Despite scholarly disagreements over the meanings of both the rule of law and emergency, there is broad agreement that emergencies often invite and justify departures from the formal requirements and substantive values identified with the rule of law as a normative ideal. It is often argued that strict adherence to existing laws, which are typically enacted during periods of normalcy in order to prevent arbitrary forms of rule associated with tyranny, could inhibit the government’s ability to respond quickly and effectively to the often unexpected and extraordinary challenges posed by an emergency such as war or natural disaster. Consequently, the temporary use of extraordinary measures outside the law has been widely accepted both in theory and in practice as long as such measures aim to restore the normal legal and political order. However, understandings of the tension between emergency and the rule of law have undergone a significant shift during the 20th century as emergency powers increasingly get codified into law. The use of extralegal measures that violate the formal and procedural requirements of the rule of law is still considered a dangerous possibility. However, as governments have come to rely increasingly on expansions of power that technically comport with standards of legality to deal with a growing list of situations characterized as emergencies, there is concern that extraordinary exercises of power intended to be temporary are becoming part of the permanent legal and political order.
During the anticolonial struggle and immediately after independence, African political leaders were preoccupied with the creation of a “nation-state.” As a result, many of postcolonial African leaders not only promoted national unity but also instituted centralized governance. Unity and centralization were considered important antidotes to the challenges of consolidating postcolonial states, which by and large were created by the partitioning of the continent by colonial powers. As a result, many of the postcolonial leaders were hostile to federalism in general and power-sharing in particular. This explains why many of the federal arrangements, which were created by departing colonial powers, were dismantled within the first few years after independence. In contrast to the earlier periods, the 1990s could be regarded as a turning point for federalism and devolution of power in the continent. Among African states, Nigeria, Ethiopia, and South Africa could be considered fully fledged federations, which have constitutionally devolved power to different tiers of governments. There is also an ongoing attempt to establish a federal system in war-torn Somalia. Some argue that, although federalism does not have a stellar record in postcolonial Africa, it is possible to contend that in the foreseeable future the importance of federalism will grow in the continent given the challenges that many African countries face in the management of their ethnolinguistic diversity. This is evidenced by the increasing application of the federalist principles of decentralization by several African countries.
Hungary became a member of the European Union (EU) alongside nine other, mainly East-Central European (ECE) countries in 2004. Although Hungary was one of the leading candidates from the former Soviet bloc to join the EU after the transition in 1989–1990, this positive view and the advantage that the country enjoyed seemed to gradually disappear by the mid-2000s. Hungarian experience with the EU is quite ambivalent. Economically speaking, on the one hand there is a slow but steady convergence to the EU average, which is largely due to the net beneficiary status of the country within the Community, and employment levels have increased considerably. On the other hand, the Country-Specific Recommendations (CSRs) point to shortcomings related to competitiveness, and labor productivity, which indicate some missed opportunities. Similarly, although budgetary deficit and public debt have been under control lately, sustainability concerns still remain. Additionally, even though the country’s prospects to join the common currency area are quite promising, political willingness is still lacking to make a lasting commitment to the Euro. While the socio-economic expectations of EU membership before accession were quite high and rather unrealistic, although economic growth decreased the level of overall poverty, socioeconomic inequalities have increased lately because of government policies. As far as politics is concerned, even the consensus of the political elite to support liberal democracy as a political system and further integration of the EU as a policy strategy have been questioned by the main governing party lately. Instead, a more Eurosceptic tone and an incremental democratic decline characterizes everyday politics, which has led to recurring criticism within the Community, and the eventual triggering of an Article 7 Procedure.
Charles Manga Fombad
One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.
The term “governance” refers to interactive forms of political steering, characterized by the coordination of a wide spectrum of actors in pursuit of common goals (e.g., Rhodes, 1996; Pierre & Peters, 2000, 2005; Kooiman, 2003; Torfing, Peters, Pierre, & Sörensen, 2013; Ansell & Torfing 2016). Governance processes involve multiple actors and institutions into cooperative relationships and network structures. The corresponding steering mechanisms may range from hierarchical rule to mere persuasion. The governance perspective appeared particularly suited to analyze political steering in the European Union (EU). The Union is not sovereign; it therefore developed steering mechanisms that do not (or only partly) rely on formal competences and hierarchical rule. The evolving system of European governance constituted the EU as a multilevel polity, held together by interlocking relationships of policy coordination and cooperation (Marks et al., 1996; Hooghe & Marks, 2001; Piattoni, 2010). Scholarly reflection on EU governance evolved comparatively late during the 1990s (Hix, 1998); it proliferated after the turn of the century, when the European Union introduced the so-called Open Method of Coordination (OMC) (Kohler-Koch & Rittberger, 2006). Later, the perspective widened to the whole spectrum of governance modes and its innovative forms (e.g., Sabel & Zeitlin, 2008, 2010a; Tömmel & Verdun, 2009a, Héritier & Rhodes, 2011). Yet salient issues remained under-researched, particularly the power dimension of EU governance (Torfing et al., 2013, pp. 48–70).
The variety in climate, vegetation, and population density in Central Africa is enormous, but some of the main features of policymaking and informal rules of politics—at first sight at least—appear quite similar between N’Djaména and Kinshasa, between Libreville and Bangui, in a vast territory bigger than the European Union: clientelism, personalization of power, politicized ethnicity, the impact of external intervention, and a legacy of repeated political violence establish some constant features. On the other hand, the variable size of countries (from island states in the Gulf of Guinea to large territorial states) has also come with various challenges. Also, Central Africa features land-locked countries such as Chad and Central African Republic, which negatively impacts economic development, in contrast to countries located at the Gulf of Guinea with an easy access to maritime trade routes. At closer inspection all of the eight countries have a specific history, but this overview article rather stresses the commonalities. Featuring in this contribution are the countries of Cameroon, Central African Republic (CAR), Chad, Congo, the Democratic Republic of the Congo (DRC), Equatorial-Guinea, Gabon, and São Tomé and Príncipe. The limited achievements of pro-democracy movements in Central Africa in the 1990s have enduring consequences on politics in Africa. Authoritarian regimes have consolidated their grip on power after surviving severe crises in most Central African states. Big man politics continue to prevail, only few opposition parties have upheld their initial strength and lack internal democracy. Enduring violent conflicts in DRC and CAR (and arguably to a somewhat lesser extent in Chad), have undermined conviviality between groups and state capacities in providing public goods with dramatic consequences on effectiveness and legitimacy of the state and its representatives. Prospects for a future allowing for more participation, truly competitive elections, and a peaceful change of government are therefore also grim. However, both violent and peaceful forms of contestation since about 2015 are also signs of renewed mobilization of citizens for political causes across Central Africa. New topics, including consumer defense and ecological issues, plus now-ubiquitous social media, may all be drivers for a new episode of engagement after two decades of frustration. The limited achievements of regional integration and the lack of dynamism of subregional organizations means that Central Africa is still a much less consolidated subregion compared to, for example, West Africa.
Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system. Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.
Nick Sitter and Elisabeth Bakke
Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.