What Options for Ensuring Effective Constitutions? The Experience of West Africa¹

 

By Assane Mbaye

Alliance to Refound Governance in Africa

Striding forwards and surging back

The ‘90s were marked by a frenzy of constitutional activity in West Africa, coinciding with the fulfilment of certain democratic demands aimed at promoting political pluralism, improving the safeguarding of rights and freedoms, and achieving a better balance of power in countries’ institutional structures. The constitution, supposedly reflecting the political settlements of the time, seemed on the whole to embody the hopes cherished during decades of struggle against totalitarian regimes, dictatorships and restrictions, and violations of individual and collective freedoms. It was as if by simply affirming the supremacy of the constitution one could guarantee that most countries’ recently inaugurated democratic systems, together with the values they conveyed, would stay the course. The faith placed in constitutions adopted during this period is justifiable on two counts, at least. Firstly, the conditions in which they were drawn up mark a profound break with the constitutional past of most of the states. These constitutions were, for the first time, the result of wide-scale national consultations, which took place within the framework of “national conferences”. This drafting and adoption procedure led to the legitimate belief that the constitution really was a collective effort, involving all segments of the nation, and that the settlements formalised within it were therefore inviolable– thus supposedly ensuring their longevity and protection from individual interests. Secondly and more basically, constitutions drawn up during this period were, in the main, strikingly circumspect, holding themselves up as true instruments for limiting power and submitting it to a superior standard. The excesses of the period prior to this play a part in this tendency. An implicit part of any progress towards democracy constituted, for the creators of these constitutions, the holding in check of presidentialist systems of government by promoting a twoheaded executive, the strengthening of the legislature, and judicial controls, which would deal more rigorously with potential threats to the supremacy of the constitutional norm and to rights and freedoms.

In the last few years however, the euphoria of the democratic triumphs and the accompanying boom in constitutionalism has given way to a more mitigated reality, a sort of surge backwards, which in turn has provoked bafflement, and a challenging of the democratic and institutional systems now judged ineffective, due to their failure on the whole to deliver the expected results. These systems have become unstable and are, paradoxically, doing more to stoke up crises and conflicts – occasionally violent in nature – than they are to regulate them. This surge backwards can be measured against the yardstick of the two tendencies mentioned above. On the one hand, presidentialist systems of government have scarcely been affected, with some even permitting themselves the ‘luxury’ of becoming de facto monarchies; procedures for devolving power are still in serious dispute, resulting in an ongoing loss of credibility; parliaments are still weak and the judicial control over political power is not always satisfactory. What is worse: there is a growing trend towards a re-examination of some of the most symbolic settlements reached during the ‘90s and the national conferences², one obvious example being changes to the length and number of the president’s terms of office. One is therefore left with the impression that these constitutions are not fulfilling their role as an effective limit on power. On the other hand and from a procedural point of view, constitutional revisions have become commonplace and are characterised by their unilateral nature and a general lack of what had previously been the trademark of the national onference, namely, consensus. The principle of parallélisme des formes, whereby legal acts may only, in general, be modified or ‘repealed’ by following the procedure used for their adoption, goes unrespected – and for good reason. Changes are imposed by the governing party and generally affect the ways in which power is organised and conceived, rather than increasing and strengthening democratic and constitutional mechanisms, or fostering new rights for citizens.

A study of this general evolution gives rise to two contradictory approaches. The first, maybe more extreme approach, consists in viewing the current constitutional crises as nothing more than the expression

of a great surge backwards with regard to the advances made in the ‘90s. The second approach is more subtle and, whilst it does not deny the existence of the current crises, sees within them the manifestation of constitutional systems, which are undergoing massive changes or maybe even reaching maturity; the prelude to changes heralding a greater stability. Each of these approaches deserves to be put to the test as – general trends aside, – one must not lose sight of the fact that each nation’s experience retains a degree of specificity, and that some nations are evolving in a positive direction, albeit in fits and starts. Whatever the approach, however, it remains undeniable that a crisis in constitutionalism is brewing, marked by a palpable eroding of constitutional principles and the mechanisms that underwrite them, and that the underlying causes of this erosion needs to be identified before any path towards a solution can be proposed.

A three-way crisis

Crisis in representative democracy

The temptation to establish a link between constitutionalism and democracy is impossible to resist. In West Africa, advances in democracy were clearly contemporaneous with the expansion of constitutionalism, the latter deriving sustenance from the progress of the former and translating this formally into its content. Conversely, it is evident that democratic retreats affect constitutionalism and weaken faith in the superiority of the constitutional norm, and in its function of creating a durable structure for the political system and acting as a limit on power. If this link exists, albeit indirectly, it should be no great surprise that the crisis in constitutional models is one aspect of the crisis in the democratic model and, more specifically, in representative democracy. The latter is formal and procedural in essence, and somewhat drained of substance (government of the people by the people, although through the intermediary of representatives). This may be noted from three perspectives, as regards the constitution.

Firstly, the crisis in democracy affects original constituent power in that – aside from the period of national conferences – the procedures enabling the people to become involved in drawing up constitutions are grossly distorted. Very often, the contents of a constitution are debated within a restricted and generally technocratic circle. Popular support only intervenes at the adoption by referendum phase, in which it is more a case of calling citizens to give their verdict on an ‘off the peg’ solution, than asking them to make an informed choice as to which changes they want, based on an understanding of the issues involved. Furthermore, as they are called to vote at the very moment of a constitution’s adoption, citizens are systematically excluded from the consultation process if the constitution is to be revised, no matter how significant the amendment.

Secondly, the crisis affects derived constituent power. This crisis, one of national representation in itself, and particularly of parliaments, expresses perfectly the way in which representative democracy can influence constitutionalism. Majority politics (le fait majoritaire) and the political tactics they give rise to, as well as over-inflated presidential powers, serve to weaken constitutional principles and guarantees. For proof of this point, one need only observe the ease with which constitutional amendments of questionable legitimacy are adopted by parliament through the sole will of the party in power and its personification.

Finally, representative democracy is exercised through the choice of leaders and this choice is primarily the result of an election. However elections, or at least the conditions under which they are held, are purveyors of instability, both political and constitutional. They sometimes lead to constitutional reforms, which are linked to the economic climate of the time and only act as short-term, non-enduring solutions to profound political problems.

Crisis in constitutional justice

Constitutionalism is able to develop when the mechanisms guaranteeing the superiority of the constitutional norm are functioning. The state of constitutional law is a key indicator of a constitution’s influence. From this point of view, undeniable progress has been made in West Africa. Various states have formally inaugurated monitoring bodies, defined the scope of their jurisdiction, and accorded them a certain text-based statutory independence. Although certain national courts such as the constitutional court of Benin enjoy a eputation of independence, judicial power in general, and constitutional courts in particular constitute a weak link, for various reasons.

The first reason lays with judges themselves and the way in which they perceive and carry out their brief. The moment they incline towards prescribing themselves limits, interpreting their jurisdiction in a literal and restrictive sense, and making quasi systematical pronouncement on issues of formal regularity, rather than substance-based judgements, they give the impression that they are not the appropriate resort against attacks upon the constitution and above all, that they are not fostering the debate, which is needed to enrich the constitution through interpretation.

The second reason is linked to the position of judges within the framework of constitutional litigation, a position of some complexity, given that they are rather more required, in quantitative terms, to arbitrate in political disputes, than they are to pass judgement on subjective rights accorded to citizens by the constitution. Their decisions are therefore challenged as a matter of course, whatever their implications, sometimes for political purposes and above all when they favour the dominant political party more often than not. The position of judges is rendered all the more complex because their decisions are likely to be analysed from the point of view of legitimacy. Indeed, when they are required to pass judgement on acts adopted by bodies stemming from popular suffrage, they run the risk of being accused of tending towards a ‘government of judges’, and of flying in the face of the will of the people, as expressed by the decisions of their elected representatives.

Finally, the crisis in constitutional justice is partly linked to the conditions of submissions to the court. Generally, the right to refer a case to the constitutional judge is restricted, and is not accorded to citizens. Even when this right is opened up and extended, the constitutional courts’ output is feeble, due to the small number of cases referred to the court – which is itself explicable by taking into account citizens’ attitudes to the law, their preference for non-litigious modes of resolution, and, sometimes, their negative impression as to the independence and impartiality of judges.

Crisis of legitimacy with regard to the constitutional norm?

The debate on the crisis of constitutionalism in Africa should be re-framed within a broader context, which matches the constitutional norm to the societies it is supposed to regulate. This is a question of general legal interest, which, more directly stated, examines the issue of the legitimacy of the constitution as an institution. One may well wonder whether a re-examination of the principle consensus of the ‘90s, plus the ineffectiveness of political and civil opposition to unilateral amendments, are not fundamentally linked to this perception of the constitution as an element alien to society. It is a fact that, upon achieving independence, most African states sought to bolster their extremely fragile status by unifying their legal systems – the law being regarded to a certain extent as one of the key elements in the construction of stable nation-states. These legal systems have two major distinctive tendencies. Firstly, they are generally monistic, in the sense that only the law of the state, known as “modern” law, is recognised as the source of legal norms. Most countries achieved this ranged from the worst-case scenario of abolishing all customary practices to the bestcase scenario of integrating certain customary norms and institutions into the official law, with the state remaining in all instances the unique source of that law. Secondly, these so-called modern laws were characteristically constructed by importing the legal systems and norms of the countries’ former colonisers. This grafting on of a new system, born out of imicry, also carried through to constitutional matters.

Many observers question the effectiveness of this graft however, and speculate as to its consequences upon the superiority attributed to the constitutional norm by positive law. 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? In other words, could it be that, under the guise of the principle of universality, these states have imported not only values unsuited to African societies into their constitutions, but also subsequent procedures for legitimising power which have no connection with their historical, social, and cultural substratum?

And if the values extolled by these constitutions are in effect the hallmark of a graft which hasn’t taken, this would explain not only why constitutions are too frequently and knowingly violated by those whose power they are limiting, but also why they are not defended by society itself and by its citizens in particular. If they do not defend these constitutions and their values is this not because they do not feel any great sense of guardianship towards them? The ‘natural’ and ‘spontaneous’ duty to obey the constitutional norm and to recognise its ‘transcendental’ superiority does not perhaps depend exclusively upon technical and procedural mechanisms, which guarantee its respect; there should maybe exist a healthy dose of myths, of constitutional mystique, of moral and ethical representations, forming a bedrock for an act which institutes – indeed constitutes – a state. The search for these ‘founding myths’ would thus be an essential, even existential issue for states whose common foundations are being eroded in favour of divisions by partisanship, ethnicity, tribe, brotherhood or religion. Secondly, any dispute as to the legitimacy of values equally calls into question the legitimacy of the technical and formal procedures for adopting and revising constitutions. This has already been touched upon above from the point of view of the crisis in representative democracy, and can now be re-examined using the crisis of the constitutional norm itself as a frame of reference. In the same way that the legitimization of leaders through elections arouses questioning, procedures for expanding, adopting, and revising constitutions affect their legitimacy. The wide array of drafting techniques is appealing, but the results they achieve are less impressive. One is certainly therefore entitled to pose questions regarding new methods for elaborating constitutions, in particular. The participation of ‘everybody’ in the definition and amendment of the rules for living together constitutes an essential guarantee of the adequacy of the values they disseminate and of their collective defence. Specifically, should there not be preliminary stages of consultation, in which citizens and the wider community can participate before any constituent assembly is held? Could not such consultations do more than simply collect basic opinions on a ready-made project and instead be the point at which a project is put together collectively, thus giving real meaning to the notion of original constitution-making (constituant originaire)? What new procedures could be formulated to ensure that every constitution truly belongs – both fundamentally (in terms of its leanings) and structurally – to the society adopting it?

In sum, the way in which one approaches the question of the legitimacy of constitutional values and systems, and the answers one supplies (over and above requirements linked to the structuring of power and the strengthening of constitutional justice), seem to us to be decisive factors in ensuring that the current changes undergo a more managed evolution as regards political and social progress. There are several avenues worth exploring from this point of view.

Several avenues of reflection

Key issues and challenges

The expansion of constitutionalism depends more or less entirely upon the re-legitimization of the constitution, which presupposes that the aforementioned three-way crisis is resolved. The most daunting challenge remains that of collectively identifying those shared values, necessary for constituting the bedrock of any credible constitution. The problem lies in having to reconcile the specific elements of each particular society with what are understood to be universal principles. Now, if it is possible to clearly identify these universal principles, the same cannot be said with regard to what is considered specific, as references to traditional or custom-based values tend to be implicit rather than explicit, and these values are equally subject to social change and should not be idealized in any way. The difficulty of the task, however, should not dissuade us from carrying it out, and inter-disciplinary research plays a key role from this point of view, in that it can allow us to suggest where the right balance for preserving social stability may lie. It gives us an understanding of the people, the societies, and their underlying workings – all necessary to ensure that constitutions represent the formalisation of values regarded as fundamental (for example: what is the dividing line between systems based around the individual and societies which remain attached to the community as a place for identification and definition of social status? How can the principle of equality be reconciled with differing levels of social status? Etc…).

Furthermore, one cannot re-establish the credibility of the constitution without indirectly providing a concrete demonstration that it is genuinely fit for purpose, that purpose being the appropriate limitation of power, and the constitution of an effective civic bastion against injustice and arbitrariness. The challenge, as regards the developments taking shape, is basically that of reintroducing consensus into constitutional procedures, particularly regarding any amendments to previously- won settlements, and of making available to citizens individual and collective rights, which are efficiently guaranteed and effectively safeguarded.

This last issue is not unconnected to the challenges relating to constitutional law, namely the affirmation of an increased sphere of influence for judges on public life, the strengthening of their credibility through their nomination procedure and he exercise of their brief, and the guaranteeing of their independence, particularly with regard to political power.

Proposals, which came out of the Lomé workshop

Due to its exceptionally political nature, the constitution cannot completely avoid political incidents and power struggles, or ‘temperature’ fluctuations within the political and democratic systems. That doesn’t mean that one should not boost its societal and collective aspects and attempt to re-establish confidence in the representative system and in constitutional justice.

The alternatives lie both in fundamental options and in technically re-framing the democratic vision. There are several promising proposals, worthy of being developed further. As regards the issue of bringing constitutions in line with social diversity: admitting even a limited form of legal pluralism and extending this on an institutional basis seems an intriguing jumping off point. Two proposals deserve to be outlined briefly in this respect:

• the establishment of a permanent (derived) constituent authority, representing a fourth branch of the State, guarantor of the sacred status of the constitution, and of the appropriateness and relevance of all amendments and contributions from various recognised stakeholders, by its very structure;

• the reform or the establishment of a second parliamentary chamber, which both reflects social diversity, whilst excluding political parties, and has legislative power. As regards the issue of preserving the consensual nature of constitutions and ensuring that all power-limiting checks and balances remain in place, it might be worth considering:

• an improved system for revising constitutions with a specific ban on any political actors introducing revisions, which concern the constitutional codification of their own status and entitlements;

• a better procedure for ratifying revisions by requiring prior national consultations and inclusive – rather than exclusively political – processes, by abolishing parliamentary revisions, or even by insisting that revision procedures are permanently recorded and relate to an assessment of the constitutional text as a whole, so as to avoid short-termist revisions, drawn up in haste and exclusively seeking to exploit the constitution for partisan and purely political gains;

• the internationalisation of constitutional guarantees by establishing convergence norms for constitutions at a regional level (ECOWAS, for example) and setting up effective mechanisms for penalising constitutional violations.

The last set of proposals regards constitutional justice and touches upon:

• boosting its independence by amending the procedures for appointing constitutional judges (in particular, either by requiring non-elected bodies to participate in their nomination, or – taking the more vigorous line of a strict separation of powers – by withdrawing the nominative power from the executive and legislature and even giving it to a constituent authority);

• amending the composition of constitutional courts and opening them up to non-lawyers, because of the implications of the subjects on which they rule, and because they do not only deal with purely legal considerations;

• amending the conditions for submissions to constitutional courts, particularly by making the right to take legal action generally available to citizens;

• extending the category of acts subject to constitutional control to include infra-legislative acts and establishing a general principle of competence for constitutional judges as interpreters of the constitution, if an act upon which they are adjudicating could have any effect on the interpretation of or the implementation of the constitution;

• creating a supranational system of constitutional justice, a judicial resort against certain decisions by national courts which affect the convergence norms of constitutions, as defined at a regional level.

Notes

¹ This text re-examines the main conclusions of a workshop entitled “Africa in search of innovative constitutional alternatives”, organised by the Alliance to Refound Governance in Africa, at Lomé on May 28 – 30, 2008.

²This re-examination is also to be observed in countries, such as Senegal, which never held any of these great constitutional gatherings.