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 re- placed 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 re- ferred 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 up- hold 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 citi- zenry 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, incum- bents 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

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