Constitutionalism and Democratic Governance in Africa: - PULP

CHAPTER
1
INTRODUCTION TO AND
OVERVIEW OF
CONSTITUTIONALISM AND
DEMOCRATIC GOVERNANCE IN
AFRICA
Morris Kiwinda Mbondenyi and Tom Ojienda
1 Introduction
In modern constitutional systems, the term ‘constitutionalism’ has come to
suggest limited government. In fact, constitutions have become a blueprint
for a system of government where authority is shared among a set of
different branches and limitations are implied in these divisions. 1 In such
cases, constitutions lay the foundation for external checks designed to
safeguard the people’s liberties, 2 which is an essential feature of any
democratic system. 3 The concept of constitutionalism, therefore, is the
doctrine that governments must act within the constraints of a known
constitution whether it is written or not. 4 Rather than merely being a static
exercise in historical retrieval, constitutionalism is an on-going process in
which each new generation engages and which necessarily alters in the
process of such engagement. 5 This easily explains why, although all
governments have constitutions, they are not necessarily constitutional
governments. This further explains why it has been so easy for many postcolonial
African governments to use Constitutions to legitimise
authoritarian rule.
Africa’s constitutional history is an excellent case study of the myriad
difficulties that most post-colonial African states have faced and continue
to face in the process of self-discovery. Arguably, the unending conflicts
and civil wars in most of the countries on the continent have been
orchestrated by the quest to establish constitutional regimes that can
guarantee everyone equal participation in the economic, social and
1 L Henkin Foreign affairs and the Constitution (1972) 3.
2
As above.
3 M Foley The silence of the constitutions (1989) 2-3.
4 See DB Mosota ‘Constitutionalism and the rule of law under the new constitutional
order’ in PLO Lumumba, MK Mbondenyi & SO Odero The Constitution of Kenya:
Contemporary readings (2010) 78.
5 As above.
3