Constitution-Building in Africa

Abstract

Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.

Changing the Rules: Institutions, Party Systems, and the Frequency of Constitutional Amendments in Africa

“…Africa is an excellent setting in which to examine constitutional amendment frequency. Fombad (2014: 430) observes that there have been “three generations of constitution-building” in Africa which include “the colonial ‘constitutions,’ the postcolonial or post-independence constitutions and the post-1990 constitutions.” Most African countries now have new constitutions or have made significant changes to their pre-1990 constitutions (Fombad, 2014: 438).…”

“…The Senate was also reestablished; 65 of the 100 Senators were to be appointed by the president (Kuenzi, 2011). Fatima Diallo's (2013) paper notes that the 2001 Senegalese constitution was amended over fifteen times during Wade's tenure in office, mostly in ways intended to allow Wade to maintain power and transfer that power to his son, Karim Wade (cited in Fombad, 2014: 444).…”

“…Hessebon (2014: 188) sees the desire to correct the shortcomings associated with the previous round of constitutional reforms as driving recent constitutional change. In contrast, Fombad (2014: 447) contends that “The frequency with which most African post-1990 constitutions are being revised not only erodes their legitimacy but also impacts negatively on their implementation and is the main cause of constitutional fragility.” Fombad (2014) observes that most constitutional reforms, even in more democratic countries, are intended to bolster those in power. By example, Fombad (2014: 442) notes that amendments to the South African Constitution established controversial floor crossing rules likely to hurt small opposition parties but leave the African National Congress (ANC) unscathed.…”

“…Furthermore, examining constitutional amendment frequency in Africa is important in its own right. 1 Fombad (2014) argued that increased frequency of amendments undermines constitutional legitimacy. Therefore, expanding our empirical understanding of the factors that contribute to or constrain amendment frequency is an inherently important undertaking.…”