Partie II - Constitutions: coexistence, acknowledgment or hybridization of different sources of legitimacy?/ Synthesis of the debate

« The elite that brought about the independence of our country were much more influenced by the western thinking, by the primacy of legality and the need to have constitutions in order to suppress what they saw as potential Pandora’s box: factionalism caused by religion or tribalism. (…) Also this leadership came to the left wing or Marxist …. of liberation movement which downplay the role of religion and tradition in the so called new society they wanted to build therefore there is a lot emphasis on legality and constitution rather than recovering tradition and religion. Although, as it was pointed out in the workshop tradition and religion are important but they sort of like create a constitutional box »

Miguel De Brito (Quoted from the Colloquium)

It was the inclusive and endogenous nature of the constitutional processes prevalent in southern Africa, which, for participants of the symposium at Bamako, Mali (January 2007) marked out the sub-region as the obvious next staging point in their “African tour” of discussions and proposals on governance in Africa. These processes are renowned not only for being open and inclusive but also for their results: home-grown constitutions, which reflect the pluralism of the societies they frame. This session, dedicated to an analysis of constitutions, reviewed the diversity of constitutions currently in existence in southern Africa, so as to gain an understanding of their own legitimacy and also their ability to encourage positive interaction between various co-existing sources of legitimacy within the societies they are charged with regulating.

How were these constitutions able to give expression to the diversity of authorities, and the wide variety of norms and values disseminated by the different sources of legitimacy of power, as touched upon in the first session? Continuing this frame of thought, the issue was raised as to whether constitutions are the source of these different legitimacies, or merely represent a medium for recognising them. How did these texts translate in practice? What prevented them in the main from being applied and respected by the relevant populations?

Building upon work carried out in the “thematic group on constitutions”¹ , running alongside the “Meeting process”, the Polokwane symposium placed constitutions squarely at the centre of the debate. This session was particularly helpful in clarifying the widrange of notions and perceptions of the role national constitutions play within this sub-region, and, for purposes of comparison, within West Africa – indeed, this was the subject of lively exchanges between francophone participants (delegates from West Africa having participated in the Bamako symposium) and their English and Portuguese-speaking counterparts.

Two main lines emerged from this session: firstly, an affirmation that the constitution should be adhered to – on a consensual basis in principle – as a source of legitimacy of power; and secondly, an acknowledgement that this is clearly not happening in practice, which in turn calls for an analysis of the way in which constitutional legitimacy is rooted within society.

A relatively general adherence to the constitutional norm as a source of legitimacy of political power

The discussions and first-hand accounts, as well as the written contributions collated for this symposium, all make clear the crucial importance of the constitution-as-object, when seeking to understand southern Africa’s political and social systems. Whilst the constitution guarantees a set of fundamental norms and a certain institutional structure, it also, more importantly, represents the existence of a consensus within southern African societies, which is grouped around shared values and aspirations. For a large number of the contributors to this symposium, the constitution is a virtual embodiment of the “social contract” upon which the countries within this sub-region are based, and as such, has been almost unanimously recognised over the course of these debates as the primary source of political legitimacy in the countries at issue here. Discussions on the reality and importance of regionalised reviews of constitutionality have illustrated its significance, particularly with respect to the rest of the African continent - indeed the debates between our southern African and West African colleagues were immensely productive from this perspective (see the write up of Assane Mbaye’s contribution).

How can we understand the symbolic strength of the constitution-as-object, which a majority of this symposium’s participants was at pains to stress?

• Numerous southern African countries perceive constitutions to be the result of inclusive, participatory and open processes, of which the 1993 Constitution of the Republic of South Africa is doubtless the finest example. As Paul Hoffman reminded us, it was the culmination

of a process lasting nigh-on seven years, which gave voice to an enormous breadth of interests (two million people participated in its creation). According to him, this is why its legitimacy is now profoundly respected by the various actors within South African society, whether they be part of the population at large or even the political class. This symbolic strength associated with participatory and inclusive processes also existed in West Africa – as Assane Mbaye reminded us during his re-examination of the role of the “National Conferences” in drafting constitutions in West Africa after the wave of democratisation in the early nineties. Discussions showed, however, that this procedural legitimacy has been weakened and maybe even called into question once more by the various redrafting processes being utilised at present. In Senegal for example, most of the moves to redraft the constitution were initiated unilaterally by the executive.

• Southern Africa’s post-liberation or post-apartheid attempts at drafting constitutions were set within a political context which was closely bound up with the national liberation movements – or, in the case of South Africa, with the struggle against apartheid. These movements and struggles loom large in the collective imagination as symbols of a re-appropriation of the population’s own destiny and the advent of a political system, which was closer to peoples’ aspirations. The existence of home-grown constitutions derived from national processes is thus a major source of legitimacy, in contrast to the experiences of many West African participants, who deplored the overly-“imported” nature of their region’s national constitutions.

• Finally, the significant penetration of the “legal culture” into southern African countries also appears to be a crucial factor with regard to the legitimacy of the constitutions in their current form. And as Dominique Darbon reported, the extent to which legal norms predominate in the midst of such a wide range of local contexts is unmatched elsewhere in Africa. As Mr De Brito reminded us, legal normativity, particularly in its constitutional form, is also a way of warding off risks such as factionalism, whilst disrespect for human rights could stem from immoderate practices linked to diverse sources of legitimacy.

The exchange of opinions and experiences throughout the symposium has only served to confirm a strong attachment to the symbol of the constitution, as a transcendental source of legitimacy for political power in the sub-region. Nevertheless the passionate, almost ideological way in which certain participants have spoken about constitutionalism, as well as the anxieties expressed by a majority as to the actual effectiveness of the constitutional norm shows that there is a significant gap between the reality of an elite group and that of most of the population. The issue at the heart of constitutionalism has thus been laid bare: can we consider southern Africa as characterised by having constitutions which are not rooted within a culture of constitutionalism?

Constitutions without constitutionalism?

The existence of a text versus its actual implementation – a disconnect:

Over the course of the debates it became clear that the crux of the matter, in concrete terms, was how an acknowledged legitimacy for constitutions in theory connected with the reality of implementing what is currently a widely challenged constitutionalism in practice. Dr Hastings Winston Opinya Okoth-Ogendo’s phrase: “constitution without constitutionalism”, taken up by Professor André Mbata Mangu, designates the widening gulf between a founding symbol of post-liberation or post-apartheid societies, and the extent to which it has been implemented and respected.

Pauline Dempers’ contribution on this subject was enlightening: “The issue today isn’t whether constitutions exist or not, but whether they are put into practice by decision-makers”. Governments themselves appear to be one of the prime instigators of these challenges to constitutional implementation in the majority of countries in the region. The weakening, not only of the judiciary’s independence in favour of the executive, but more generally of the principle of the separation of powers, together with the blurring of the boundaries between a governing party, such as the ANC, and the state as a whole – all of this serves to undermine the ability of constitutions to govern and regulate the various branches of state. Mr Hoffman was thus moved to call for increased controls, notably on the part of actors within civil society, upon states themselves practising constitutionalism. The South African constitution provides judicial means for controlling government activity, but it is becoming more and more difficult to make use of these. This necessity for control, a point which André Mbata also returned to, takes us back to a fundamental principle: the legitimacy of the constitution-as-object is not an eternal given, but needs to be supported in practice, and constantly nurtured through transparent procedures for its revision and a strict respect for the principles emanating from it. The professor added that constitutional legitimacy was a “dynamic”, “political” process, which could be harmed by applying constitutionalism in a certain way. This view was corroborated by Assane Mbaye, who explained that it is precisely this weakness in the way in which constitutionalism is applied, which is greatly undermining constitutional legitimacy in West Africa: “Although the constitution should be used as a power-curbing tool, West African judges all too rarely interpret it in this way and are thus striking a blow at the usefulness and legitimacy of our constitutions.” Senegal is an example here of just how frequently constitutions are being unilaterally amended by governments, with the aim of adapting a country’s legal framework to suit electoral and political circumstances in the here and now.

An affirmed constitutional legality, but a constitutional legitimacy in need of einforcement:

André Mbata Mangu re-examined in more general terms the population’s understanding of and respect for the constitution. If the constitutional processes of certain countries – notably South Africa – were more open and inclusive than those in most other African countries, does this mean that the populations of those countries now adequately believe in and respect their constitutions, can identify with them sufficiently, and feel some proper sense of attachment to them? This line of interrogation largely reverts to that which Assane Mbaye proposed, the latter writing that: “This is a thorny issue, verging on the taboo - for if the constitution is not respected and if modern constitutionalism is not making its influence felt, could this not be due, in part, to the values which they disseminate and which form their basis?” Any legitimacy attributed to an entity of a norm is based upon the beliefs, perceptions and expectations of its subjects. By analysing these, we might succeed in measuring the assertion that the populations in this region unanimously adhere to constitutional norms in practice. Professor André Mbata Mangu used the example of Zimbabwe as a clear illustration of the dangers of a disconnect between the constitution and the people upon which it is based. The transition from the “colonial” constitution, which had been imposed by the British Empire, to a home-grown constitution is not sufficient in itself formally to establish its legitimacy. The polarisation of political life and of the application of power around the party-state is also a powerful medium for disconnecting constitutions and populations.

Increased sociological rootedness and improved constitutional practices:

The participants analysed the causes and processes at the root of this discrepancy between the symbolic force accorded to constitutions and what happens in practice. This led to their identifying various courses of action, which could help strengthen the adherence of the population to constitutional norms:

Constitutions are historical and political objects:

Assane Mbaye’s contributions, together with those of other participants who did not come from southern Africa, put this powerful adherence to the constitutional norm, which is deeply embedded within this sub-region’s political imagination, into an initial perspective. Maurice Engueleguele thus laid stress on the constitution’s highly political dimension, which generally reveals the balance of powers existing within a country at the time it was drafted, as well as the political context, and asked: “Why are we unable to envisage the constitution as not only a legal, but also a political tool?” According to Engueleguele, every constitution represents above all else the result of a political settlement between the various powers in existence at a given period. He went on to explain that, even where constitutions have inclusive drafting processes, this is not sufficient to make them inviolable objects. And if the procedures for revision are not themselves inclusive, then constitutions lose their legitimacy. This is exactly what Professor André Mbata Mangu reminded us when he described the 1993 Constitution of the Republic of South Africa as the result of a subtle compromise between the apartheid government and the liberation movements. Various participants called for vigilance therefore, against the risk of the “constitutional fetishism”, which Maurice Engueleguele had denounced. This was the approach notably taken by Professor Dominique Darbon, who dwelt on the existence of a form of “holy story” at the very root of constitutional processes, and on the impossibility of keeping the constitution-as-object uniquely within the legal-rational domain. In support of his argument he reminded us that constitutionalism had first emerged in late 18th century-Europe as a form of ideology, which sought to contest the monarchy’s divine right to rule and, more generally, absolute power. Constitutionalism cannot therefore be understood in isolation from its historic and socio-cultural roots.

When constitutional processes are understood in this way, it is possible to take a dynamic approach to them. One is also prompted to consider constitutions from the perspective of the societies they are supposed to embody and to pay closer attention to the context, founding and unifying myths, and particular evolution of each constitution.

Constitutional normativity has the authority to reflect social pluralism and therefore to take account of the wide range of sources of legitimacy:

Key to the problem of constitutional legitimacy, is thus whether it is able to reflect the wide range of sources of legitimacy co-existing at the heart of every society (and which were the focus of discussions during the first session: the legitimacy of the religious norm and of traditional authority; the historic legitimacy of national liberation movements and their heroes, etc.). For, as Assane Mbaye reminded us, the declaration of a nation’s values constitutes one of the meeting points between the constitution and the requirement for legitimacy. “A state’s constitution should reflect its social diversity”. But does referring to other sources of legitimacy within the context of constitutions suffice in itself to ensure that the constitution effectively reflects the collective imagination born out of social pluralism?

Several participants raised this question of embedding formal “references” to a diversity of sources of legitimacy within constitutions from the region, with each reference based on normative authorities and systems. André Mbata Mangu referred here to the constitutional role played by the traditional chieftainship in Lesotho, and the presence of these chieftains in Zimbabwe’s official Assemblies. He also highlighted the pronounced mark left by national liberation movements on the national constitutions, particularly evident within the Zimbabwean and Namibian constitutions. On a more general note and referring to the issue of traditional authorities Assane Mbaye asked the following question: by acknowledging norms or even values derived from sources of power legitimacy other than the constitutional source is one accordingthem a source of legitimacy, or simply formalising a legitimacy which is actually rooted in traditional beliefs and religions?

For all that, does this “official” integration, this “legalisation” or this “formalisation” give constitutions the right to be accepted by populations as the primary normative reference? Do all the actors within a country regard the constitution and, more broadly, state normativity as the common rule governing their behaviour; as the social and cultural framework for their thoughts and actions? (Eberhard 1997). Chief Lerotholi reminded us in this respect that: “We did not become new human beings with the advent of new constitutions. We still regard ourselves as “traditional” peoples, guided by a certain number of cultural practices. A gap is opening up between what the constitution is proposing and what populations consider to be their priorities.” These priorities may be derived from value judgements, which are totally different to those propounded by the constitution. Some traditional South African chieftains for example, have declared themselves extremely uncomfortable with constitutional provisions banning the death penalty, for example, or dealing with issues such as gay rights.

“The law can be considered as formalised legitimacy, but not every outcome of legitimacy falls as a matter of course within the domain of legality” – as André Mbata Mangu reminded us. The tendency, when faced with de facto judicial pluralism, is to acknowledge the existence of other legal orders (traditional, religious etc.), but only those recognised by the state, according to Professor Camille Kuyu. Furthermore, this formalisation, or legalisation of legitimacy only very rarely takes into account the underlying values embodied by these other sources of legitimacy and the other poles of development of the norm (given that the state does not in fact constitute the sole source of normative power). In short, rather than incarnating societies’ dynamism, it may sometimes ossify their structures and regulations. Hybridizing underlying normative values strengthens the vitality of such institutionalisation in instances where restrictive judicial pluralism tends to mummify or even folklorise them. Professor Dominique Darbon returned to this issue in his analysis of the extent to which local practices are genuinely coupled with constitutional norms: “What happens if a majority of the population takes tradition as its primary point of reference, effectively marginalising the constitution as a form of regulation? Shouldcustomary law therefore be included within the constitution? Which should be changed: the constitution or customary law?” Ross Herbert raised this same question when he wondered what would make a “good” constitution: “What indeed is a soundly drafted constitution? It is a constitution capable of understanding the way in which the population behaves”.

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The presentations and discussions, which have taken place during this session, have served to bring out three general issues with regard both to the legitimacy of constitutional processes and to constitutions. Firstly: how can constitutions improve the way in which internationally-recognised core collective values interact structurally with each society’s specific modes of regulation? Secondly: how can any evolution on the part of such modes of regulation be taken into account? And thirdly: how can we ensure that neither the legitimacy nor the effective implementation of the constitutional norms is undermined by constitutional practices themselves?

More specifically: these discussions have given some indication of the strong commitment on the part of the sub-region’s actors to the constitution-as-object, both as a source and as a medium of legitimacy. In most countries within the sub-region, constitutional processes have historically emerged from a participatory and inclusive dynamic prompted by national processes of reconciliation – with the result that they are both innovative and highly political in nature. They have spawned constitutional texts, which are internationally regarded as attempts to take account of the social pluralism of the societies in question. However, these discussions brought out the discrepancy between this constitutional reference and the everyday practices of populations. A majority of people within these populations do not currently regard the constitution, and the legal-rational normativity to which it gives rise (public law etc.), as the source of regulation structuring their everyday practices. Tradition and/or religion continue to be called upon as substitutes for or sometimes in competition with the legal-rational norm.

The discussions on legal pluralism opened up a range of new perspectives on this. If the legitimacy of power cannot be founded merely upon a reference to a single source of legitimacy (international legitimacy, legal legitimacy, rational legitimacy, etc.), then neither can it be confused with a simple superposition of the different sources of legitimacy of power. Indeed, the question of the legitimacy of power can only be resolved through some sort of medley-effect; perhaps this “constitutional box” of Mr De Brito. There is a need for mixing, for hybridization – that is, for the emergence of a new normativity, which is more than the simple sum of (or to be specific: the simple reference to) the different sources of legitimacy. Legitimate governance requires in effect a creative quest, which must be rooted in an analysis of how the various sources of legitimacy interact in practice – whether that be confrontation, hybridization etc. As Dominique Darbon reminded us in his summary of the first session: “governance is not simply a matter of one (normative) order prevailing over the others, or of different orders co-existing; there must also be debate and follow-up, with respect to the impact of their hybridization”. Retaining this outlook, we moved on to our third session, a forum for analysing these practices, on the subject of land management.

Notes

¹This group came to be formed as a result of the November 2005 forum in Addis Abeba (jointly organised by the Commission of the African Union and the Alliance to Refound Governance in Africa), which included the formation of an inter-African research group on modes of governance in Africa as part of its action plan. The group is multidisciplinary and is open to university researchers but also to traditionalists. It formally came into being in West Africa at a 2008 workshop held in Lomé, which asked: “What options for constitutions in Africa?” The group aims to extend its reach across other regions of Africa. It defines its function as contributing to the continent’s intellectual autonomy and its goal as contributing to the construction of constitutional models, which represent the reality of Africa, particularly as regards values and institutions. It is run by the Alliance to Refound Governance in Africa.