The constitution is expected to regulate political life in all its intricacies and aims; governing and governed, loyalty and opposition, individual and institution. However, establishing the basic law of the state in societies that have passed through difficult phases of their history (colonialism, fragmentation, tyranny, corruption, impoverishment…) is not an easy task, due to various internal interests and external balances.
The constitution should reflect the values and ideals of society, drawing inspiration from a unifying reference that aligns spontaneously with the rhythm of life in its complex aspects. Its natural impact should emerge in connecting and coordinating state institutions effectively, achieving the higher interests of the people (national unity, social cohesion, development, renaissance, citizen dignity, and decent living). It should also clarify the form of the political system, the distribution of power, and the relationship between the citizen, the state, and its institutions. A crucial observation is that secularism remains a fundamental constitutional principle, as confirmed by various formulations, serving as an intellectual and philosophical reference for the modern African state.
The State in Africa: Challenges of Origin
The state is regarded as the largest contemporary political institution; however, its birth in Africa was marred by the remnants of the colonial era and international circumstances before independence, including two world wars and the ensuing Cold War, along with the challenges of fragmentation and division stemming from the principle of non-alteration of colonial borders. Most governing systems on the continent are republics, compared to a few federal systems, as noted in the preambles of constitutions. The efforts to build states and solidify unity within diversity remain a complex task, though national awareness is gaining ground amid promising African experiences.
At the forefront of state institutions are the presidency, parliament, government, constitutional council, and economic, social, and environmental councils; ensuring their balance, stability, and responsiveness to community needs. Managing these units requires costly financial expenditures from the state treasury, self-sufficiency, and a well-trained human element.
For institutions to persist through the political time frame, the president vows upon taking the constitutional oath to protect the constitutional document and ensure the proper functioning of the institutions. The head of state possesses exceptional powers when the regular operation of public services is threatened.
It can be stated directly that the institutional framework of African political life is purely European; it is a product of the colonial state and is not rooted in the African socio-political heritage. This gap has proven difficult to bridge, which necessitates recalling the civilizational heritage in the management of public affairs.
Institutions may increase or be abolished within the constitutional framework according to the orientations of the existing political system and international interactions. For instance, the Senegalese Senate was removed from the bicameral system twice, the most recent in 2012, while the High Council of Local Communities was added in 2016 via constitutional referendum. However, the current government has promised its abolition, and the bill proposal was presented to the legislative body, but the hopes of the new leadership have not materialized, indicating a dynamic and fluid nature of state facilities.
Institutions proliferate based on necessity; they serve the people in specific areas (legislation, monitoring government work, addressing needs in security, health, education, adjudication of disputes, etc.); the goal of these bodies is to provide public services and realize the people’s interests, meaning conducting activities for the benefit of the people. All institutions converge at this point, starting from the president of the country to others in the administrative hierarchy.
Literature indicates that the executive authority has remained the core of political systems, causing significant damage to emerging democracies. The constitutional mechanisms and legislative provisions have not succeeded in curbing successive governments from exerting influence and dominance over the continental political landscape, thus revealing the institutions’ fragility, their weak impact, and limited horizons.
One way to limit government influence is to reduce the powers of leadership, particularly that of the president, and control state resources through oversight bodies that expose violations and corruption. This is a means of curbing the executive’s claws and limiting its hegemony over its counterparts while moving towards entrenching good governance. Furthermore, matters of budgeting and legislation fall under parliamentary competence, enabling popular representation to perform its role free from political influences and narrow interests, ensuring judicial independence.
Some of the obstacles hindering constitutional development include:
- The security situation in the continent and its ramifications on constitutional institutions and citizens’ lives, where the constitutional path diverged early in the history of contemporary African political systems due to the security crisis that shook the state’s foundations, leading to the downfall of leaderships. This destabilized the bonds between the top and the base and fragmented the political life entirely, especially following independence due to coups, civil wars, armed insurrections, demands for secession, suppression and besiegement of the opposition, and weak popular participation; this has rendered the constitution incapable of regulating public affairs according to the demands of the social contract.
- The nature of the constitution itself, which produces barriers that prevent citizens from grasping its provisions; these include technical language and the complexity of drafting legal texts, the elitism of specialization, and the delay in legal studies to the university stage.
- The high illiteracy rate affecting a quarter of the continent’s youth.
It is worth mentioning that the African constitutional movement has not been unable to innovate solutions for the political and social challenges being faced, as evidenced by the lessons learned from governance practices over the centuries across various domains.
Finally, the problem can be framed as follows:
What is the role of the constitution in the African political system? And what is its relation to political institutions?
We will rely on the constitutional approach in this paper by briefly examining the fundamental laws as needed, while considering the power struggle in accordance with the legislative framework or despite it.
The Constitution in the African Political System
The basic law declares that sovereignty belongs to the people as the source of authority, exercised within the framework of law and through the respect of the powers of each body under representative democracy. The modern African state began to take shape with its incoming institutions post-World War II, during which the constitution regulated how to access the reins of power and make decisions. The prominent characteristic of political life after independence was the monopoly of the single party over all state activities, disregarding national consensus to the extent that there was often a blurring between “the party and the state,” leading to the personalization of power alongside a party network surrounding every event from the capital to the farthest village on the border, where the only legitimacy was that of the ruling party.
The restriction of political parties and diminishing their roles has preoccupied the ruling systems, in addition to depriving them of funding and media visibility. Historically, party activity has been centered on a single party for nearly half of political life after independence before recognizing multipartyism, and only in a few instances. This has had a direct impact on the management of power and its redistribution among community components, the method of governance, and stability and balances. The greatest condemnation of that period is the criminalization of this practice and the classification of establishing a single party as a high treason, as enshrined in Article Two of the 2006 Constitution of the Democratic Republic of the Congo.
Party monopoly paved the way for power struggles both internally and externally, postponing the democratic transition and peaceful alternation of power, resulting in a significant portion of the populace becoming disillusioned with politics amid worsening economic and social conditions domestically and the impositions of international financial institutions externally.
The constitution delineates the powers and duties of each institution separately, yet the implementation of these provisions remains an ongoing challenge, such as applying the principle of separation of powers, transparency, accountability, equal opportunities, and equality before the law. Issues like adhering to presidential term limits have not been conclusively resolved on the continent, with some leaders aspiring for more than two presidential terms, sometimes resorting to constitutional amendments to strengthen their position either through text or implication (Rwanda, Togo…). This means that despite the importance of the constitutional text, it is necessary to establish legal practices that evolve over time into prevalent norms in African societies that should not be bypassed.
The continent has experienced successive coups and violent power takeovers in the early decades following independence, rendering the normal functioning of state and its institutions within a legal constitutional movement virtually impossible. The actual ruler has been the president/executive authority; in other words, every coup marks a regression in constitutional and political life. The success of coup leaders necessitates the suspension of the constitution and the halt of the functioning of institutions, reliance on a state of emergency law, and elevating its leaders to initiate a rule outside the law under the leadership of a national salvation council.
Although some constitutions have since stipulated the institutionalization of opposition as an inherent part of political practice, governments have continually repressed opponents through various means, leaving them with the clear message: there is no room for you among us. This has led to a weak political representation of the political partner in state institutions due to the absence of conducive atmospheres, resulting in an imbalanced and unstable political life reflected in the disparity between government representation and opposition weight, sometimes provoking and exacerbating acute crises.
At times, constitutional interpretation can act as an obstacle to political development due to the existing regime’s desire to maintain power or obtain advantages. For instance, constitutional courts have never ruled that the president was in a state of incapacity requiring the vacancy of his position under valid grounds (illness, old age, absence), even though this is a constitutional procedure. An example can be illustrated by the situations of Nigeria’s President Umar Musa Yar’Adua and Gabon’s Ali Bongo, as well as the long absence of the Cameroonian leader, regarding whom Yaoundé’s apparatus recently linked the issue of his health to national security, following an official ban on discussions about his health.
The role of the “new constitution” is still awaited to rebuild the modern African state and meet the requirements for change and reform, including the new legal arsenal under the African Union that rejects all forms of encroachment on the constitutional order and paves the way for the democratic process.
There is a well-known tendency within the African Union regarding condemnation and denunciation of coup states, leading to the suspension of their membership, which is similarly followed by its affiliated bodies. This is the same course pursued by sub-regional organizations such as the Economic Community of West African States and the Economic Community of Central African States.
The African State and Political Institutions
It is inconceivable to separate principle from practice, as evident from the duality of the constitution and institutions; they merely express the values and ideals in their daily applications, allowing for evaluation, adjustment, and development by focusing on the details and aspects of governmental bodies, both weak and strong.
The integrity of institutional performance (maintaining public order, administrative management, accountability, combating corruption…) is one of the reasons for the stability and advancement of political life. Furthermore, democratic transformation can only be achieved through strong and effective participation from the political and administrative units of the state.
Institutions must embody openness to citizens, various political factions, and all segments of the population without discrimination, meaning that the regulatory body should not transform into a closed lobby serving specific interests, but should pursue the higher interest in carrying out its duties. This means that a parliamentarian should represent the nation and act as a deputy on behalf of the people, not just the party to which they belong, contrary to what is seen in some parliaments. Furthermore, employees of any governmental sector should serve the citizen and the civil justice system to deliver justice. This promotes political life and the African democratic experience.
State institutions are expected to undertake monumental efforts titled “guaranteeing the distribution of power and wealth among the people of one nation,” by appointing competent individuals and ensuring equal opportunities for all, ensuring that criminals do not evade punishment/accountability and reconsidering government spending that prioritizes developmental projects and their requirements over security, debt servicing burdens, and rampant corruption.
After independence, African states sought structures and mechanisms to express their orientations and implement policies, aiming to achieve the ideals and higher values of the people that organize their existence and philosophy of life. However, various internal and external obstacles have hindered reaching these desired objectives, including civil wars, coups, the influence of traditional colonial powers on decision-making, the Cold War, and structural adjustment policies.
Among the obstacles facing institutional work in the modern African state more broadly, is that the incoming structures did not emerge naturally or crystallize during the fragmented constitutional time, but rather the state found itself in an unprepared environment, starting with issues threatening territorial unity and social cohesion, and perhaps even insurrections and demands for separation.
When discussing institutions, it is expected that they yield a tangible impact in terms of performance, effectiveness, and vitality, leading to reform and change, and establishing a strong, cohesive state capable of addressing its concerns and confronting internal and external challenges—truly reflecting the political will and state directions and the spirit of the people across different historical contexts.
Institutions are the bodies through which the aspirations of the people manifest, serving as mechanisms to express constitutional principles, make decisions, and exert influence through the available authority, including governing bodies and advisory ones. There are reciprocal powers between them that assist in achieving relative institutional balance and stability. If the government has the right, for example, to dissolve parliament, then parliament has the authority to withdraw confidence from the government. If the president can appoint members of the constitutional council, he cannot dismiss them. If parliament has legislative powers, then the judicial body has the right to review the constitutionality of the laws.
Transitioning from symbolic to genuine institutions can only occur through the active role of various elites—religious, economic, and social—in reforming African civil society at various levels, which ultimately imposes the state’s credibility.
The Parliamentary Institution
The parliamentary institution is an organizational structure and political unit tasked with achieving specific goals, making it open to any reference. Alongside organizational procedures for its formation from two chambers (Ivory Coast, Nigeria) or one (Senegal, Botswana), and its meeting sessions and the number of deputies, its essential functions primarily include legislation, oversight, and evaluating government work, while its legislative competence is confined to specific areas.
Historically, the ruling party dominated the representatives of the people before the alternation era, and very rarely was the opposite found and it did not last long, which had direct implications on parliament and its relationship with the executive authority. However, reality today has proven that victory in legislative elections comes through state coalitions that revolve around the ruling party.
The mechanisms of the African parliament have not undergone significant changes (legislation, voting on the budget law, withdrawing confidence from the government, approving international treaties and agreements, declaring war, for instance), with the recent transition of Togo from a presidential system to a parliamentary one seen as a circumvention of the people’s will. What remains constant in this scenario is the continued presidency of Faure Gnassingbé in both systems, and it is anticipated that the parliamentary institution will play a larger role in regional integration and peaceful coexistence through parallel diplomacy in the era of globalization and networking.
The shortcomings that have afflicted parliamentary work include:
- A decline in parliamentary conduct among some deputies.
- A lack of focus on sensitive issues that concern the nation and citizens through investigative committees or other oversight means.
- A weakening relationship between deputies and their electoral constituencies after entering parliament.
Historically, parliaments played a supplementary role to the executive branch legislatively, justifying their support for government public policies regardless of their objectives. Some deputies openly declared their allegiance to the ruling regime rather than the people, despite representing the people instead of the government. Thus, the path was clear for all forms of legislative, financial, and political oppression. In general, the weakness of parliament against the executive is a widespread phenomenon, and it is no secret that the awareness of the people and the dissemination of information bolster oversight power and limit corruption, even if slightly.
The Executive Authority
The government oversees the design and implementation of state policies (health, education, judiciary, agriculture, transportation, security…), and is deemed to have complete administrative control. There has been a noticeable disregard for the constitution by successive governments, primarily during what is known as the “founding generation” of presidents. During their tenure, it was commonplace for power to be concentrated in the hands of the ruler, with an emphasis on unilateral decision-making regarding both internal and external matters.
African constitutional demands have risen at every turn, calling for a reduction of the president’s powers, who has formed the core of the political landscape. Furthermore, the non-implementation of the principle of separation of powers has led the executive authority to succumb to corruption and proliferate in all its forms, becoming a pervasive cancer.
It is noteworthy that the presidential term is typically restricted to an average of five years, with the president’s terms increasing gradually (Nigeria, the Democratic Republic of the Congo, Kenya…), and there’s no doubt that these constitutional practices might rationalize political activities in the medium term, with popular pressure for reforming the political system as a whole, increasingly evident in continental struggles to entrench democracy alongside transnational civil movements sometimes acting as strict oversight in certain sensitive cases.
The removal of the Kenyan deputy president from office by a ruling of the constitutional court last October marked a first under the 2010 constitution, following parliamentary votes to oust him by more than two-thirds of its members and appointing the interior minister in his place. Article 150 stipulated conditions for dismissing the deputy president, among them “committing grave violations of any text in this constitution or any other law.” Notably, such a decision was not followed by internal unrest but by widespread agreement from national representatives, indicating the people’s acceptance of legal proceedings over others.
The Judicial Authority
The judicial authority comprises various judicial bodies and courts of varying levels, including the constitutional council, supreme court, and financial court, along with lower and intermediate courts. The supreme courts— as in Nigeria—are positioned at the top of the judicial hierarchy, and their rulings are final, operating through tiers each composed of three judges, led by the most senior among them, to consider appeals against lower court rulings, and decisions are taken by majority.
“The judiciary is the guardian of the rights and freedoms enshrined in the constitution and law,” as stated in legislative documents, such as Article 91 of the Senegalese constitution 2016. It bears the responsibility of safeguarding the state of citizenship—a nation that encompasses all.
However, the restriction on citizens’ freedom, especially near election seasons, through the banning of demonstrations, sit-ins, and assembly, has become prevalent, and at times there is a violation of civil and political rights by prohibiting the formation of parties or dissolving existing ones. This can extend to targeting the opposition and eliminating its leaders, as seen in Tanzania’s Ali Mohamed Shein and others from Mozambique, including Alvino Dias and Paulo Jueny, during the current year 2024.
It can be observed that many African nations have not succeeded in establishing an independent, credible judiciary that garners the trust of the populace, which results in the judiciary and similar institutions becoming sources of anxiety instead of reassurance and aggravating rather than soothing public sentiments, due to the hierarchical nature of the judicial system, leading to vulnerability to influence, in addition to the violations accompanying cases presented before courts in terms of form and substance. This undoubtedly makes referring to them a cause for debate and concern among those skeptical of their impartiality, thus renewing questions surrounding the crisis of trust in institutions.
Nonetheless, civil society has made it one of its key battles to reform the judiciary and mobilize the people to correct the course of justice, deemed essential for living in stability. The independence of the judiciary is a fundamental cornerstone for rebuilding the modern state that respects both individual and collective human rights, serving as a basic guarantee for the people against confirmed or potential declines, alongside the commitment the judiciary must uphold to professional ethics that, if adhered to, could enable change and lay the foundation for shared living where citizens enjoy social peace and national cohesion.
In addition to the formal organizational structures within the state, there are others enjoying substantial influence in the political arena, including pressure groups, the media, civil society, and the powerful military establishment that has remained present and influential in the political landscape. However, in all cases, they remain subject to the constitutional document that organizes political life both vertically and horizontally.
Conclusion
There is no perfect constitution except to the extent that it serves people’s interests and preserves their dignity. Nonetheless, the modern African state has struggled to regulate the three powers according to its basic equations, with the executive authority having received the largest share over recent years compared to its legislative and judicial counterparts.
Elevating the constitutional experience requires providing at least minimal levels of decent living that enable citizens to grasp the details of governance, having surpassed the barrier of seeking a livelihood and confronting the pressures of daily life.
Today, African constitutions and their political institutions are more called upon than ever to avoid reproducing their “outlandish” errors in the face of intense competition among major powers, and instead establish a social contract that guarantees citizens a dignified life with all its material and moral requirements.
