signatures. This is equivalent to over 60% of registered voters in Rwanda. In addition, there was a call to shorten the presidential term from seven to five years. Although the latter change would not come into effect until 2024, these changes were approved by around 98% of voters (Kelly 2017:132). In November 2015, the constitutional amendments were approved by the Senate. As a result of these amendments, President Kagame remained in power and is likely to retain his seat until 2034.

Another example of a “constitutional coup” in African countries includes the one in the Republic of Congo. In 2015, President Denis Sassou Nguesso claimed that the people wanted him to extend his 32-year stay in power. He subsequently announced a referendum to change the country’s Constitution to allow him to contest the national elections. This was met with mass protest. However, in 2016 Sassou Nguesso won at the polls amid tight security measures and a communications black-out (https://www.news24.com/ Africa/News/africa-faces-a-new-threat-to-democracy-the-constitutional-coup-20170209).

Volume 11 number 2 • June 2019 115 The 2002 Constitution provided for a strong executive presidency without a prime minister, which weakened the Legislature, the duration of a presidential term was increased to seven years, with a limit of two terms. An age limit of 70 years was established for presidential candidates (https://www.news24.com/Africa/News/africa-faces-a-new-threat- to-democracy-the-constitutional-coup-20170209). This was most likely to exclude Sassou Nguesso’s most important political opponents, who had either reached that age or were nearing it. Parties opposed to Sassou Nguesso criticised the new Constitution and called for the people to boycott the 2002 referendum. Their efforts were unsuccessful. Under the 2002 Constitution, Sassou Nguesso was elected as president in 2002 and re-elected in 2009.

When the end of the Congolese President’s second term approached, and he had passed the age limit of 70 years, the ruling Congolese Labour Party (PCT) promoted public discussion on replacing the 2002 Constitution. (https://www.news24.com/Africa/ News/africa-faces-a-new-threat-to-democracy-the-constitutional-coup-20170209). The PCT argued that a new constitution would provide for better governance. Sassou Nguesso remained mum on whether or not he wanted to run for re-election. Constitutional changes were made that would allow a third presidential term, eliminate the age limit of 70 years for candidates, and reduce the duration of presidential terms from seven years to five years. While eliminating the maximum age limit, it would reduce the minimum age requirement for candidates from 40 to 30 years. It would also establish the post of prime minister as head of government, rather than the president. The amendments would allow Sassou Nguesso to run for re-election (https://www.news24.com/Africa/ News/africa-faces-a-new-threat-to-democracy-the-constitutional-coup-20170209).

In Burundi, President Pierre Nkurunziza also made a third-term project move in 2015, which led to political instability and a failed military coup. During the same year, he emerged victorious in an election marred by violence and intimidation. Recent political developments in the country reveal that voters back constitutional amendments, which could potentially see President Pierre Nkurunziza remaining in office until 2034. During a referendum on 17 May 2018, 73% of the Burundian citizens voted “Yes” to change the Constitution. This included increasing the five-year presidential term to seven years (https://www.news24.com/Africa/News/africa-faces-a-new-threat-to-democracy-the- constitutional-coup-20170209). The new Constitution scrapped one of the country’s two constitutionally enshrined vice-presidents and transfers power from the government to the president. During December 2017, the president threatened people not to campaign against the proposed changes. Like most other African countries, the official campaign window opened two weeks before the referendum. (https://www.news24.com/Africa/ News/africa-faces-a-new-threat-to-democracy-the-constitutional-coup-20170209). Prior to

116 African Journal of Public Affairs the referendum, the British Broadcasting Corporation (BBC) and Voice of America, two important international media outlets, had been banned from the country for six months. Another international media entity, Radio France Internationale (RFI), had also received a warning about its coverage. In East Africa, only Kenya and Tanzania have preserved the sanctity of their constitutions. Other regions in Africa have witnessed both abusive constitutionalism and the preservation of their constitutions.

During the first decade after independence in 1960, the West African country of Benin had no fewer than 12 heads of state. Each head of state was overthrown in a coup d’état. However, from 1990 to 2006, only two presidents alternated as presidents in national elections. Moreover, both refrained from running for terms beyond those allowed by constitutional limits. Benin thus presents a unique example of a country where leaders have left power at the dictates of the Constitution (Posner and Young 2007:128). In their sample of 227 leaders from 46 sub-Saharan countries, Posner and Young, (2007:128) documented trends on how African leaders left as heads of state between independence and the end of 2005. The authors coded each leader’s mode of exit from office into one of five categories, namely coup or violent overthrow (including civil war), assassination, natural death, voluntary resignation and losing an election. Their findings indicated that, between 2000 and 2005, 19%. of leaders left power through irregular means (Posner and Young 2007:128).

Contrary to constitutional abuses in most African countries, South Africa has made constitutional progress. In 1996, the country promulgated its new Constitution. While the Constitution of South Africa, 1996 has been amended 17 times, it has not been used by political leaders to extend their stay in power. In 2001, the sixth amendment of the Constitution of South Africa, 1996 saw a number of changes. Most notably, the title of chief justice was given to the head of the Constitutional Court, instead of the head of the Supreme Court of Appeal. On 1 November 2001, amendments were ratified by the National Assembly, with the requisite two-thirds majority (279 votes in favour). After being signed by President Thabo Mbeki on 20 November 2001, it was published and came into effect the following day (Constitution of South Africa, 1996, as amended in Auriacombe 2015). The amendment renamed the post of chief justice to president of the Supreme Court of Appeal; the post of president of the Constitutional Court was changed to chief justice of South Africa; and the deputy heads of each court were also renamed similarly. These changes were intended to clarify the structure of the South African judiciary (Auriacombe 2015).

Other changes made by the amendment of the South African Constitution were to allow (Auriacombe 2015):

Volume 11 number 2 • June 2019 117 ●● the term of office of a Constitutional Court judge – usually 12 years or until the judge reaches the age of 70, whichever is shorter – to be extended by an Act of Parliament; ●● the President to appoint two deputy ministers from outside the National Assembly, where previously deputy ministers had to be members of the Assembly; and ●● municipal councils to bind the authority of future successor councils, as security for a loan.

In 2017 the Zimbabwean Parliament amended the country’s Constitution to empower the president to handpick the nation’s top judges. Plans to give former President Robert Mugabe such power started when the then-chief justice left the bench after reaching the age of retirement. Mugabe’s ruling ZANU-PF party immediately petitioned the courts to halt public interviews to appoint the next top judge until the Constitution had been changed. The application failed, but ZANU-PF introduced a Bill proposing the amendment to ensure that the president selects a chief justice, along with the deputy and the head of the high court (known in Zimbabwe as the judge president) (https://www.voanews.com/a/ zimbabwe-parliament-amends-constitution-president-handpick-top-judges/3958638.html).

The legislature is expected to be the vanguard of democracy. However, the above cases show that this has often been put to the test. Countries with strong independent legislative branches have protected themselves from abusive constitutionalism. Countries with weak and non-independent legislatures have amended their constitutional man- dates to avoid excessive power. The constitutional reviews in Nigeria and Benin illustrate the important role of the legislature. The Parliament of Benin’s refusal to pass a Bill that included only 27 of the 90 constitutional amendments proposed by two review commissions demonstrates the necessary checks that a legislature ought to apply (Thompson 2014:1). The 27 provisions that the government selected to be included in the Draft Bill would have further consolidated the executive’s power. In Nigeria, a Senate review committee threatened to omit certain provisions proposed by the House of Representatives’ committee, such as the independence of local government and including education and housing as constitutional rights. These two examples demonstrate how parliamentarians should not view the constitutional review process as an avenue to further entrench certain policies establishing a political divide (Ibid).

STRATEGIES FOR ABUSIVE CONSTITUTIONALISM

What key strategies have been used to engage in abusive constitutionalism within Africa? Political leaders, through their ruling political parties, as well as other supporters who

118 African Journal of Public Affairs have engaged in abusive constitutionalism have applied certain strategies. A literature review on abusive constitutionalism points to specific strategies. The section below dis- cusses the findings and observations of the authors in terms of the 10 most commonly applied strategies to subvert democracy while appearing to be democratic.

Constitutional amendments

Overall, abusive constitutionalism is achieved by amending existing constitutions to help achieve specific political motives – particularly the term in office and age limits. Constitutions are substantially reworked to undermine the democratic order. This strategy involves engineering constitutional changes that makes it difficult to be removed from power. Leaders find ways to change constitutional provisions by leveraging their power political dominance in the legislature or by bribing supporters. They manipulate the election process, even where a referendum is required. The resulting constitutional amendments appear democratic on the surface but are, in fact, the antithesis of true democracy.

Requirements for constitutional thresholds

Constitutions are living documents. As such, they are subject to incremental amendments. Some Articles require special amendment thresholds, and in most countries, even ordinary Articles require a two-thirds majority vote by the legislature. Leaders who apply abusive democracy have reduced original constitutional thresholders to suit their own agendas. For example, the constitutional requirements of a two-thirds majority in most constitutions is reduced to a simple majority. Since most of these leaders control the legislative branch of government, amendments are easy to implement. Courts helplessly look on, as they have equally been captured.

Control of governmental branches

With this strategy, ruling governments use overt and covert means to control the branches of government and horizontal accountability mechanisms that keep political actors in check. Key institutions like the courts, which are expected to resolve any disputes, the Offices of the Attorney Generals, Ombudsmen, the Directorates of Criminal Investigations, the Directorates of Public Prosecution, and electoral commission systems, among others, are earmarked for state capture. The legislature is also captured on different levels. During elections, there is a strong focus on gaining control of legislative processes. When this is not achieved outright, the next strategy is to form coalitions. As a result, these institutions actively work for, and on behalf of, their political “patrons”.

Volume 11 number 2 • June 2019 119 Control of the media

The media plays a fundamental role in educating the masses and reporting on government misconduct. Conversely, a controlled media industry is used as “his master’s voice” – a means to disseminate specific information to the public. By gagging the media, the rules of politics are rewritten to disadvantage rivals. Licence requirements are strengthened, while government regulatory agencies impose strong punishment for non- compliance. For example, media outlets are threatened with closure should they follow the independent line of reporting.

Abuse of state resources

With this direct strategy, incumbents use state resources to run party systems and to buy off opponents. Campaigns to amend the constitution are directly implemented coun- trywide using state machinery and functionaries. Moreover, administrative structures are used to prepare and implement amendments. The massive campaigns in support of constitutional amendments are done via budgetary allocations to state departments. As incumbents use state resources to bankroll party activities, it becomes difficult to distinguish between state and party functions.

Satisfying international actors

To avoid sanctions and other consequences, leaders and their supporters hold regular “democratic” elections. Pre-election processes appear normal and democratic. However, election tallying is characterised by “mathematical algorisms” to announce winners. Election observers are sometimes influenced to confirm that the elections are free and fair, especially where former presidents of the same club oversee observer missions.

Hybridisation

This approach is not authoritarian in the true sense of the word. A hybrid regime holds regular elections, but opposition parties are at a great disadvantage. Disunity is created by applying several approaches to control political power. Thus, the playing field is not level.

Diverting accountability systems

Government institutions can become political weapons in cases where the ruling party suspects defeat in elections. With this approach, strong candidates are disqualified from the presidential race using already-captured institutional election systems.

120 African Journal of Public Affairs Using security forces

Often, incumbent leaders use security forces as a last resort to retain their seat of power. With this form of abusive constitutionalism, presidents as commanders-in-chief of the Armed Forces ensure regular promotions and issue other forms of bribery. This is to manipulate security forces into supporting their agendas and to spy on opposition forces and other actors.

Diverting international constitutional order

Current international democracy-protecting mechanisms were drafted and implemented with military coups in mind. Misguidedly so, it is believed that this is the only approach countries could use to subvert democracy. Both international democracy-protecting systems and comparative law have become weak and ineffective, as they were not de- signed to counter modern constitutional abuses. As such, they are easily subverted.

PUBLIC ADMINISTRATION UNDER ATTACK

Basheka (2015:466) reports that Africa has suffered a rather tormented history marred with colonialism, conquests, neo-colonialism, global capitalism and Western organisa- tional management/leadership practices. In the Trajectory of Public Administration in Africa, Chanie (2013) questions why African governance structures are still unimpressive despite 50 years of independence and Western monetary support. Where governments operate under abusive constitutionalism, dominant political actors and forces tend to control government branches and horizontal accountability mechanisms (Landau 2013:201). Institutions like courts, ombudsmen, the Offices of the Attorney Generals and electoral commissions tend to be controlled by incumbents. Rather than serving as independent democratic vanguards, these institutions are actively working on behalf of their political patrons. Mwanawina and Lekonyane, (2015:410) argue that democracy can only be protected if one adheres to the rule of law. For democracy to thrive, government institutions need to be respected and effective.

Abusive constitutionalism has short- and long-term consequences on efficient public administration. The dangers of abusive constitutionalism should be understood within the context of the public administration’s role and what public servants do to ensure a well-functioning government. In the changing context within which governments operate, there are two contentious debates. First, how to facilitate efficient and effective public services and second, what stands in the way of governments having functional

Volume 11 number 2 • June 2019 121 public service systems (Basheka 2014:653). These questions arise because governments deliver services through core public service values, as opposed to “managerial values” (Basheka 2014:653). Undeniably, public servants are the backbone and heartbeat of the public service (Mle 2012:29).

A constitution outlines how power is organised within a state, while its set of laws is beyond the reproach of those who exercise those powers (Tandon 1994:225). The aforementioned is central to examining how abusive constitutionalism affects public administration. A regime with no accountability and a disregard for human rights is less democratic than one with higher levels of vertical and horizontal accountability and a focus on protecting citizens’ rights. Moreover, an absence of accountability is associated with other ills like increased corruption (Landau 2013:201). Tushnet (2015:8) suggests that, “In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions”. In mere rule-of-law constitutionalism, “the decision-maker conforms to some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties” (Tushnet 2015:8).

Legitimate governments depend on institutionally strong, efficient, effective systems, an- chored in publicly determined, predictable and increasingly rational rules of behaviour. “In such a system, the public service becomes a central pillar of the government, as it regulates, administers, executes, mediates, invests and delivers the construction, operations, maintenance and servicing of service delivery infrastructure, and ensures that the public service machinery is oriented to diligently serve the citizens” (Basheka 2014:655). How do the above schemes impact on a country’s ability to establish robust administrative systems? Overall, countries that make constitutional amendments without political influence lead to strong systems. Kenya and South Africa serve as examples. Rwanda has strengthened its institutions despite the incumbent. Countries like Uganda have seen a systematic ero- sion of administrative stability and decisions are based on the ruling government’s support. Public administrators who are expected to be unbiased tend to take the ruling party’s side.

Fakir (2007:1) highlights the public service’s role in the functioning of a democratic developmental state. He posits that the public service not only focuses on service delivery, but is also vital to socio-economic development by providing the essential services and basic infrastructure, especially in poor communities. The public service not only focuses on the hard issues, but also outcomes-based soft issues. In doing so, it has to deliver efficient, effective services that maintain the dignity of citizens. However, the public

122 African Journal of Public Affairs service’s performance, from education and policing, to health care and recycling, is a matter of concern in many countries. Issues relating to efficiency, cost and effectiveness have moved to the forefront of political debate. As Mle (2012:29) states: “Public servants are the backbone and heartbeat of the public service, but if this heartbeat is unethical and unprofessional, there will be no blood circulation and the public service will die”.

Incumbents capitalise on surges in their popularity to implement changes that impact the democratic order. They also manipulate electoral law and other mechanisms to inflate their support (Landau 2013:214). In amending its Constitution, Uganda has applied all 10 characteristics of abusive constitutionalism. The country has witnessed lowered thresholds, which has continuously allowed leaders to make constitutional amendments with ease. Uganda has also mastered the art of diverting international constitutional order. Existing international democracy-protecting systems and comparative law are easily subverted, as they have become weak and ineffective. Moreover, dominant political forces have subverted horizontal accountability mechanisms and now control key government institutions and offices. As appointments reflect the ruling party’s interests, institutions no longer work for, and on behalf of, the people.

Abusive constitutionalism breeds dishonest and corrupt public servants. Gildenhuys (1991:41) rightly notes that this leads to the poor and dishonest management of public affairs and corruption (immoral acts), which are among the most serious manifestations of unethical conduct. Moreover, public service codes, which provide the minimum behavioural standards for public servants, would not be implemented. Abusive constitutionalism also breeds self-centred behaviour. Larmour (1990:64) argues that when people are self-interested and opportunistic, public equipment, office supplies and other stock may be used for personal gain. Moreover, constitutional changes can be used to dismantle institutions serving as strongholds for the opposition. Undeniably, the weaken- ing or removal of opposition figures is instrumental to creating competitive authoritarian regimes. The above examples show that constitutional replacements can be an efficient way for political actors to strengthen their power and to overcome political opposition. Thus, one can argue that constitutional replacement is likely to be more dangerous than constitutional amendments, as it gives dominant actors a chance to dismantle power bases of opposition groups (Landau 2013:213).

CONCLUSION

This article examined the trends of abusive constitutionalism in Africa and provided examples of countries where constitutions have been respected. Abusive

Volume 11 number 2 • June 2019 123 constitutionalism is a new form of leadership change effected by amending a country’s constitution. This mode has replaced the military coup phenomenon. The trend towards abusive constitutionalism undermines the creation of a functional and efficient public administrative system. In countries where constitutions have been respected, there is confidence in administrative systems and institutions. On the other hand, countries that have engaged in abusive constitutionalism have killed the separation of powers doctrine, where the three branches of government are expected to work independently. However, all is not lost. In some countries, citizens and democratic forces have stood firm and fought abusive constitutionalism trends using the very same weapons – constitutional referendums.

In 2015, citizens of the Central African Republic backed a constitutional referendum aimed at ending nearly three years of political instability. The country’s amended Constitution limited the power of the president and increased that of the Parliament. A Special Criminal Court was subsequently established to try war criminals and crimes against humanity that had been committed in the country since 2003. Senegal’s suc- cessful constitutional referendum reduced the presidential term from seven to five years. Other measures reaffirmed the role of opposition parties and local officials. In other African countries such as Mali and Benin, efforts to negotiate new constitutions were un- dertaken. In Mali, the revision aimed to incorporate provisions of the 2015 Algiers Peace Agreement signed between the government and former rebel groups. Benin’s newly elected president, Patrice Talon, suggested that the country’s Constitution be revised to limit the presidential term to one. However, in October 2011, the Constitutional Court of Benin ruled that presidential term limits were unchangeable. These referendums play a positive role in democratic consolidation. They also play a key role in good governance, long-term stability, the rule of law and legitimate democracy. In countries where abusive constitutionalism has flourished, citizens should use their power to demand a referendum and re-establish constitutional order.

NOTE

* Prof Benon Basheka is a Visiting Professor at the University of Johannesburg in the School of Public Management, Governance and Public Policy.

REFERENCES

Asiimwe, G.B. 2014. Of Fundamental Change and No Change: Pitfalls of Constitutionalism and Political Transformation in Uganda, 1995-2005. Africa Development, XXXIX(2):21–46.

124 African Journal of Public Affairs Auriacombe, C.J. 2015. Statutory, Regulatory and Institutional Framework for Local Government. HCMG. UJ Internal Handbook. Johannesburg: University of Johannesburg. Basheka, B.C. 2014. What constrains a transformed public service in Uganda? Journal of Public Administration, 49(2.1):653–670. Basheka, B.C. 2015. Indigenous Africa’s Governance Architecture: A Need for African Public Administration Theory? Journal of Public Administration, 50(3):466-484. Bazaara, N. 2001. Mixed Results in Uganda’s Constitutional Development: An Assessment. In Kituo Cha Katiba. 2001. Constitutionalism in East Africa: Progress, Challenges and Prospects in 1999. Kampala: Fountain. Casper, G. 1987. Constitutionalism. University of Chicago Law Occasional Paper. No. 22. Available at: https:// chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1007&context=occasional_papers (Accessed on 19 February 2019). Chanie, P. 2013. The trajectory of Public Administration in Africa: Background. In Chanie, P. and Mihyo, P.B. (Eds.) Thirty Years of Public Sector Reforms in Africa: Selected Country Experiences. Kampala: Fountain Publishers. Constitution Amendment Act 13 of 2000. Available at: www.constitutionnet.org/country/constitutional- history-uganda (Accessed on 10 February 2019). Constitution Amendment Act 11 of 2005. Available at: www.constitutionnet.org/country/constitutional- history-uganda (Accessed on 2 February 2019). Constitution Amendment Act 12 of 2015. Available at: www.constitutionnet.org/country/constitutional-history- uganda (Accessed on 12 February 2019). Constitution Amendment Act 2 of 2017. Available at: www.constitutionnet.org/country/constitutional-history- uganda (Accessed on 12 February 2019). Constitution Amendment Bill, 2017. Available at: www.constitutionnet.org/country/constitutional-history- uganda (Accessed on 12 February 2019). Constitution of Burundi, 2005. Available at: https://www.jstor.org/stable/1166783 (Accessed on 12 February 2019). Constitution of Sierra Leone, 1991. Available at: www.statehouse-sl.org/constitution/ (Accessed on 12 February 2019). Constitution of the Republic of Uganda, 1995. Available at: www.constitutionnet.org/country/constitutional- history-uganda (Accessed on 12 February 2019). Constitution of the People’s Republic of Benin, 1990. Available at: https://ihl-databases.icrc.org/ (Accessed on 12 February 2019). Constitution of the Republic of the Congo, 2005. Available at: https://www.constitutionnet.org/ (Accessed on 12 February 2019). Constitution of the Republic of the Congo, 2015. Available at: https://www.constituteproject.org/ (Accessed on 12 February 2019). Constitution Petition 3 of 2016. Available at: kenyalaw.org/caselaw/cases/view/12742/. (Accessed on 12 February 2019). Constitutional Rights Foundation. 2004. Available at: http://www.crf-usa.org/bill-of-rights-in-action/bria-20-2- c-hobbes-locke-montesquieu-and-rousseau-on-government.html (Accessed on 10 February 2019).

Volume 11 number 2 • June 2019 125 Dulani, B. African Publics Strongly Support Term Limits, Resist Leaders’ Efforts to Extend their Tenure. Afrobarometer Dispatch No. 30, 25 May 2015. P. 2. Available at: http://afrobarometer.org/sites/default/ files/publications/Dispatches/ab_r6_dispatchno30.pdf (Accessed on 21 June 2016).

Fakir, E. 2007. Public service delivery in a democratic, developmental state. Policy: Issues and Actors, 20(3). Available at: http://dspace.cigilibrary.org/jspui/bitstream/123456789/30635/1/pia20_3.pdf? (Accessed on 7 January 2019).

Fombad, F.C. 2007. Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa. The American Journal of Comparative Law, 55(1):1–45. Available at: https://www.jstor.org/stable/20454564 (Accessed on 08 January 2019).

Fombad, C.M. 2011. Constitutional Reforms and Constitutionalism in Africa: Reflections on Some.

Gildenhuys, J.S.H. 1997. Ethics and the Public Sector. Cape Town: Juta and Company.

Gildenhuys, J.S.H. and Knipe, A. 1997. The Organisation of Government: An Introduction. Pretoria: Van Schaik.

Goldwin, R. 1976. Locke’s State of Nature in Political Society. The Western Political Quarterly, 29(1):126. doi:10.2307/447588. JSTOR 447588.

González-Jácome, J. 2017. From abusive constitutionalism to a multi-layered understanding of constitutionalism: Lessons from Latin America. International Journal of Constitutional Law, 15(2):447–468. Available at: https://doi.org/10.1093/icon/mox017 (Accessed on 12th February 2019).

Grace, J. 2016. Constitutional and Administrative Law: Key Facts and Key Cases. 1st Ed. London: Routledge- Taylor and Francis Group.

Hobbes, Thomas. 1651. Leviathan in Curley, E. (Ed.) 1994. Indianapolis: Hackett Publishing. https://theconversation.com/kenyas-supreme-court-ruling-and-what-it-means-for-the-country-83549 (Accessed on 21 June 2016). https://www.news24.com/Africa/News/africa-faces-a-new-threat-to-democracy-the-constitutional- coup-20170209 (Accessed on 21 June 2016). https://www.voanews.com/a/zimbabwe-parliament-amends-constitution-president-handpick-top- judges/3958638.html (Accessed on 21 June 2016).

Issaka, K.S. 2009. The AU and the Challenge of Unconstitutional Changes of Government in Africa. ISS Paper 197. August 2009. P. 4. Available at: https://www.issafrica.org/acpst/papers/the-au-and-the-challenge-of- unconstitutional-changes-of-government-in-africa (Accessed on 21 June 2016).

Kelly, T. 2017. Maintaining Power by Manipulating Memory in Rwanda. Fordham International Law Journal, 41(1). Available at: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/an dhttpsredir=1andarticle=2687andcontext=ilj (Accessed on 12 February 2019).

Landau, D. 2013. Abusive Constitutionalism. UC Davis Law Review 189 (2013); FSU College of Law, Public Law Research Paper No. 646. Available at: https://ssrn.com/abstract=2244629 (Accessed on 8th January 2019).

Levitsky, S. and Ziblatt, D. 2017. How democracy dies: Donald Trump’s contempt for American political institutions is only the latest chapter in a history of opportunistic attacks against them. Available at: https://newrepublic.com/article/145916/democracy-dies-donald-trump-contempt-for-american-political- institutions (Accessed on 8th January 2019).

126 African Journal of Public Affairs Mcloughlin, C. and Batley, R. 2012. The politics of what works in service provision: An evidence-based review. A working paper for the Effective States and Inclusive Development (ESID) Research Programme, Manchester: University of Manchester. Mle, T.R. 2012. Professional and ethical conduct in the public sector. Africa’s public service delivery and performance review (APSDPR), 1(1):21–31. Mwanawina, I. and Lekonyane, C. 2015. Constitutionalism, Parliamentary Condemnation and the South African Public Protector. Law and Politics in Africa, Asia and Latin America. 48(3):402-410. Available at: https://www.jstor.org/stable/26160036 (Accessed on 08 January 2019). Namakula, S.C. 2016. The Efficacy of Presidential Term Limits in Africa. MINDS Annual African Youth Dialogue 3-4 August 2016 Discussion Paper, Available at: https://www.researchgate.net/publication/312880882_ The_efficacy_of_presidential_term_limits_in_Africa/download (Accessed on 12February 2019). Posner, N.D. and Young, D.J. 2007. The institutionalization of political power in Africa. Journal of Democracy, 18(3):126-140. Rwanda’s Constitution of 2003 with Amendments. 2015. Constitute Project. Available at: https://www. constituteproject.org/constitution/Rwanda-2015.pdf (Accessed on 15 February 2019). Scharpf, F.W. 1999. Governing the European Union, Effective and Democratic? Oxford: Oxford University Press. Thompson, E. 2014. What constitutional review processes in West Africa tell us. Available at: https://www.pambazuka.org/governance/what-constitutional-review-processes-west-africa-tell-us (Accessed on 12 February 2019). Tushnet, M.V. 2015. Authoritarian Constitutionalism, 100 Cornell L. Rev. 391. Available at: http://nrs.harvard. edu/urn-3:HUL.InstRepos:17367412 (Accessed on 8th January 2019). Weiler, J.H.H. and Wind, M. 2003. Introduction: European constitutionalism beyond the state. In Weiler, J.H.H. and Wind, M. (Eds.): European Constitutionalism Beyond the State. Cambridge: Cambridge University Press, pp. 1–6. Yash, T. 1994. Constitutionalism and militarism in Uganda. In Asmelash, B. and Mutahaba, G. (Eds.) The Quest for Constitutionalism in Africa. Frankfurt am Main: Peter Lang Publishing Group, pp. 215–239.

Volume 11 number 2 • June 2019 127