Constitutionalism and Democratic Governance in Africa: - PULP

20 Chapter 2
the framers may delineate a whole set of concerns which may range from
an application of the Hobbesian concept of ‘the covenant’, as in the
American constitution; to a basic constitutive process, as in the Malawi
constitution; a code of conduct to which public behaviour should conform,
as in the Liberian or French constitutions; a programme of social,
economic and political transformations, as in the Ethiopian or Soviet
constitutions; to an authoritative affirmation of the basis of social, moral,
political or cultural existence including the ideals towards which the policy
is expected to strive, as in the Libyan Constitution.
The process of constitution-making, which involves, inter alia, making
choices as to which one of those concerns should appear on that map
cannot, therefore, be regarded as a simple reproduction of some basic
principles which particular societies may have found operational. 23
Despite the fact that most of the countries referred to above, such as
Ethiopia and Liberia have since reviewed their constitutions or are in a
political quandary due to a despotic leadership such as the Great Socialist
People’s Libyan Arab Jamahiriya, or ceased to exist as a Union, namely,
the Union of Soviet Socialist Republics; conversely, the definition
epitomises the fact that constitutions for all practical purposes must reflect
the sui generis aspects of a society. It has been well said that the constitution
should and must reflect a country’s historical experiences, history,
cultures, traditions, and hopes for the future. It must be sufficiently
dynamic to reflect the past and the present, and to anticipate the future.
This is the only way to really understand constitutions not just as political
documents but also as instruments for development. 24 This point is well
articulated by Sinjela that widespread corruption and abuse of power had
eroded possibilities for good governance because the ‘lack of
accountability weakened political institutions’ resulting in economic
stagnation in the continent. To avoid a repetition of this situation, ‘the
emergent new constitutional order includes elaborate human rights
provisions and attempts to curb the autocratic power of the executive
branch of the government’. 25
The existence of a constitution which articulates democratic values
and principles is not sufficient for the establishment of the political system
which is democratic in practice. However, it is equally true that a
democratic constitution is a condition precedent for the development of a
democratic constitutionalism. Constitutions therefore require to be
23
HWO Okoth-Ogendo ‘Constitutions without constitutionalism: Reflections on an
African political paradox’ in IG Shivji (ed) State and constitutionalism: An African debate
on democracy (1991) 5. See generally AV Dicey Introduction to the study of the law of the
constitution (1959) 1-205.
24 JO Ihonvbere ‘Towards a new constitutionalism in Africa’ (2000) Centre for
Democracy & Development Occasional Paper Series No 4 (Unnumbered). See J Alder
Constitutional and administrative law (2005) 3-8.
25 Ihonvbere (n 24 above). See also M Sinjela ‘Constitutionalism in Africa: Emerging
trends’ (1998) 60 The Review 24-25.