Constitutions and Legitimacy of Power in Southern Africa

By Prof André Mbata B Mangu

Department of Public, Constitutional and International Law, College of Law, University of South Africa

Background

Since the 1980s and following the failure of the structural adjustment programmes (SAPs), which were supported by the Bretton Woods institutions, “governance” has come to be a catchall term, a fashionable buzzword in political, economic, social, and scientist discourse. Due to its adoption by international financial institutions (IFIs) such as the World Bank and the International Monetary Fund (IMF), and the most developed countries that finance them, governance has been put at the heart of any developmental strategy or policy. It has replaced structural adjustment programmes as a new form of conditionality for aid and a criterion for leadership assessment. The popularisation of “governance”, alongside market globalisation, has also resulted into its regionalisation and domestication in Africa although it cannot be said that traditional Africa totally ignored the concept. The Constitutive Act of the African Union (AU) provides that the objectives of the AU are inter alia to promote democratic principles and institutions, popular participation and good governance.¹ The principles of the AU also include respect for democratic principles, human rights, the rule of law, and good governance.²

The twin objectives of the New Partnership for Africa’s Development (NEPAD), which was launched in July 2002, are the eradication of poverty and the fostering of socio-economic development, in particular, through democracy and good governance.³ Later on, countries participating in the NEPAD adopted a Declaration on Democracy, Political, Economic and Corporate Governance⁴ that provides for the African Peer-Review Mechanism (APRM) as NEPAD’s lynchpin.⁵

This Declaration is the main instrument on which the work of the APRM is based. If taken seriously, it should contribute to reinforcing state capacity and leadership legitimacy in Africa. In support of democracy and the democratic process, African leaders undertook to:

• Ensure that their national constitutions reflect the democratic ethos and provide for demonstrably accountable governance;

• Promote political participation, thus providing for all citizens to participate in the political process in a free and fair political environment;

• Enforce strict adherence to the position of the African Union on unconstitutional changes of government and other decisions of our continental organisation aimed at promoting democracy, good governance, peace and security; and

• Strengthen and, where necessary, establish an appropriate electoral administration and oversight bodies and provide the necessary resources and capacity to conduct elections which are free, fair and credible.⁶

The NEPAD Declaration on Governance, which was adopted during the first AU Summit in Durban, South Africa, spells out the institutions and processes adopted to guide peer reviews, based on mutually agreed codes and standards of democracy, political, economic and corporate governance.⁷

Out of twenty-seven (27) African countries that have joined the APRM between 2003 and September 2007, seven (7) are Southern African countries, namely Angola, Lesotho, Malawi, Mauritius, Mozambique, South Africa, and Zambia. The peer review of both South Africa and Algeria was conducted at the 7th Summit of the Committee of Heads of State and Government participating in the APRM (APR Forum) which was held on 1 July 2007 in Accra, Ghana. South Africa and Algeria then joined Ghana, Rwanda, and Kenya, that had already been peer reviewed, and became the first countries to be peer reviewed in their respective sub-regions, namely Southern Africa and North Africa. The “domestication” of good governance at both the regional, sub-regional and national level is evidence that, like democracy that is tied to it, far from being foreign to the continent and its people, good governance also belongs to Africa and is feasible in Africa.

Governance and leadership legitimacy have increasingly attracted the attention of policy makers, civil society organisations, development agencies, political leaders, and social scientists. Institutes and centres have been created to discuss and promote good governance. On the African continent, the Council for Development of Social Science Research in Africa (CODESRIA), the largest gathering of African social scientists, established an institute on democratic governance in 1992.

National and international meetings have been organised on governance and leadership matters.

The Polokwane 2008 Conference, co-organised and supported by the Institute for Research and Debate on Governance (IRG), the Alliance to Refound Governance in Africa, the University of South Africa (UNISA), the University of Limpopo (UNILIMPO), the French Ministry of Foreign and European Affairs, the French Institute of South Africa, the United Nations Development Programme (UNDP), the South African Institute of International Affairs (SAIIA), Modus Operandi and the Charles Léopold Mayer Foundation brings to Southern Africa the debate and exchanges started in Addis Ababa and continued in Bamako to promote good governance and leadership in Africa in general and in Southern Africa in particular.

Against this background, this paper reflects on governance and the legitimacy of power in the light of the constitutions of the Southern African countries⁸ represented at the Conference to find out the extent to which they embody or reconcile the liberation struggle and traditions or religions that have been identified as the two major sources of legitimacy of power in the sub-region. It should also reflect on how the constitution can help reinforce good governance and leadership legitimacy in these countries.

The paper intends addressing a number of issues relevant to the theme of the Conference. It will deal with governance and legitimacy, their respective meaning, forms, and the relationship between them. It will also reflect on leadership, especially political leadership, its meaning and importance, the legitimacy of power and the sources of this legitimacy (liberation struggle, and traditions and religion) in Southern Africa. Furthermore, making a particular case of the Constitution of South Africa that is celebrated as one of the most advanced constitutions in the world, the paper will examine the constitutions of Southern African countries, their main features, their effectiveness or enforceability, the legitimacy of these constitutions, and the relationship between these constitutions and other sources of legitimacy of power, which impacts on the quality of governance in Southern Africa. With the Constitution proclaimed the supreme law of the land in the sub-region, the paper will end with a brief conclusion that will stress the importance of constitutional legitimacy as a new and paramount source of legitimacy of political leadership that is much needed to improve governance in Southern Africa.

Governance and Legitimacy

Although they are not synonymous and governance may and often does exist without legitimacy of power, there is a close relationship between the two concepts. Good governance tends to favour democratic governance and such governance implies legitimacy of power. No “good governance” policy or programme would ever be successful in the long run should the power to implement them be lacking in terms of legitimacy.

Governance and Forms of Governance

According to Hyden, at its modern origin, the language of governance was typically applied by the World Bank and the IMF to serve their narrow purposes.⁹ It was a donor conditionality” imposed on underdeveloped countries. In its 1989 report on the prospects for development in Sub-Saharan Africa, the World Bank defined governance with reference to “the exercise of political power to manage a nation’s affairs”.¹⁰ Governance was narrowly understood to refer to management and particularly to economic and financial management.

When it was conceived, governance did not even refer to “good governance”. It was only in a paper presented at a World Bank-sponsored conference on development economics in 1992 that Boeninger suggested that governance was the same as “good government”.¹¹ But still, it was narrowly understood.

The definition of “governance” was later extended beyond the managerial, technical and economic approach to become more holistic. Long before the March 2005 Paris Declaration,¹² African leaders adopted the NEPAD Declaration referred to earlier that not only stressed good political, economic, social and corporate governance but also linked it to democracy, thereby highlighting the closeness of the relationship between good governance and legitimacy of power.

Good governance implies or requires transparency, equity, justice, promotion of and respect for human rights - whether civil, political, economic, social and cultural - promotion of the rule of law, decentralisation, sound economic policies, open, free and fair elections, popular participation, and peace. Accordingly, to African leaders, good governance can be political, economic, social and corporate and also requires legitimacy of power or democracy.

Legitimacy of Power and Forms of Legitimacy

There does not seem to be a consensual definition of legitimacy. Englebert, for instance, held that “a state is legitimate when its structures have evolved endogenously to its own society and there is some level of historical continuity to its institutions.”¹³

According to Englebert, new African states lack legitimacy because they are not the indigenous creations of local history.¹⁴ Non-legitimate states are non-European and non-North American states.¹⁵ Englebert’s conception of legitimacy is therefore arbitrary and Eurocentric.

Kalevi Holsti distinguished between vertical and horizontal legitimacy. Vertical legitimacy is an estimate of the strength of the relationship “between society and political institutions.”¹⁶ It is a crucial dimension of overall state legitimacy.¹⁷ On the other hand, horizontal legitimacy relates to the agreement within society on what constitutes the polity - the politically defined community that underlies the state. It establishes a link between the population and the territory of a state.¹⁸

As far as we are concerned, legitimacy entails the acceptance by the people of those institutions that seem to correspond to and promote the values of the society. Legitimacy refers to the acceptance of governmental leadership by those who are governed. A government whose acceptance or legitimacy is contested is likely to resort to authoritarianism, intimidation, or manipulation, and to exercise power rather than to seek authority.¹⁹ The consequence is frustration, anger, and even aggression on the part of those who feel permanently locked out of available social opportunities.²⁰

According to Conteh-Morgan, a party or a government can be considered legitimate only if there is widespread acceptance that it is widely representative, or is dedicated to realising a set of overriding common goals that adequately benefit the entire populace.²¹ Englebert’s contention that a legitimate government need not be just, democratic, inclusive, popular or otherwise accountable to its citizens, but only indigenous,²² is controversial since there is a close relationship between state legitimacy and state capacity or developmental capacity.

One may distinguish between international or foreign, and national or domestic legitimacy of African governments. The former relates to compliance or promotion of values and interests of the international community or those of some foreign states, while the latter refers to the acceptance of the government by its own people. During the first decades of independence, African governments were more interested in international and foreign legitimacy than in domestic legitimacy, as their life and survival mainly depended on the first.

Arguably, increasing state capacity in Africa would require governments to be preoccupied first with national legitimacy and interests and not the opposite. It is perhaps here that the South African political motto of Batho Pele (people first) should become the first principle of governance, as it would also strengthen leadership legitimacy.

Leadership, Political Leadership and Leadership Legitimacy in Africa

A great deal has been written on leadership in general²³. Few books have been written on leadership in Africa in particular²⁴ and still fewer by African scholars.

Probably terrified by the brutal nature of political leadership in most African countries, African social scientists have shied away from the debate on leadership on their continent. In Africa, as elsewhere, Blondel argues, one reason why political leadership has not been analysed is the fear which it has provoked and still provokes among générations of thinkers.²⁵ As Hobbes would have put it, political leadership is a Leviathan, a frightening beast, which it is perhaps more urgent to tame or to charm than to dissect.²⁶

The Polokwane Conference, which has benefited from the contribution of various partners, including the University of Limpopo where I started my South African academic career as a Lecturer, and the University of South Africa to which I currently belong, brings to the fore the issue of legitimacy of power or leadership legitimacy in a fascinating and courageous debate on governance, which is hardly encouraged by Southern African leaders. Like other social science concepts such as democracy and constitutionalism, leadership is an essentially contested concept.²⁷ There are many definitions of leadership. Elgie undertook a review of the littérature on political leadership and listed at least eight definitions of this concept.²⁸ Faced with so many definitions of leadership, Paige, Burns or Kellerman operated without any definition, despite being concerned with the problem of political leadership.²⁹ Although leadership is central to politics and government, its definition is elusive.³⁰

According to Blondel, leadership is as old as mankind. It is everywhere, and inescapable. Wherever there is a group, there is always a form of leadership.³¹ Some scholars define leadership as a process of human interaction in which some individuals exert, or attempt to exert, a determining influence upon others³² or a process by which one individual consistently exerts more impact than others on the nature and direction of group activity.³³ In Edinger’s view, “Leadership is a position within a society which is defined by the ability of the incumbent to guide and structure the collective behaviour patterns of some or all of its members. It is at all times relational, interpersonal, and is based upon inequality of influence between the leader as the influencing agent and the followers as the objects of his efforts to cue their behaviour so that it will conform to his personal objectives.”³⁴

Of all forms of leadership, however, political leadership, particularly in a nation-state, occupies a special position because it is vastly more visible and, ostensibly at least, more important.³⁵ Many questions about political leadership refer to its meaning and its importance or role in society.³⁶

According to Blondel, political leadership is a phenomenon of power, because it entails the ability of the one or few who are at the top to make others do a number of things (positively or negatively) that they would not do or at least might not have done.³⁷

Hah and Bartol also define political leadership as “the mobilisation and direction, by a person or persons using essentially non-coercive means, of other persons within a society to act in patterned and cohérent ways that cause (or prevent) change in the authoritative allocation of values within that society.³⁸

In Blondel’s view, (national) leadership is “the power exercised by an individual (or, in some cases, two or a few individuals acting jointly) to push members of the polity towards action in a particular direction.”³⁹ It is a form of power, a special form of power, admittedly, since it is exercised by one individual over a large group. It is nevertheless accepted for a number of reasons, ranging from “natural”recognition by, to pressure and even compulsion on, those who are led and who are thus induced to act in the direction which the leader suggests.⁴⁰ Blondel argues that leadership does not just refer to any power, but to influential power exercised on society and that affects ostensibly the destiny of mankind.⁴¹

Cartwright points out that leadership is better defined as government by persuasion rather han force.⁴² The essence of leadership is the ability to persuade others to comply voluntarily with one’s wishes. Leadership involves voluntary compliance by those over whom it is exercised.

It is the ability to obtain non-coerced, voluntary compliance, which enables followers to obtain goals which they share with the leader.⁴³ This is more related to leadership legitimacy than leadership itself; hence, his distinction between leaders and office-bearers or rulers.⁴⁴ Unfortunately, in many African countries, leadership has been and still remains power by force used against the people, as it was under colonialism, rather than power by persuasion or by conviction of the people themselves.

There are several forms and types of political leadership depending on the scope of its influence, on its exercise or style, on the relationship between leaders and the people, or on its achievement. Accordingly, political leadership may be national or international,⁴⁵ regional or subregional, good or bad, democratic or authoritarian, legitimate or nonlegitimate, nationally or externally imposed. Political leadership in post-colonial Africa has been generally authoritarian, non-legitimate or based on an erroneous conception of legitimacy as the acceptance by the international community of foreign powers. It is also interesting to see how some African national leaders have been struggling to extend their leadership on the sub-regional and regional levels.

According to Edinger, “leaders are persons who exercise control over the behaviour of others so as to move them in a desired direction.⁴⁶” Unlike leadership, which is an abstraction, leaders are individuals and they are real human beings, with their emotions, cognitions, predispositions, ambitions, styles of action, characters, strengths, weaknesses, and personalities that make each leader unique.⁴⁷

Since leadership appears to be a formidable power that can affect mankind, whose conditions deserve amelioration, it is clearly valuable, indeed imperative, to see how this power can help to bring about a better life for all in our societies.

As Blondel observes:

Political leadership appears to be one of the clearest ways in which men and women can be induced to work jointly for the improvement of their lot; leadership seems able, by virtue of what it is, both to bring citizens together in a concerted effort and to do so over time by gradual achievements aimed at a common goal.⁴⁸

It can be one powerful means of leading to collective action and result in development of the whole society.⁴⁹ Leadership is critical for the improvement of the positive capacity of the state. As demonstrated by many scholars, it is also critical for the establishment of democracy and for democratic consolidation. In Huntington’s view, “democracy will spread in the world to the extent that those who exercise power in the world and individual countries want it to spread.”⁵⁰

According to Clapham and Wiseman:

Democratic consolidation is most likely to take place when a new leadership emerges, seeking to organise politics in a different way from those adopted by discredited parties and leaders in the past, but within the context of non-violent opposition and the acceptance of basic institutions.⁵¹

In Wiseman’s view, “key decisions taken by leaders at key points in the process have a great impact in enhancing or weakening the prospects of democracy.”⁵²

Reflecting on democracy in India, Krishna held:

The genuine commitment to a liberal democratic policy by the first générations of leaders, especially the first Prime Minister Jawaharlal Nehru …must be regarded as the key [factor] in the emergence and persistence of democracy in India.⁵³

As James Manor elaborated:

Nehru might …have sought a radical centralization of power in his own hands, at the expenses of the party and of formal institutions. He might have employed populist slogans and programs as a substitute …for such institutions. Plenty of other leaders in Africa and Asia did so and they and their countries often paid a heavy price for it. He chose not to and as a consequence the liberal representative order took root and acquired enough substance to endure into the 1970s and 1980s.⁵⁴

As Wiseman further put it:

The characteristics of individual leaders are extremely relevant in determining the political outcomes and this holds true in relation to democratization as it does to any other political developments…The evidence from the relatively limited number of examples of cases where democracy has survived for long periods suggests that the question of political leadership was extremely important. The role of Seretse Khama (Botswana), Dawda Jawara (The Gambia), and Sir Woogsagun Rangoolam (Mauritius) in sustaining democratic political systems during periods when democracy was on the wane in Africa was of a crucial importance.⁵⁵

Therefore, political leadership does matter.⁵⁶ Cartwright has demonstrated how, in Nyerere’s Tanzania and Kwame Nkrumah’s Ghana, for instance, a leader’s influence could have a considerable effect on what happens to a state.⁵⁷ This has been recently done by Roger Southall and others in their study of Leadership Change and Former presidents in African politics.⁵⁸

Hence the importance of reflecting on political leadership and assessing how far, and under what conditions, leadership is likely to be good and uplift the living conditions of the people; how a legitimate leadership may emerge and consolidate and what to do to ensure that there is peaceful life after the exercise of power both for the leaders themselves and for the people they once led. However, the quality of leadership is closely related to its legitimacy and is influenced by the sources of this legitimacy.

As stressed earlier, and probably on the basis of the libération struggle in countries such as Mozambique, Namibia, South Africa, and Zimbabwe and in view of the role played by traditions and religions in the sub-region in general and in countries such as Lesotho and Swaziland in particular, liberation struggle, and traditions and religions were identified as the main sources of legitimacy of power in Southern Africa. With the exception of Swaziland, each Southern African country has adopted a constitution as a basis of the legitimacy of power. It is therefore worth investigating how the different Southern African constitutions have been influenced by these two sources of legitimacy and how they approached them.

Constitutions, Legitimacy of Power and Sources of Legitimacy in Southern Africa

Main and Common Features of Constitutions in Southern Africa

Despite their different historical, political, economic and social backgrounds, Southern African countries adopted constitutions with some common features.

First, these constitutions are the expression of the development of constitutionalism in these countries where the first constitutions were adopted shortly before independence. The current constitutions therefore dramatically differ from the constitutions at independence. Except for countries such as Mozambique, Namibia, South Africa and Zimbabwe, where a liberation struggle took place, the first constitutions were imposed by the former colonial power – Britain and Mozambique– or by the United Nations (in the case of Namibia), while the current constitutions appear to be home-grown constitutions. They aim at establishing a democratic regime⁵⁹ based on good governance, respect for human rights⁶⁰ and the promotion of the rule of law.⁶¹

Moreover, they are supreme and prevail over other pieces of legislation. Any other law that is inconsistent with the Constitution is void to the extent of the inconsistency.⁶² These are entrenched constitutions that cannot be amended easily and require substantial majorities in the Houses (Senate and National Assembly) or even a referendum to be amended.⁶³ They contain a comprehensive Bill of Rights and are to be enforced by an independent judiciary.⁶⁴ Furthermore, these constitutions are written and provide for an independent judiciary to enforce them.

Finally, these constitutions have become the new and major sources of legitimacy of power as compared to the liberation struggle and to traditions and religions.

Constitutions and Other Sources of Legitimacy of Power in Southern Africa

Undoubtedly, the constitutions of Southern African countries have been influenced by the struggle for liberation through liberation movements and also by traditions and religions.

Influence of Liberation Struggle as a Source of Legitimacy of Power in Southern Africa

Unlike in Lesotho, people in Namibia, Mozambique, South Africa, and Zimbabwe embarked on a protracted and violent struggle for liberation from the colonial or apartheid rule. This was not typical of Southern Africa.

The liberation struggle took place in other African countries such as Angola, Algeria, Guinea-Bissau, and Cape Verde where the colonial masters refused or delayed independence.

Even in French-speaking Africa, where France preferred to keep its former colonies within the framework of “community” while retaining many powers of sovereignty instead of granting them immediate and total independence, or in Belgian Congo, a liberation struggle took place under the leadership of nationalist leaders.

The main difference with Southern Africa lies in the extremely brutal violence of the colonial or the apartheid regime, which also called for a more violent struggle for liberation with liberation movements that ultimately led their people to independence and subsequently acceded to power. On independence, these liberation movements were transformed into political parties as the new system promoted legal and political pluralism. The legitimacy of this leadership was based on the fact that the new leaders participated in the liberation struggle and led their people to independence.

Arguably, no constitution in Southern Africa stresses the liberation struggle more than the Constitution of Mozambique. The Mozambican Constitution is probably the one that most highlights the liberation struggle. Reference to the armed struggle for national liberation is made in the very first provisions of the Mozambican Constitution.⁶⁵

The Constitution also provides that the Republic of Mozambique shall esteem the heroic struggle and old-age resistance of the Mozambican struggle against foreign domination.⁶⁶ It shall acknowledge and esteem the sacrifices made by those who gave their lives to the national liberation struggle and to the defence of the country’s sovereignty and democracy. The state shall ensure the special protection of those who were disabled in the national liberation struggle, as well as the orphans and other dependants of those who died in this cause and a law should and has been enacted to determine their rights.⁶⁷ Moreover, the state shall ensure special protection to those who were disabled during the armed conflict that ended with the signing of the General Peace Agreement in 1992, as well as to the orphans and other direct dependents. The State shall likewise protect those who have been disabled in the performance of public service or a humanitarian act.⁶⁸ In its African policy, the Republic of Mozambique shall be in solidarity with the struggle of the people and states of Africa, for unity, freedom, dignity and the right to economic and social progress. It shall seek to strengthen relations with countries engaged in the consolidation of their national independence, democracy and the recovery of the use and control of their natural wealth for their respective peoples.⁶⁹

The Republic of Mozambique shall also support and be in solidarity with the struggles of peoples for their national liberation and for democracy. It shall grant asylum to foreigners persecuted on the grounds of their struggle for national liberation, for democracy, for peace and for the protection of human rights.⁷⁰

Red as a colour of the national flag of the Republic of Mozambique represents the centuries of resistance to colonialism, the armed national liberation struggle and defence of sovereignty.⁷¹ All the above provisions express the influence of the liberation struggle as a source of legitimacy of power in the Republic of Mozambique. However, the main source of legitimacy of power in Mozambique as a democratic state⁷² is not the liberation struggle, but the Constitution, which proclaims that sovereignty is vested in the people.⁷³ The people elect the President⁷⁴ and the members of the Assembly of the Republic (National Assembly).⁷⁵

The second Southern African Constitution to emphasise the liberation struggle is the Constitution of Namibia. The Preamble to the Namibian Constitution recognises that the rights of the people of Namibia had for long been denied by colonialism, racism and apartheid.⁷⁶ It also celebrates the victory of the people of Namibia in their struggle against colonialism, racism and apartheid.⁷⁷

The Namibian people therefore adopted the Constitution as the fundamental law of their sovereign and independent Republic.⁷⁸ Unlike the Constitution of Mozambique, it did not refer to the liberation struggle or to the benefits accrued to those who made sacrifices during the struggle.

However, although other Southern African countries such as South Africa and Zimbabwe also went through a liberation struggle, there is no reference to liberation struggle in the constitutions of these two countries. This may be attributed to the fact that the 1993 Constitution of the Republic of South Africa (the interim Constitution) was mainly the result of a political compromise between the apartheid government and the liberation movements and the first Constitution of Zimbabwe was enacted by Britain, the former colonial power.

The Constitution of Namibia, like the constitutions of other Southern African countries, has established new rules and become a new source of legitimacy of power. It provides for elections,⁷⁹ but the liberation struggle still plays a role as a source of legitimacy of power. This explains why SWAPO, like ANC, ZANU-PF, and FROLIMO were voted in and maintained in power in Namibia, South Africa, Zimbabwe, and Mozambique respectively. The people granted them legitimacy as per right for their participation in the liberation struggle.

As during the early years of independence when the nationalist leaders were elected to take over from the colonial masters, the leaders of these former liberation movements also came to believe that they were entitled to rule and even to rule forever because the people owed them their liberation and independence.

In Namibia, as in Mozambique and in South Africa, the liberation struggle still plays an important role as a source of legitimacy of power and mainly justified the First Amendment to the Namibian Constitution⁸⁰ in terms of which the first President of Namibia was entitled to hold office as President for three terms,⁸² while the Constitution provided that the President could be re-elected only once. This was mainly to pay tribute to the SWAPO leader, President Sam Nujoma.

However, as for the legitimacy of nationalist leaders on and after independence, which was based on their participation in the struggle for independence or against apartheid, the liberation struggle as a source of legitimacy of power in Southern Africa is a provisional one. It is set to decline.

We now have learnt from history that it cannot hold for more than a quarter a century. As far as Southern Africa is concerned, this already happened in countries such as Zambia and Malawi, where independence and fathers of the nation’ such as Kenneth Kaunda and Dr Kayibanda failed into disgrace and ended up losing their historic “legitimacy” as leaders to the point of being voted out of power by the same people to whose liberation they contributed.

The most recent case in point relates to the March 2008 parliamentary elections in Zimbabwe where freedom fighters and veterans of the war of independence under the banner of ZANU-PF lost to the opposition of the Movement for Democratic Change (MDC) despite repeated claims that they brought independence to Zimbabwe and the MDC leaders were only imperialist and former colonial masters’ “puppets”. The Zimbabwean people refused to buy into this claim of legitimacy based on the participation in the liberation struggle.

They are also unlikely to buy into it after President Mugabe, the father of independence himself, failed to win the presidential election and came second after Mr Tsvangirai, the MDC leader.

Arguably, President Mugabe is likely to lose during the run-off presidential election to be organised on 7 June 2008 if this election is free and fair, deprived of violence, intimidation, corruption and voterigging. The result of the Zimbabwean March 2008 presidential election should serve as a strong message to freedom fighters still ruling in Mozambique (FROLIMO), Namibia (SWAPO), and South Africa (ANC) who would better find other sources of legitimacy rather than rely on the liberation struggle which has proved a temporary and fragile source of legitimacy on the African continent.

Despite their major contribution to the struggle and the respect and gratitude that they deserve from the people they helped to free from colonial or apartheid rule, their days in power are definitely numbered and the question is not whether they will or will not be voted out of power, but when.

They are likely to survive if they abide by the Constitution and deliver on their promises of a better life for all after defeating the apartheid regime and bringing independence to their peoples. This would be a much stronger source of legitimacy of power.

Arguably, people do not eat democracy or freedom and it is not that “starving people do not need democracy,” as some contended⁸³. However, what Mahatma Ghandi once said recently found illustration in South Africa: “an empty stomach is not a good political adviser.”⁸⁴ Delivery and good governance, and not participation in the liberation struggle, are needed to command legitimacy for many decades after independence or the collapse of apartheid. In Africa as elsewhere, people are ready to celebrate, to chant and to dance for their leaders… But once the leaders have failed them or fallen, they hardly cry for them and are rather quick to acclaim new “Moses” likely to lead them to the “Promised Land” where they would enjoy not only political freedom, but all possible social and economic rights.

Influence of tradition and religion as Sources of Legitimacy of Power inSouthern Africa

In Southern Africa, as elsewhere, including in Britain and Portugal, the former colonial powers, traditions and religion also constitute a source of legitimacy of power at the national, provincial or local level of government. People trust and support their leaders because of tradition and religions; they are believed to be there in the name of tradition and power emanates from God.

At both the national and the provincial and local levels of government, tradition and religion are recognised as a source of legitimacy of power in many Southern African countries. Customary law is also recognised as law.

South Africa is a case where more than the liberation struggle, traditions and religions are considered by the Constitution as a source of legitimacy.

A house of traditional leaders was established as a public body. Traditional leadership is recognised by law.⁸⁵ South Africa also has a host of Kings who are paid by the state. These unelected leaders still enjoy legitimacy under a Constitution that has been acclaimed as one of the most progressive and democratic on earth. This serves as evidence that traditions and religion still hold as a source of legitimacy of power. On the other hand, the fact that the Constitution recognizes such traditional leadership while proclaiming that power belongs to the people who exercise it through elections also testifies to the survival of traditions and religion as a source of legitimacy of power under the Constitution. The APRM Country Review Mission to South Africa found that there was a widespread acceptance that traditional leadership is not incompatible with modern governance structures and enjoys legitimacy under the Constitution.⁸⁶

Traditions and religion as sources of legitimacy of power are much more pronounced in a constitutional monarchy such as Lesotho, in an authoritarian one like Swaziland, in a democratic Republic such as Botswana or in a country like Zimbabwe where ZANU-PF freedom fighters have not performed better than the former colonial masters.

The Constitution of Lesotho⁸⁷, which came into operation on 2 April 1993, provides that Lesotho is a sovereign democratic kingdom⁸⁸ and the Constitution is the supreme law of Lesotho.⁸⁹ The King is a constitutional monarch and Head of State.⁹⁰ The Oath of Office of King or Regent⁹¹ provides that he should observe the provisions of the Constitution and all other laws of Lesotho. If he fails to do that, he may be deposed by a resolution of the National Assembly of the Senate⁹². The succession to the throne of Lesotho is based on the customary law of Lesotho. The King or Regent is appointed by the College of Chiefs.⁹³ The Constitution provides for twenty-two (22) offices of Principal Chief⁹⁴ and for a College of Chiefs,⁹⁵ who appoint and may dismiss the King or the Regent.⁹⁶

The 22 Principal Chiefs are also members of the Senate of Lesotho.⁹⁷ One of these Principal Chiefs, nominated by the College of Chiefs, sits on the Council of State provided by the Constitution to advise the King.⁹⁸

Even in Mozambique, Namibia, South Africa and Zimbabwe where liberation struggles took place and where tradition and religion are also important, the Constitution is the supreme law of the Republic and the primary source of legitimacy of power, and not liberation struggle, traditions or religions.⁹⁹

Apart from Swaziland, which is not a constitutional monarchy and is not on the agenda of the Conference, Lesotho provides a case where traditions and religion have played the most important role as a source of legitimacy of power even though this influence now derives from their endorsement by the Constitution as the supreme law of the land and therefore the primary source of legitimacy of power.

Elsewhere, in a country like Zimbabwe,¹⁰⁰ liberation struggle has not prevailed over traditions and religion as a source of legitimacy. The Constitution of Zimbabwe only refers to traditions in its miscellaneous provisions.¹⁰¹ It provides for Chiefs to preside over the tribes-people in Zimbabwe. These Chiefs are appointed by the President in accordance with an Act of Parliament.¹⁰² In appointing a Chief, the President shall give due consideration to the customary principles of succession of the tribes-people over which the Chief will preside and may provide for the appointment of deputy Chiefs and acting Chiefs.¹⁰³ There shall be a Council of Chiefs, which will consist of Chiefs elected by the Chiefs from each of the various areas of Communal Land.

An Act of Parliament may provide for the establishment of twenty (20) or more Councils of Chiefs for separate areas of Communal Land.¹⁰⁴ The Constitution also provides that the Senate, which together with the House of Assembly, constitute Parliament, should consist of sixty-six (66) members, eight (8) of whom should be Chiefs representing each of the provinces, other than the metropolitan provinces, and elected according to the Electoral Law.¹⁰⁵ The Constitution provides for the election of the President, most of the members of Parliament and the Senators.¹⁰⁶

Even freedom fighters and Chiefs have to be elected. However, even in this case, the legitimacy of these Chiefs comes more from the Constitution and the Electoral Law than from the liberation struggle or from tradition and religion.

Despite the importance of liberation struggle and tradition and religion, these sources of legitimacy have only survived and owe their strength to the Constitution. The Constitution as the supreme law of the land has also become the major source of legitimacy of power and embodies a new social contract between the people and their leaders. Its own strength rests on its legitimacy.

Legitimacy of the Constitutions in Southern Africa

As pointed out earlier, good governance, especially good political governance requires constitutions that are legitimate. But how legitimate are the constitutions of Southern African countries? The main assumption is that home-grown constitutions tend to be more legitimate than borrowed or imposed constitutions, though they may also be illegitimate.

Okoth-Ogendo lamented over “Constitutions without constitutionalism” in Africa, as countries tended to adopt or change constitutions that hardly comply with the principle of constitutionalism that requires the limitation on the powers of the government, the existence of a constitution that is legitimate and the protection of human rights. In Okoth-Ogendo’s words, this is an African paradox whose primary elements are the commitment to the idea of the Constitution, and rejection of the classic notion of constitutionalism.¹⁰⁷

Issa Shivji also noted that “although we have had great use, if not reverence, for the documents called constitutions, there has been little regard for the constitutional principle or constitutionalism.” According to Rosenfeld, “Not all constitutions conform to the demands of constitutionalism ».¹⁰⁹

In Andrews’ words:

Tyrants, whether individual or collective, find that Constitutions are convenaient screens behind which they can dissimulate their despotism… Provisions that seem to be restraints can be employed to rationalize the arbitrary use of power. Apart from these slim limitations, Constitutions can perform other pseudo-constitutional functions in despotic States… They may contribute to the stability of these regimes and guide political action through the channels desired by the despots by explicit description of the machinery of government.¹¹⁰

According to Mojekwu, a written constitution, like those we find in most Southern African countries, may proclaim lofty ideals as its objectives, but ultimately turn into a dictatorship.¹¹¹ Three major tests must be passed by a Constitution to comply with constitutionalism¹¹². According to Nwabueze, “the crucial test is whether the constitution, if any, imposes limitation upon the powers of the government.¹¹³” The second test is the test of legitimacy, not external legitimacy, which would derive from acceptance by the international community or some of its most powerful members, but mainly internal or domestic legitimacy, implying acceptance by the people. The third important test is the protection, promotion and enforcement of human and peoples’ rights.¹¹⁴

A legitimate constitution must emanate from the people. It must first purport to serve the interests of the people and not those of the leaders who long to remain in power. It must express the will of the people and not of the government. Moreover, the people must be involved in the process of its drafting and adoption and should not be caught by surprise by a document foreign to them which they are only requested to adopt by a “yes” vote, as happened in a number of cases.

According to Nwabueze:

A Constitution should be generally understood by the people and be acceptable by them. A Constitution cannot hope to command the loyalty, respect and confidence of the people otherwise and to achieve this understanding and acceptance, a Constitution needs to be put through a process of popularization, with a view to generating public interest in it and an attitude that everybody has a stake in it, that it is a common property of all.¹¹⁵

Nwabueze further contended:

The people must be made to identify themselves with the Constitution. Without this sense of identification, of attachment and involvement, a Constitution would always remain a remote, artificial object, with no more real existence than the paper on which it is written.¹¹⁶

In Nwabueze’s view, “A Constitution need not necessarily have been enacted by the people to have legitimacy… What is important is that the people should be involved in the process of its making.”¹¹⁷

This was echoed by another Nigerian scholar, Ihonvbere, when he insisted on popular participation in the Constitution-making process and held that the people should not only have access thereto, but also understand and claim ownership of the constitution.¹¹⁸

Against this background, how legitimate are the constitutions of Southern African countries? Nowhere was the constitution adopted by referendum. In most cases, it was the product of people’s representatives in Parliament or enacted by the ruling party. What is then the test of legitimacy?

Legitimacy varies from one state to another. The first Constitution of Namibia, which was enacted by the UN, could claim more of an external or international legitimacy than a domestic one. Even in this case, its legitimacy had its source in the liberation struggle led by the liberation movement – SWAPO – that adopted this Constitution. The legitimacy of the Constitutions of Mozambique and South Africa, which were not adopted by referendum, also lay in the liberation struggle and in the liberation struggle led by those who enacted them.

The first Constitution of Zimbabwe,119 as a British Constitution imposed on the Zimbabwean people in exchange for independence, was hardly legitimate. The Constitution which replaced it, and was adopted by ZANU-PF, could therefore be said to have the liberation struggle as a source of its legitimacy based on the role played by a Parliament that was composed of elected freedom fighters within ZANU. As for the Constitution of Lesotho, it posed no problem of legitimacy, as it is an expression of the customary public law of Lesotho and qualifies as a home-grown constitution.

The legitimacy of the constitution is a complex issue. Legitimacy is not given or achieved once and for all. It is dynamic and so is politics itself. A constitution which started as home-grown and legitimate can in the process lose its legitimacy. Inversely, a constitution or a power, which was not legitimate at the outset, can with time gain in terms of legitimacy. Accordingly, for good governance, leaders should work to strengthen the legitimacy of their power.

For instance, the Constitution of Mozambique and that of Lesotho have gained in terms of legitimacy while the Constitution of Zimbabwe has progressively lost its relative legitimacy as evidenced by many claims of constitutional change in that country. The Constitution of Namibia has also been struggling to maintain its legitimacy that has been suffering from the tendency of SWAPO, the former liberation movement, to behave as a state party and a source of legitimacy of power instead of the people. Even in South Africa, events post the ANC Polokwane Conference have proved that the legitimacy of Constitution is likely to suffer further with the ANC adopting the same attitude as the ZANU-PF and behaving as a party state, and democracy in South Africa transforming into a ‘partycracy’ where parties, in fact one party, the ANC and its partners, govern and not the people.

Nevertheless, South Africa can consider herself fortunate to have institutions such as an independent judiciary led by the Constitutional Court to ensure that some legitimacy is preserved.

However, consistent attacks on the independence and impartiality of the judiciary, whether these attacks emanate from the ruling party and its agents or from some members of the judiciary, are likely to affect the legitimacy of the South African Constitution. Popular discontent about floor-crossing that allowed the members of the National Assembly to change parties after having been elected on a ticket of a particular party and yet retain their seats in Parliament is also evidence that people do not identify themselves with some provisions of the Constitution. During the peer-review of South Africa under the APRM, the African Peer-Review (APR) Panel found that floor-crossing had adverse effects on the long-term development, vitality, vibrancy and sustainability of multiparty constitutional democracy in a post-apartheid South Africa and recommended that South Africa address these effects.¹²⁰

Despite this, except for Zimbabwe where the MDC has been demanding constitutional change, the overwhelming majority of the people still appear to be satisfied with the constitutions that therefore seem to be legitimate in Lesotho, Mozambique, Namibia, and South Africa. This is not because these constitutions are “home-grown”.

A constitution can be home-grown as a product of leaders who inherited from the past colonial or apartheid masters and do not feel they have relinquish power but still fail to command legitimacy. This is the case of the current ZANU-PF Constitution of Zimbabwe where the majority of the people no longer identify themselves with the Constitution that has over time become foreign to them or imposed on them by the ruling party. Inversely, the popular condemnation and outcry following coups d’Etat, attempted coups d’Etat, violations or attempts to violate the Constitution in Lesotho, Mozambique, Namibia and South Africa clearly demonstrates that the constitutions of these Southern African countries still remain legitimate although the legitimacy cannot be seen to be cast in stone. This is because the people have come to consider that the Constitution, which proclaims that the power belongs to the people who exercise it through referendum or elections, and which sets up the rules and principles governing the access and exercise of such power, is the main and even exclusive source of legitimacy.

Other sources of legitimacy claimed to be specific to Southern Africa, namely liberation struggle, and tradition and religion, only count when endorsed by the constitution or in line with its rules and principles. Only power acquired and exercised according to the constitution is legitimate and good governance as holistically understood in the current African context under the African Union, namely political, economic, social, and corporate governance is likely to consolidate the legitimacy of power.

****

The liberation struggle and traditions or religion were identified as sources of legitimacy of power in Southern Africa. As such, they continue to play an important role in legitimising power in Southern African countries although such influence varies from one country to another. The influence of the liberation struggle is particularly pronounced in countries such as Mozambique, Namibia, South Africa and Zimbabwe, where African leaders embarked on liberation movements against the colonial or the apartheid regime, as much as traditions continue to be important in these countries and even more in countries such as Lesotho and Swaziland that are traditional monarchies. However, traditions or religion, like the liberation struggle, remain informal sources of legitimacy that have lost much of their influence with the adoption of written and entrenched constitutions, which have been proclaimed supreme laws throughout Southern Africa.

Accordingly, the constitution - and not liberation struggle, tradition or religion – is the official and primary source of legitimacy of power across Southern Africa. The supremacy of the constitution

does not imply that the liberation struggle, traditions and religion no longer play any role, but only that they have been subject to it as the supreme law. In some cases, the liberation struggle and tradition as sources of legitimacy of power have been embedded or reconciled in the Constitution. The Constitutions of Namibia, Zimbabwe, and particularly that of Mozambique contain a number of provisions that relate to and enhance the liberation struggle as a source of legitimacy of

power, but a subsidiary one as compared to constitutional legitimacy. All Southern Africa countries, including Lesotho and South Africa, also recognise the role of traditions and customary law as a source of legitimacy through the institution of Houses and councils of Chiefs.

As times goes on and new generations of citizens are born while those of freedom fighters and war veterans go down in history, the libération struggle has been shrinking as a source of legitimacy of power and tends to become a remote source that hardly appeals to new generations that never zxperienced colonialism or apartheid.

The defeat of ZANU-PF at the March 2008 elections in Zimbabwe has been presented as a wake-up call to all others liberation movements still in power in Southern Africa and a reminder that people no longer take the liberation struggle seriously as a source of legitimacy of power. As compared to the liberation struggle, traditions or religion are likely to survive much longer as a source of legitimacy, especially at the local level of government, not only because traditions find it hard to

die, but also because of their constitutional recognition. However, the importance of the constitution as a source of legitimacy of power also depends on its wide acceptance by the people or on its own legitimacy. Leadership legitimacy in modern states mainly rests on the legitimacy of the constitutions.

An investigation into the constitutions of Southern African countries leads to the conclusion that despite being home-grown, the constitutions of a number of these countries are still confronted with the problem of legitimacy especially where constitutions have survived without constitutionalism.

Good governance in Southern Africa, understood in its holistic sense as political, economic, social and corporate governance under the Constitutive Act of the African Union and its New Partnership for Africa’s Development, requires the development and respect for constitutionalism, which entails limitation of powers, respect for the rule of law and promotion of human rights, not only individual and collective, but also civil, political, economic, social and cultural rights. Therefore, good governance and legitimacy are interrelated and mutually reinforcing. Good governance reinforces the legitimacy of power and legitimate leaders are likely to embark on good governance and such governance is favoured by the Constitution. As pointed out earlier, contrary to the earlier discourse on governance, good governance is necessarily democratic governance in the African context.

Despite the fact that their record may sound better than that of African countries in Eastern, Western and Central Africa, many Southern African countries are confronted with challenges related to governance. The peer-review of South Africa still acclaimed as the model or one of the few models of good governance in the sub-region has unfortunately led to the conclusion that much still needs to be achieved despite progress that has been made since the collapse of apartheid. Recent attacks on the independence of the judiciary established to enforce the Constitution allude to a threat to constitutional legitimacy.

In December 2007, the ANC held its conference on the campus of the University of Limpopo. Some resolutions adopted during the Polokwane Conference and decisions made by the new ANC leadership attracted adverse comments from many observers for whom South Africa had entered a new era of uncertainty, with gloomy prospects for democracy and constitutionalism. Hopefully, this Conference, which takes place on the same campus, will send a message reminding the people and the leaders of the sub-region that decades after the end of apartheid and colonialism in Southern Africa, the liberation struggle and traditions, in spite of being embedded therein, have been replaced by the Constitution as the main source of legitimacy of power. Such legitimacy will only be reinforced by good and democratic governance based on the promotion and respect for constitutionalism broadly understood as implying limitation of power, respect for the rule of law, and promotion and respect for all human rights.

Notes

¹ AU Constitutive Act (Adopted in Lomé, Togo, in July 2000 and brought into force in May 2001), Art 3 (g), (h), (k), (n).

²Idem. Article 4 (h), (l), (m), (n), (0), (p).

³Mbata Mangu, André. “The Changing Human Rights Landscape in Africa: Organisation of African Unity. African Union. New Partnership for Africa’s Development and the African Court”. Netherlands Quarterly of Human Rights. Vol 23 No3 2005380. p.389. Doc AHG/235 (XXXVIII, Annex I, paragraph 5).

⁴Hereinafter the DDPECG.

⁵Mbata Mangu, André. op. cit. p.380. p.388-389.

⁶DDECG, paragraph 13

⁷Mbata Mangu, André. op. cit. p.391

⁸It is quite unfortunate that Angola, Botswana, Malawi, Swaziland, and Zambia are not represented or to be discussed during the Conference, despite the fact that they also belong to Southern Africa. If Botswana is generally celebrated as one of the best cases of good governance and democracy in Africa, the country is confronted with a number of governance issues that need to be addressed. The same goes for Angola, Malawi and Zambia. Governance challenges are even much greater in Swaziland, a country which is struggling with the transformation from an authoritarian monarchy to a constitutional and democratic one.

⁹Hyden, G. “Governance and the Reconstruction of Political Order”. In Joseph, R. (ed). State, Conflict, and Democracy in Africap. Boulder & London: Lynne Rienner Publishers. 1999. p.184

¹⁰Idem

¹¹Boeninger, E. “Governance and Development: Issues of Governance”. Proceedings of the World Bank Annual Conference on Development Economics. Washington, DC: World Bank. 1992p. 24-38

¹²It advanced an integrated and holistic definition of governance taking into account its political, economic, social and cultural aspects

¹³Englebert, P. State Legitimacy and Development in Africa. Boulder & London: Lynne Rienner Publishers. 2000p. 4, pp.173

¹⁴Idem. 4, p.74.

¹⁵Idem. p.131, pp.176

¹⁶Holsti, Kalevi J. The State, War, and the State of War. Cambridge: Cambridge University Press. 1996p. p.97; Englebert. op. cit. p.7

¹⁷Englebert. op. cit. pp.8

¹⁸Holstip. op. cit. pp.97; Englebertp. op. cit. pp.8

¹⁹Conteh-Morgan, E. “The Crisis of Legitimacy, Representation, and State Hegemony”, in Kaiser, P.J. & Okumu, F. Wafula (eds) Democratic Transitions in East Africa. Ashgate. 2004p. p. 164

²⁰Idem. p.166

²¹Idem. p.165

²²Englebertp. op. cit. p.4

²³Blondel, Jp. World Leadersp. London & Los Angelesp. Califp.: Sagep. 1980; Brecher, Mp. Political Leadership in India. New York, Washington-London: Praeger. 1969-1968; Elgie, R., Political Leadership in Liberal Democracies, MacMillan Press 1995; Edinger, L. “Editor’s Introduction,” in Edinger, L. (ed). Political Leadership in Industrialized Societies. John Wiley & Sons, 1967; Sarason, Seymour B. Political Leadership and Educational Failure. San Francisco: Jossey-Bass Publishers. 1998

²⁴Le Vine, V. Political Leadership in Africa. The Hoover Institution Studies, Standford University. 1967; Cartwright, J. Political Leadership in Africa. Croom Helm Ltd. 1993

²⁵Blondel, J. Comparative Government: An Introduction. Prentice Hall & Harvester Wheatsheaf. 1995. p.301.

²⁶Blondel, J. Political Leadership. London: Sage Publications. 1987. p.3.

²⁷Elgie. op. cit. p.2.

²⁸Idem. p.3.

²⁹Blondel Political Leadership. op. cit. p.4; Elgie. op. cit. p.2.

³⁰Elcock, H. Political Leadership. Edward Elgard: Cheltenham. 2001. p.3; Cartwright. op. cit.p.19

³¹Blondel Political Leadership. op. cit. ix.

³²Tucker, R. Politics as Leadership. Columbia: University of Missouri Press. 1981. p.11.

³³Kellerman, B. “Leadership as a Political Act” in Kellerman, B. (ed). Leadership Multidisciplinary Perspectives. Englewood Cliffs, New Jersey: Prentice-Hall. 1984. p.70.

³⁴Edinger. op. cit. p.15.

³⁵Blondel Political Leadership. op. cit. ix.

³⁶Elcock. op. cit. pp.3-19; Blondel Political Leadership. op. cit. pp.1-9.

³⁷Blondel Political Leadership. op. cit. pp.4-5.

³⁸Hah, Chong-Do & Bartol, Frederick C. “Political Leadership as a Causative Phenomenon: Some Recent Analyses” in World Politics. Vol 36. No 1. 1983. pp.119-120.

³⁹Blondel World Leaders. op. cit. pp.11-15; Idem. Comparative Government. op. cit. p.290; Idem. Political Leadership. op. cit. p.5.

⁴⁰Blondel. Comparative Government. op. cit. p.290.

⁴¹Idem.

⁴²Cartwright. op. cit. pp.285-297.

⁴³Idem. p.19, p.21.

⁴⁴Blondel. Comparative Government. op. cit. p.290.

⁴⁵Blondel. Political Leadership. op. cit. ix.

⁴⁶Edinger, L. “A Preface to Studies in Political Leadership” in Gabriel Sheffer (ed). Innovative Leadership in International Politics. Albany: State University of New York Press. 1993. p.6; Elgie. op. cit. p.3, p.4; Kellerman. op. cit. p.71.

⁴⁷Elgie. op. cit. pp.9-12.

⁴⁸Blondel Political Leadership. op. cit. p.4.

⁴⁹Idem.

⁵⁰Huntington, S. The third wave: democratization in the late twentieth century. Norman: University of Oklahoma Press. 1991. p.316.

⁵¹Clapham, C. & Wiseman, J.A. “Conclusion: assessing the prospects for the consolidation of democracy in Africa” in Wiseman, J.A. (ed). Democracy and Political Change in Sub-Saharan Africa. London & New York: Routledge. 1995. p.166.

⁵²Wiseman, J.A. The New Struggle for Democracy in Africa. Avebury. 1996. p.165.

⁵³Kishna, S. “Constitutionalism, Democracy, and Political Culture in India” in Franklin, D.P. & Baun, M.J. (eds). Political Culture and Constitutionalism. A Comparative Approach. Armonk, New York, London: M.E. Sharpe. 1994. p.166.

⁵⁴Idem. pp.170-171.

⁵⁵ Wiseman, J.A. op. cit. p.186.

⁵⁶Blondel. Political Leadership. op. cit. pp.80-81; Idem. Comparative Government. op. cit. pp.300-301.

⁵⁷Cartwright. op. cit. pp.1-2, p.6.

⁵⁸Southall, R. & Melber, H. (eds). Legacies of Power. Leadership and Former Presidents in African Politics. Nordiska Afrikainstitutet and HSRC. 2006.

⁵⁹See Sect 1 of the Constitution of Lesotho that provides that Lesotho shall be a democratic kingdom; Art 1 (1) & (2) of the Constitution of Namibia; Arts 1 & 2 of the Constitution of the Republic of Mozambique.

⁶⁰See Chapter 3 of the Constitution of Namibia; Chapter 3 of the Constitution of Zimbabwe; Title III of the Constitution of the Republic of Mozambique ; Chapter 2 of the Constitution of Botswana (Amendment) Act No 18 of 1997.

⁶¹See Art 3 of the Constitution of the Republic of Mozambique; Art 1 (1) & (6) of the Constitution of the Republic of Namibia.

⁶²See Section 2 of the Constitution of Lesotho; Sect 3 of the Constitution of Zimbabwe; Art 1 (2) of the Constitution of Zambia; Sect 2 of the Constitution of South Africa; Art 2, 4 & 38 of the Constitution of the Republic of Mozambique; Art 1(6) of the Constitution of the Republic of Namibia.

⁶³See Sect 85 of the Constitution of Lesotho; Arts 291-296 of the Constitution of the Republic of Mozambique; Arts 131 & 132 of the Constitution of the Republic of Namibia; Sect 89 of the Constitution of Botswana Act of 1997.

⁶⁴Title 3 of the Constitution of the Republic of Mozambique; Chapter 2 of the Constitution of the Republic of South Africa ; Chapter 6 of the Constitution of Botswana Act (No 18) of 1997.

⁶⁵Constitution of the Republic of Mozambique, Preamble.

⁶⁶Art. 14.

⁶⁷Art. 15.

⁶⁸Art. 16

⁶⁹Art. 19 (1) & (2).

⁷⁰Constitution of the Republic of Mozambique, Art. 20 (1) & (2).

⁷¹Art. 297.

⁷²Art. 1.

⁷³Art. 2.

⁷⁴Art. 17.

⁷⁵Arts 168 & 169.

⁷⁶Constitution of the Republic of Namibia, Preamble, paragraph 4.

⁷⁷Idem. paragraph 5.

⁷⁸Idem. paragraph 6.

⁷⁹The Constitution of Namibia proclaims that “all power shall vest in the people” (Art 1(2)); the President is elected for five years by direct, universal and equal suffrage for not more than two terms (Arts 28 & 29). The members of the National Assembly (Arts 45-49) and those of the National Council (Arts 68-70) are also elected.

⁸⁰Namibian Constitution First Amendment Act. 1998. Government gazette. 24 December 1998.

⁸¹Idem. Sect. 1.

⁸²Constitution of Namibia, Art. 29 (3).

⁸³See Mbata Mangu, André. The Road to Constitutionalism and Democracy in Post-colonial Africa: The Case of the Democratic Republic of Congo. LLD Thesis, Pretoria: UNISA. 2002. p.194.

⁸⁴Quoted by Amissah, A. “Constitutionalism and Law in Africa”, in Ronen D (eds). Democracy and Pluralism in Africa. Boulder: Lynne Rienner Publishers. 1986. p.41.

⁸⁵See the Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act of 2004, which have clarified the role and functions and formalised the relationship between traditional leaders and the official governance structures in South Africa. Also see the Constitution of Botswana Act (No 18), 1997. Part 3 of this Constitution provides for the House of Chiefs (Sects 77-85).

⁸⁶APRM Country Review Report and the National Programme of Action of the Republic of South Africa. July 2007. paragraph 150.

⁸⁷Third Amendment to the Constitution Act of 1997 of the Lesotho Constitution of 1993. Lesotho Government Gazette Extraordinary. Vol. XXXVIII. No 35. Tuesday, 16 March 1993.

⁸⁸Constitution of Lesotho, Sect 1(1).

⁸⁹Constitution of Lesotho, Sect 2.

⁹⁰Idem. Sect 44.

⁹¹Idem. Sect 51, Schedule 1.

⁹²Idem. Sect 53.

⁹³Idem. Sects 45 & 46.

⁹⁴Idem. Sect 103, Schedule 2.

⁹⁵Idem. Sect 104, 45 & 46.

⁹⁶Idem. Sects 45 &46.

⁹⁷Idem. Sect 55.

⁹⁸Idem. Sect. 95

⁹⁹See Art. 2(4) of the Constitution of Mozambique, Art 1(6) of the Constitution of Namibia, Sect. 1 & 3 of the Constitution of the Republic of South Africa, Sect. 3 of the Constitution of Zimbabwe.

¹⁰⁰Constitution of Zimbabwe as amended at 1st February 2007, Consolidation (including Constitution of Zimbabwe Amendment Act (No 17). 2005).

¹⁰¹Idem. Chapter 12, Part 1.

¹⁰²Idem. Sect 111(1).

¹⁰³Idem. Sect 111(2).

¹⁰⁴Constitution of Zimbabwe, Sect 111(3).

¹⁰⁵Idem. Sect 34 (1) (c).

¹⁰⁶Idem. Sects 28 (2), 43 (1), 38, and 58.

¹⁰⁷Okoth-Ogendo, H.W.O. “Constitutions without Constitutionalism: Reflections on An African Political Paradox” in Shivji, I.G. (ed). State and Constitutionalism: An African Debate on Democracy. Harare: SAPES. 1991.

¹⁰⁸Shivji, I.G. “Contradictory Class Perspectives in the Debate on Democracy” in Shivji. op. cit. p.254.

¹⁰⁹Rosenfeld, M. “Modern Constitutionalism as Interplay between Identity and Diversity” in Rosenfled, M. (ed). Constitutionalism, Identity, Difference, and Legitimacy. Theoretical Perspectives. Durham & London: Duke University Press. 1994. p.3.

¹¹⁰Andrews, W.G. Constitutions and Constitutionalism. New Jersey, Princeton: D. Van Nostrand Company. 1968. p. 23.

¹¹¹Mojekwu, C.C. “Nigerian Constitutionalism” in Pennock, J.R. & Chapman, J.W. (eds). Constitutionalism. New York: New York University Press. 1979. p.164.

¹¹²Mbata Mangu, André. The Road to Constitutionalism and Democracy in Post-colonial Africa: The case of the Democratic Republic of Congo. LLD Thesis, Pretoria: University of South Africa. 2002. pp.168-171.

¹¹³Nwabueze, B.O. Constitutionalism in the Emergent States. London: C.Hurt & CO. 1973. p.2.

¹¹⁴Mbata Mangu, André. op. cit. pp.168-170.

¹¹⁵Nwabueze. op. cit. pp.24-25.

¹¹⁶Idem. p.25.

¹¹⁷Idem. p.27.

¹¹⁸Ihonvbere, J.O. Towards a New Constitutionalism in Africa. London: CDD Occasional papers Series No 4. 2000. p.10, p.15.

¹¹⁹The Constitution of Zimbabwe was published as a Schedule to the Zimbabwe Constitution Order 1979 (S.I. 1979/1600 of the United Kingdom).

¹²⁰APRM. Country Review Report and the National Programme of Action of the Republic of South Africa. op. cit. paragraphs 135-136, 152.