Constitutions and Constitutional Reforms in African Politics
- Muna NduloMuna NduloCornell Law School, Cornell University
Several African countries are currently engaged in the constitution-making process. In Africa, constitution-making usually takes three phases. The first phase took place at independence in the 1960s and was typically led by the colonial power. Constitution-making during this phase was part of the decolonization process. In the case of former British colonies, the independence constitution was British legislation which constituted the independent state. The second phase was from independence to 1989. During this phase, constitution amendments were made to the independence constitutions designed to concentrate power in the presidency. This was the era of authoritarian governments in Africa which culminated into one-party state systems of governance. The third phase, which runs from 1989 to the present, is associated with the worldwide wave of democratization. During this period, constitution-making has centered on rebuilding the political community as well as structures that had been distorted by political manipulation and violence during the era of authoritarian rule. This third phase is also marked by promoting the participation of citizens in the affairs of their own countries and the accountability of governments. A well-designed constitution can promote these objectives. In addition, inclusiveness and peaceful settlement of conflicts can be seen as a vehicle for national dialogue, good governance, and the consolidation of peace.
- International Relations
During the annual heads of state Southern African Development Community (SADC) summit meeting in 1997 the late Nelson Mandela cautioned other SADC heads of states on the dangers of a rigid adherence to SADC’s basic principles of respect for member states’ sovereignty and non-interference in each other’s internal affairs. He stated that this should not blunt SADC’s common concern for democracy and human rights. He added that “the right of citizens to participate unhindered in political activities in the country of their birthright is a non-negotiable basic principle to which we all subscribe” (Mandela, 1997). To actualize Mandela’s ideals requires a constitutional order that promotes participation of citizens in governance and ensures accountability of the government to the citizens. In response to demands for more democratic governance systems or the resolution of institutional crisis, a number of African countries have engaged in the process of negotiating new constitutions (Kenya, Zambia, Tanzania, and others).
In Africa there have been three political contexts of constitution-making. The first phase took place at the time of independence. In each country, the constitution-making process during this period was led by the relevant colonial power as part of the process of decolonization and the creation of new sovereign states. A dominant concern was to aggregate power in a centralized authority as a way of maintaining unity. In the former British colonies what is popularly termed a Lancaster model was imposed. Nwabueze argues that in the former French colonies the situation was different as in those countries the constitutions were made in Africa and were freely chosen without dictation or imposition by the French colonialists (Nwabueze, 2004). The second phase was the period between independence and 1989. This period was marked by the development of autocratic constitutions, through the enactment of numerous amendments to the independence constitutions, designed to centralize power in the presidency and the executive. For example from 1980 to 2000 the Zimbabwe constitution was repeatedly amended on the pretext that it needed to be made more relevant to Zimbabwe’s particular situation. In reality the amendments centralized more and more power in the executive. In many countries, these practices culminated in the installation of one-party systems of government which significantly reduced the rights of citizens to participate in the political process (Gertzel, 1984). The third phase is associated with the worldwide wave of democratization which began in 1989 and continues to the present day. The collapse of communism in the early 1990s propelled a worldwide wave of democratization which encompassed, Africa, Latin America, and Asia. Benin’s democratic transition in 1989 led the way in Africa (Bierschenk, 2009). During this period, constitution-making centered on rebuilding the political community as well as structures that had been distorted by political manipulation and violence during the era of authoritarian rule, and promoting the ability of citizens to participate in the affairs of their own countries and adopt measures to promote the accountability of governments to their citizens. A variant of the post-democratization constitution-making process context is constitution-making that takes place at the end of a conflict, often as a means to end it. In this context, constitution-making typically follows the conclusion of a peace agreement, or may even be among the settlement terms: it is intimately linked to the dynamics of negotiations designed to convince parties to lay down arms. Thus, parties might accept terms they might not have accepted under other circumstances. The focus is on rebuilding the political community as well as state structures which collapsed during conflict and securing the protection of human rights. Recent events following elections in Kenya, Uganda, and Zambia suggest democratic backsliding in several African countries (Bleck & Van De Walle, 2019). The decline reminds us that the challenges of democratic consolidation, national integration, free and fair elections, the rule of law, accountability, and the management of diversity in the governance of the state continue to pose significant challenges for a number of African states.
Most African states are comprised of multiethnic societies with low levels of ethnic integration. If not managed properly, ethnic diversity can be a curse and source of instability. Yet ethnic diversity properly handled can be a source of celebration and a national resource as valuable as any natural resource—copper, gold, or timber—that enriches a country’s culture and can be harnessed to support development. While there is no single easy solution to the problem of ethnic conflict in Africa, constitutional design can offer avenues for resolving disputes that lead to conflicts. To achieve real progress in constitution-making, measures that address questions of economic development, equitable access to resources, and inclusiveness in the governance of the state must be addressed. Inclusiveness is a core value of democratic governance in terms of equal participation, equal treatment, and equal rights before the law. This implies that all people—including the poor, women, ethnic and religious minorities, indigenous peoples, and other disadvantaged groups—have the right to participate meaningfully in governance processes and should be able to influence decisions that affect them. It also means that all groups should have equal access to economic activities including jobs and business opportunities. It further entails that governance institutions and policies should be accessible, accountable, and responsive to disadvantaged groups, protecting their interests and providing diverse populations with equal opportunities for public services such as justice, health, and education.
This article contends that a poorly designed constitution can hinder inclusiveness and thereby promote ethnic grievances and conflict; it further seeks to identify key issues that should be addressed in the constitution-making process to promote inclusiveness and a sense of citizenship and citizen ownership of the political process in a nation-state that is made up of diverse groups of people. Conflicts in Africa have typically been rooted in struggles for political power, ethnic privilege, and scarce resources (Harris & Reilly, 1998). Unless African states manage diversity in their respective nation-states and build institutions that are inclusive, and promote economic development, stability, and enfranchisement, the threat of disintegration will always persist. Further, many of these states will continue to face demands for self-determination by minority groups who feel marginalized and desire to have greater management of their own affairs as the only way to ensure equitable distribution of national resources.
Underlying most conflicts in Africa is a crisis of governance, marginalization, mismanagement of economies, and poverty, leading to a scramble for resources (World Bank, 1989). Appropriate constitution design and good governance could make major contributions to national cohesion, economic development, a decrease in the rate of marginalization, and increased access to governance structures, thereby leading to the reduction of tensions that often lead to conflicts. Development seeks to expand choices for all people—women, men, and children. Development would promote the economic, social, civil, and political realization of human rights through the provision of jobs, elimination of poverty, promotion of human dignity and rights, and provision of equitable opportunities for all. Human rights and sustainable development are interdependent and mutually reinforcing. In conditions of prosperity, where individuals have equal access to resources and institutions that guarantee access to governance, conflicts are less likely to arise and those that do can be resolved more quickly and peacefully. As the former Secretary-General of the United Nations, Kofi Annan, observed:
In a country where those who hold power are not accountable but can use their power to monopolize wealth, exploit their fellow citizens and repress peaceful dissent, conflict is all too predictable and investment will be scarce. But in a country where human rights and property rights are protected, where government is accountable, and where those affected by decisions play a part in the decision-making process, there is a real chance poverty can be reduced, conflict avoided, and capital mobilized both at home and from abroad.(Annan, 2000)
The answer to Africa’s conflict-and-development quagmire lies in establishing democratic and inclusive governance in African countries. This calls for a critical examination of governance in Africa with a view toward identifying the obstacles to establishing good governance. The most important legal instrument in the scheme of good governance is the national constitution. Thus, a major part of the answer to managing diversity and avoiding conflict lies in the development of constitutions that lay solid foundations of respect for inclusiveness and fundamental human rights, accommodate diversity, and promote equal access to governance structures. These constitutions, drawn up for the protection of and applied equally to all citizens, should encompass a willingness to coexist with differences, promote a culture of political tolerance and respect for the rule of law, and foster an environment where peace and development can flourish. Such arrangements will ensure that the exercise of governmental authority is conducted in a predictable, responsible, and legally regulated manner to the satisfaction of the diverse peoples who typically comprise the national state in Africa (Meyer, 1995).
Constitution-making can become a vehicle for national dialogue, good governance, and the consolidation of peace, allowing competing perspectives and claims within society to be aired and incorporated. There are a number of issues that affect the development of a country’s constitution, especially in a multiethnic society. One such issue is how to establish nation-states with institutions that promote economic development and good governance; that facilitate political harmony and stability, manage diversity, and serve as a vehicle for the processing of disputes between state and citizen and among citizens; and that minimize the possibility of conflicts through enfranchisement of the people.
The article is organized into six sections. The first section examines the colonial heritage of African states and how it has impacted on present-day governance; the second section looks at governance and the management of diversity; the third discusses conflicts and ethnicity and its implication for governance; the fourth looks at constitution-making and the accommodation of diversity; the fifth discusses the electoral system in the context of diversity; and the sixth looks at devolution of power to local communities and the role of traditional authority in modern African political systems.
The Colonial Legacy and Governance in Africa
Traditional African society had its own system of social and political organization (Colson, 1951). The village was the basic political unit, while the tribe acted as the larger unit of organization. Gluckman, for instance, writing about the Lozi of Zambia, observed that the Lozi had a complex economy that required many people to cooperate in various productive activities (Gluckman, 1965). The village comprised the basic unit of organization in the economic, political, and domestic system. A headman was the political and administrative head of the village, took responsibility for the village to the king in council, and represented the village at the chief-headed council. The chief governed with the assistance of councilors (Mainga, 1973). Such governance did not include jurisdiction over other tribes, who had their own headmen and chiefs. Since the advent of colonialism, however, African societies have experienced fundamental and protracted economic and social changes. The era of colonialism initiated—and that of independence consummated—a dynamic process of disruption in tribal organization and tribal life (Gluckman, 1965). In contrast to precolonial times, the financial, political, and military security of African societies no longer depends on traditional organization and custom but rather on new political and economic institutions. African societies, formerly based on agrarian self-subsistence communities, now rely on a money economy dependent on the capitalist economic system. With such fundamental changes, the political institutions governing African societies also had to be transformed. The foremost act of disruption was the unification of ethnic communities under the umbrella of sovereign states, created pursuant to the Berlin Conference of 1884, with overriding powers of political control within each state’s area of jurisdiction (Rotberg, 1965). Dislocation of African peoples from their lands and communities continued throughout the colonial period as the needs of the colonial economy expanded, further undermining any tribal economy or social organization that might have been left in place after the initial establishment of colonial rule (Bentsi-Enchil, 1969; Ogendo, 1982).
Colonial rule was philosophically and organizationally elitist, centralist, and absolute. Lacking representative institutions, the colonial administration not only implemented but created policies as well. Colonial officials were given almost unlimited discretion with no formal controls over their exercise of power (Seidman, 1987). As colonial rulers sought expedient interlocutors, they distorted or destroyed precolonial governance systems by creating or encouraging arrangements such as indirect rule that manipulated traditional forms of governance. Such arrangements made existing local chiefs more despotic and created new ones (warrant chiefs) where none had existed before (Anthony, 1953; Gann, 1958). Independence did not change the fundamental structure of the colonial society and therefore did not stop the decline of traditional institutions. In almost all cases, the African independence leadership took over the colonial state as established by the departing colonial power. Recreating the old tribal state has never been on the agenda and in the face of the existing state structures created by colonial rule is neither feasible nor an option.
Urban and Rural Divide
During the colonial period, African societies became divided into the rural and the urban, with two distinct cultures. Traditional culture resided in the rural areas, with the great majority of people living outside the framework of colonial elitism (Gann, 1964), while the urban areas housed the “modern culture.” The urban economy and culture served as the link between the metropolitan country and the colony in the export of raw materials. Colonial economic policies kept African economies small, excessively open, dependent, and poorly integrated (Seidman, 1987). The colonial state was characterized by a huge gap in the standards of living between the rural and urban areas. This rural/urban divide, dating from the colonial period, continues today and has arguably grown (Seidman, 1987). The rural areas continue to be neglected, marginalized, and impoverished, as weak states fail to provide services or indeed any effective governance structures to rural areas. Furthermore, mounting evidence indicates that the International Monetary Fund (IMF) and World Bank stabilization and structural adjustment programs implemented in the 1980s in most African countries have only widened the divide between urban and rural areas (Seidman, 1996), while the impact of globalization has further exacerbated the situation (Stiglitz, 2018). This divide is reinforced by the lack of effective devolution of power to local communities.
Moreover, not only has the colonial legacy endured long after independence, it has had a major influence on the style of governance prevalent in Africa. Colonial rule bequeathed to independent African states undemocratic governments and bureaucracies that emphasized hierarchy, compliance, and discipline, without addressing other equally important concerns such as public accountability, responsiveness, participation, and respect for human rights and the rule of law (Gertzel, 1984). Many governments that emerged after independence quickly became undemocratic, over-centralized, authoritarian, and predatory. Predictably, political monopolies led to corruption, nepotism, abuse of power, and conflict (Maina, 1996). African presidents replaced their colonial governors in fact and in deed. Like the colonial governors, they became the sole embodiment of the social will and purposes of the countries they ruled. As observed, repressive one-party systems of government emerged. With a one-party system, power came to be concentrated in one person (Yusuf, 1994). Dissent came to be viewed with ill-conceived hostility and punished severely, almost as if it were treason (Zimba, 1984). Ultimately, the single party supplanted the machinery of the state, blurring the differences between the two (Mwanakatwe, 1994). The result was that the state suffered a crisis of legitimacy in the eyes of the citizenry. Nwabueze has observed that as long as the state in Africa remained a colonial state, its powers continued to lack legitimacy, so that what was transferred to African successors at independence was power devoid of a moral right to hold and exercise it, for the Europeans colonialists could not at independence have transferred to their African successors any better title than they themselves possessed (Nwabueze, 2004). This makes it imperative that successful constitution-making put in place constitutional structures that transform the colonial state and promote competitive politics and the legitimacy of the African state.
Diversity, Conflict, and Governance
The State and Ethnic Diversity in Africa
The modern African state has its roots in colonial history. At the 1885 Berlin Conference, the colonial powers partitioned Africa into territorial units by arbitrarily dividing kingdoms, states, and communities (Hall, 1965). Unrelated areas and peoples were joined together and united peoples were torn apart (Rotberg, 1965). In the 1960s, the newly independent African states inherited the colonial boundaries, a legacy which posed a challenge to their territorial integrity and to their attempts to achieve national unity. The territorial challenge was intensified in some new states by the colonial laws and institutions that were designed to exploit local divisions (Lugard, 1922). However, the era of serious conflict over state boundaries has largely passed, aided by the Organisation of African Unity’s (OAU) 1963 decision to accept the colonial boundaries inherited at independence (OAU, 1964). Nevertheless, creating a genuine national identity among different ethnic groups remains a challenge for most African countries. Very few African state crises have been based on boundary disputes; rather, they are typically based on a failure of governance and marginalization. Where threats to the territorial integrity of African states have arisen, they have primarily resulted from minority demands for self-determination, devolution, and participation in governance. Secession is almost universally condemned by African states and, except for Biafra, Eritrea, and South Sudan, has not been the basis for conflict.
Commercial relations under colonialism also created long-term distortions in Africa’s political economy. Transportation networks, especially railroads and related infrastructure, were designed specifically to satisfy the colonial state’s trade needs, not to support the economic growth and integration of the indigenous economy (Ndulo, 1984). Colonial powers imposed unfavorable trade terms and strongly skewed economic activities toward extractive industries and the exportation of primary products (World Bank, 1981). As a result of the distorted nature of African economies, the competition between political parties in many African states is guided not by competing national economic development strategies, but rather by the motivation to capture key economic sectors for factional advantage. Fifty years after the end of colonial rule, little has changed: transportation networks and the basic structure of the economy have remained largely the same.
The existing conditions for capturing and maintaining political power in Africa are a key source of instability in many African states. Typically, political parties are dominated by one ethnic group. In African elections, the winning party frequently assumes a “winner-take-all” mentality with respect to patronage, wealth, and resources as well as prestige and prerogative of office (Nwabueze, 1989). A communal sense of advantage or disadvantage is often closely linked to this phenomenon, which is heightened in many cases by reliance on centralized and highly personalized forms of governance. The domination of the ruling party by one ethnic group translates into jobs and economic opportunities only for that group; whoever captures power controls access to resources and jobs. This is exacerbated by the insufficient accountability of leaders, lack of regime transparency, inadequate checks and balances, non-adherence to the rule of law, absence of peaceful means to change or replace leadership, and lack of respect for human rights (Bentsi-Enchill, 1969). The problem is further intensified when, as is often the case in Africa, the economic pie to be shared is small and the state is the major source of wealth and accumulation. Given the multiethnic character of most African states, the tendency for political parties to have the dominant ethnic group as their base of support leads to a violent politicization of ethnicity (Matlosa, 2001). In extreme cases, rival communities believe that they can ensure their survival and economic advancement only through control of state power, and thus tensions become virtually inevitable. Without an industrialized middle class to act as a buffer, there is usually no countervailing force to blunt the excesses of would-be warlords (or the state itself), and conflict results (Museveni, 1982).
The Management of Diversity
McGarry and O’Leary (2004) have grouped the ways of regulating ethnic diversity into two broad categories, namely methods for eliminating ethnic differences and methods for managing ethnic differences. The methods for eliminating ethnic differences include genocide, forced population transfer/ethnic cleansing, partition or secession, and integration or assimilation. The methods for managing ethnic differences, on the other hand, include hegemonic control, arbitration (or third-party intervention), federalization, and power-sharing. The second group—managed differences—is obviously the only viable way to both maintain the state as it exists and respect human rights. This kind of management can be advanced by strengthening democracy, governance, and the rule of law.
Democracy has a far better record for peacefully managing tensions in a nation-state than any other alternative systems (Harris & Reilly, 1998). Authoritarian or totalitarian systems simply do not have the institutions that allow societal conflict to be peacefully expressed and resolved. Dictatorships generally try to deal with conflict either by denial or suppression via state coercive apparatus. While some conflict can indeed be controlled in this manner, albeit at a severe cost, in most cases the underlying tensions are not resolved. The existence of fundamental issues such as identity and cultural integrity in conflicts means that little short of mass expulsion or genocide will make them disappear. An authoritarian system can present an illusion of short-term stability through its use of coercive state power to suppress dissent, but is unlikely to sustain that stability over the long term.
In a democracy, by contrast, disputes that arise are likely to be processed, debated, and reacted to (Harris & Reilly, 1998). In short, democracy operates as a conflict-management system. As Harris and Reilly (1998) have observed: “It is this ability to handle tensions and conflicts without having to suppress them or be engulfed by them which distinguishes democratic governance from authoritarian rule.” This does not by any means suggest that democracy is perfect, or that the mere establishment of democratic governance will itself lead to the settlement or prevention of conflicts. There are a number of cases in which democratic institutions have been hastily “transplanted” to post-conflict societies without them taking root, with a subsequent resumption of hostilities (UN Report, 1996). But it is equally true that these cases offer many lessons in terms of how deals are struck and which choices are of crucial importance to building a sustainable outcome. Democracy is often messy and difficult, but it is also the best hope for building sustainable settlements to most conflicts in most communities. However, the democratic institutions have to be strong enough to function effectively and fairly. They can only be strong where an effort has been made to build these institutions in an economic environment that is strong enough to sustain them. The United Nations has observed that conflicts are most prevalent in poor countries (especially those with significant economic inequalities). Poverty and sustainable livelihoods are closely linked to human rights and the exercise of democratic rights. Poverty and inequality can undermine human rights by fueling social unrest and ethnic violence and increasing the precariousness of social, economic, and political rights (UN Report, 1996).
Almost invariably, where the rights of subordinate groups are insufficiently respected, the institutions of government are insufficiently inclusive, and the allocation of society’s resources favors and benefits a single dominant group, conflict results (Harris & Reilly, 1998). The solution is clear, even if difficult to achieve in practice. It is to promote human rights, to protect minority rights, build strong and inclusive political and governmental institutions, and institute democratic governance in which all groups are represented. It is essential, to prevent men and women being compelled to take recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. It has been correctly observed that one cannot successfully wage insurgency against a government that is inclusive, democratic, strong, and effective, and provides the basic social and economic needs of its people.
A growing international consensus recognizes the central role that a good, efficient, and capable government plays in the economic and social development of the country. The UN General Assembly has recognized that democratic, transparent, and accountable governance in all sectors of society forms an indispensable foundation for the realization of social and people-centered sustainable development (UN Resolution, 1996). It has called on all member states to respect and protect all human rights and fundamental freedoms, especially the right to development, while maintaining focus on the interdependent and mutually reinforcing relationships among democracy, development, and respect for human rights (UN Resolution, 1996). Although a huge gap exist between rhetoric and practice, the African states themselves have come to realize the importance of governance in the development process, the New Partnership for African Development (NEPAD) (OAU, 2001), while recognizing the historical and colonial roots of African underdevelopment, recognizes that good governance is a pre-condition to development.
The United Nations Development Program (UNDP) has defined good governance as “the responsible exercise of political, economic and administrative authority in the management of a country’s affairs at all levels” (UNDP, 1997). Good governance is, among many things, participatory, transparent, accountable, effective, equitable, fair, and promotes constitutionalism and the rule of law (Nsibambi, 1997). Participation involves members of the public in decision-making and implementation of public projects or other government activity. Going beyond the arena of consultation, participation implies the existence of opportunities to contribute through gainful employment, to move in the mainstream of political, economic, and cultural processes without suffering marginalization and discrimination. It further implies freedom from poverty, deprivation, and vulnerability through a guaranteed system of social safety nets and social security systems. Transparency involves establishing appropriate lines or forms of accountability between the government and the people. This can include access to information, open decision-making, and rules of procedural fairness such as the communication of decisions and the reasons on which they are based. Fairness is broken down into substantive and procedural elements, with substantive fairness requiring the actual fairness of results and procedural fairness holding that the process of representation, decision-making, and enforcement in an institution be clearly specified, non-discriminatory, and internally consistent. In short, good governance creates what may be described as a “capable state” as contrasted to a failed or failing state. In this context, a “capable state” is transparent; accountable in the conduct of national affairs; able to enforce law and order throughout the country; respectful of human rights; effective in providing infrastructure; limited in its involvement in the market economy; responsible for the creation of a favorable policy environment; and a development partner with the private sector and civil society (Armstrong, 1994). Other important characteristics of a “capable state” include: acceptance of opposition and competitive politics; predictable, open, and enlightened policy-making; a civil service imbued with a professional ethos acting in furtherance of the public good; maintenance of fair terms of trade between the rural and urban sectors; and recognition and respect for the boundaries separating the state from the private sector and civil society.
Constitution-Making and the African Context
Functions of a Constitution
The functions of a constitution can be summarized as follows: (a) to constitute a state; (b) to institute a framework of government armed with powers and institutions necessary and adequate for the effective management of public affairs; (c) to limit those powers in the interest of the protection of liberty of the individual; and (d) to declare the ideals and objectives of the nation and the duties of the state to its subjects (Nwabueze, 2004). Attempts to formulate a document that achieves these objects must be context driven and respond to the needs of the people. No two countries are similarly situated. In order to achieve these objectives, constitutional drafters will have to apply careful thought and inquiry to the proper organization of political, economic, and governance institutions to ensure the proper governance of the nation-state (Gloppen, 1997). A serious search for a viable constitution that is inclusive and promotes political stability must take into account the specific social, political, and economic conditions present in African countries. There are a number of conditions specific to the African situation which, unless addressed, would impact negatively on good governance in an African context. First, there is a need to seek clarity, through debate, on the type of society the country wishes to create. In 1993, before the South Africans developed their interim constitution, they engaged in a serious debate as to what sort of society South Africa should be. They decided on the creation of a non-racial, non-sexist, and democratic society (Constitution of the Republic of South Africa, 1996, section 1) as expressed in the constitutional principles that were adopted to guide the elaboration of the 1996 constitution. A clear vision for the emergent state is important if questions of citizenship, religion, and the status of minorities in the society are not to be problematic. Second, there is a need in each country for sufficient national unity or cohesion to generate social and political power. This unity and cohesion must be strong enough to enable diverse peoples to achieve well-being and development that are beyond their reach as separate units. Third, African states need to accommodate the vast ethnic diversity that exists in each state and institutionally acknowledge the intensity of the attachment which Africans have to their ethnicity. Fourth, African states need to accommodate the significant racial minorities that exist in their countries. Constitutions must deal with this situation sensitively, not only consciously acknowledging the fears and apprehensions of racial minority groups, but also meeting their legitimate demands and involving them, in a meaningful and satisfying way, in the political systems that evolve as well as in nation-building. Fifth, the search for viable constitutional arrangements must acknowledge the newness and artificiality of African states, which were, for the most part, recently and arbitrarily created during the colonial period, and the need to promote nationhood and national cohesion and the equitable distribution of resources in the country.
Sixth, a viable constitution must accommodate the general economic underdevelopment that exists in several of these countries and the consequential urgent need for development on all fronts and in all regions of the country simultaneously. Seventh, African constitutions cannot ignore the disproportionate economic and social importance of public office to individuals in the midst of poverty and ignorance. Eighth, the constitution must recognize the temptations of arrogance, abuse of power, and corruption assailing persons in office. Ninth, it must face the influence of money in the electoral process. This is worsened by the fact that most opposition parties in Africa lack the resources to operate effectively and cannot raise money as their members are not in a position to make meaningful financial contributions to the running of the party. Thus, the funding of political parties by the state become important. The principle of government funding of political parties is well established across the democratic world (Ndulo, 2000). In the absence of state-funding arrangements, the party in power has an undue advantage as it has access to state resources and institutions to push its political agenda. Tenth, there is the problem of cultural values and traditional roles assigned to women that perpetuate the inequality of the genders (Simons, 1968). This suggests constitutional provisions that advance and promote equality of all citizens regardless of sex or gender, and intervenes to correct the legacy of inequalities which has discouraged groups for centuries. For example, the Kenyan constitution requires parliament to enact legislation to promote representation within it of: (a) women; (b) persons with disabilities; (c) youth; (d) ethnic and other minorities; and (e) marginalized communities.
Eleventh, there is a need to build and protect a vibrant and free press. One of the major problems the opposition parties face in Africa is the absence of independent media. Typically, the opposition parties receive practically no coverage (except negative) from the government-owned media. Only a free press can provide citizens with a range of information and opinions on the actions of the government, including fiercely critical views. This enables citizens to hold their representatives accountable in an informed manner (Fiss, 1996). In addition, a free press, by exposing wrongdoing, encourages accountability of public officials and politicians and discourages corruption. Further, a free flow of accurate information has economic implications in that a competitive market economy requires economic actors who have access to relevant, timely, and reliable information. The less available or credible the information, the greater the uncertainty and risk to investments, thereby discouraging the flow of capital for economic development.
Twelfth, there is a need to develop mechanisms in the constitutions that restrain the exercise of presidential powers. Concern about presidential power is common in conversations about democratic decline in Africa. Presidential power is inadequately checked in many parts of Africa and is at the core of most constitutional crises in the continent. It is also the major culprit in the abuse of state power against citizens and in undermining the separation of powers. Presidents in Africa treat other organs of government, such as parliament and the judiciary, as subordinate to them and routinely undermine or ignore the separation of their powers. As Nwabueze has observed: “Presidentialism in Commonwealth Africa has tended towards dictatorship and tyranny not so much because of its great power as because of insufficient constitutional, political and social restraint upon that power” (Nwabueze, 1974, p. 435). Thirteenth, there is the need to encourage the development of a viable civil society. Civil society in a democracy provides the checks and balances that assist ensuring accountability by governments. In Africa, years of one-party systems of governance and military regimes have hindered the development of powerful civic organizations. Civil society lacks the capacity and resources to work effectively. Additionally, most civil society operates almost exclusively in urban areas. Fourteenth, constitutional arrangements must address the role of traditional authorities in modern African political systems. Finally, a serious search for viable constitutional arrangements must respond to the need to decentralize power as part of the agenda to deepen and consolidate democracy, ensure effective representation and local participation in governance, and develop local-level capacities to respect and promote good governance, human rights, and the rule of law. The constitution must also be transformative. As observed, independent African states inherited colonial structures that in the main hinder development. The inherited colonial structures need to be transformed into structures that anchor and promote development and, most importantly, promote inclusiveness.
Beyond the essential ingredients of a democracy, a democratic constitution should be seen as a liberating document, especially by disadvantaged groups within the country, which not only limits the powers of the state and its institutions but guarantees the kinds of liberties and freedoms that will make the pursuit of happiness and self-fulfillment a reality for all people. It should empower and liberate women, the poor, and minority groups. It should guarantee equality of economic and educational opportunity for all citizens irrespective of ethnicity, gender, race, religion, or ethnic background. It should guarantee access to government processes. It should provide effective means of ensuring that the state is accountable to the people. For example, access to courts and the ability to enforce social and economic rights can ensure that the government of the day abides by the rule of law and is accountable for its policies and operations as they impact on the delivery of services. Equal opportunity for all is a mark of true liberation and eliminates the feeling of marginalization by minority groups. It ensures that benefits of economic development accrue to the many and not to the few and that all citizens have a chance to live up to their potential and to achieve self-fulfillment.
The Electoral System, Participation, and Diversity
Constitutional-making processes in African countries should consider reforms to the electoral system in order to enhance democracy and promote inclusiveness. Two systems are in place in the world—proportional representation and first past the post (Nadais, 1992). The majority of African states follow the first-past-the-post system. Free and fair elections are indispensable elements to democratic governance. They are the obvious and traditional way of ensuring accountability and providing an institutional framework for the peaceful transfer of power among competing political parties. However, when the rules of the game are not accepted and respected by all stakeholders, or when they create permanent losers and facilitate the ethnic domination of one group over the others, the process becomes controversial, divisive, and a source of conflict rather than a framework for competitive politics. Elections must be organized in a manner that promotes competitive politics and, confidence in the electoral system, and ensures maximum participation of all stakeholders in the political process. Unfortunately, many elections in Africa have been characterized by malpractice and violence, with election results disputed (Zambia, Uganda, Zimbabwe, and Kenya), resulting in sharpened political divisions and conflict as opposed to consolidating democracy. This is largely because national elections are often manipulated by the party in power and therefore result in opposition parties feeling cheated by the process. These elections have become modern-day coups d’état. As Chazon (1988, p. 12) has observed: “In Africa, elections provide ritual occasions for sanctioning the existing power constellation but allow for precious few opportunities for affecting the composition of the ruling circles or policy outcomes.”
The utility of elections is further undermined by the fact that the electoral process is often not accompanied by the building of institutions that foster accountability and greater transparency in the governance of the country. The challenge here is to design constitutional arrangements to make elections an effective tool for choosing representatives of the people, as well as an integrative force in the process of constructing a democratic state that accommodates diversity and promotes competitive politics. At a minimum, national elections must be organized in a manner that guarantees maximum participation of all sectors of the population, especially minority groups, and must be managed by competent and independent electoral bodies. Regional organizations such as the African Union (AU), SADC, and Economic Community of West African States (ECOWAS) need to play a more constructive role and guarantee free and fair elections in Africa. Unfortunately, hitherto they have tended to support incumbent regimes even in the face of clear and convincing evidence that the electoral result was fixed in favor of the ruling party, thereby legitimizing stolen elections—hardly a way to encourage a culture of free and fair elections and constitutionalism in Africa. A recent example is that of the Congo elections where the AU, after initially expressing serious concern about the elections, reversed its position and endorsed what many believe was a fraudulent election (Africa News, 2019). The actions of the regional organizations were contrary to two key AU texts. The Constitutive Act of the African Union in Articles 3 and 4 emphasizes the significance of good governance, popular participation, the rule of law, and human rights on governance and elections, and calls on member states to take appropriate actions to promote these values. Further, the African Charter on Democracy, Elections and Governance adopted by the AU in 2007, in Article 5, states that parties to the treaty shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power. Article 23 declares any attempt to maintain power or refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair, and regular elections to be illegal.
The design of an electoral system is increasingly recognized as a key lever that can be used in the promotion of inclusiveness, political accommodation, and stability in ethnically divided societies. As Reynolds (1995, p. 86) has observed, “Although appropriate electoral laws are insufficient to ensure stability and good governance in divided societies, poorly designed laws can entrench societal divisions and exacerbate pre-existing conflicts.” In many African states election results show the main political party as having overwhelming support in a core region.
The winner-take-all system, which is applied in most African countries, tends to reinforce this kind of approach to politics as it creates permanent losers and permanent winners, especially in situations where there are dominant and minority groups. This system is based on the principle of territorial representation, emphasizing the relationships among the voter, the representative, and the geographic delimitation of the constituency (des Villiers, 1993). The size of a party’s representation is thus determined not only by the number of votes received, but also by the geographic concentration of those votes. Should a party’s votes be too widely scattered over the country or too highly concentrated in one area, it could at best be under-represented in parliament and at worst have no representation at all. In such a situation, groups that are numerically small can never win an election. They therefore remain permanently aggrieved. Such a system is unlikely to promote participation and inclusiveness in the governance process in deeply divided societies that are non-homogeneous (Bogdanor, 1987).
In a proportional representation system, the political parties compete for support in multi-member constituencies and the division of seats is determined by the actual support that a party receives. The main objective of proportional representation, in contrast to the winner-take-all system, is to ensure that there is a proportional relationship between the votes received and the seats allocated to a particular party. The net effect of proportional representation is that all political parties, not only the majority or larger parties, are represented in accordance with their support base. If minorities are to accept their legislature, they must be adequately represented in it. Winner-take-all elections do not sufficiently address the representation of minorities. Without effective representation, and without any significant possibility of the minorities affecting the balance of power, a dominant majority has little incentive to address the grievances of the minority. Additionally, it has been observed that there is a strong relationship between electoral systems and the number of women in legislative assemblies (Norris, 2006). In countries such as South Africa, it has resulted in the representation of more women in parliament.
A major criticism of proportional representation is that it can allow extremist parties to gain representation in parliament, thereby gaining legitimacy in society (Nadais, 1992). There is also the perception that the system leads to coalitions and therefore weak governments. These objections are far outweighed by the benefits the system contributes to stability and the representation of all population groups in a country. No government, not even one with a large majority in parliament, would be able to work effectively if its society were perpetually on the verge of permanent breakdown, aggravated by threats of extra-constitutional action by under-represented minorities. In any case, the question of proportional representation versus the winner-take-all approach does not require an either/or answer. A country which, for example, has two houses of parliament can employ one system in each house. Further, even in a single house, legislature seats can be divided between the two systems, as is the case in Mexico and Lesotho among other countries. Moreover, it would appear that proportional representation rather than the winner-take-all system is more in line with traditional African political organization. Most traditional societies insisted that major decisions affecting the whole community should not be made by a bare majority of the society. African societies insisted that every effort should be made to achieve consensus with all key sectors of the community before decisions are made (Bentsi-Enchill, 1966).
Devolution, Traditional Authorities, and Democratic Governance
Devolution to Local Authorities
There are typically three levels of government: national, subnational, and local authority. Decentralization stresses the delegation of central government functions to lower levels of government (regional or local) to which may then be granted a sphere of autonomy protected from the supremacy of national government. The AU, in its Charter on Values and Principles of Decentralization, Local Governance and Local Development (AU, 2014), promotes decentralization. A number of post-democratization African constitutions, for example those of South Africa and Kenya, provide for national, provincial, and local spheres of government that are distinctive, interdependent, and interrelated. The constitutions give considerable autonomy to the various provinces in the country, thereby ensuring accommodation of local communities, which is a desirable approach to unity in diversity. Under the constitution, parliament has no legislative competence over matters within the functional areas of the provincial legislature except in exceptional circumstances. This approach increases the chances of local communities participating in government structures. Devolution of power to local communities reflects the political evolution toward more democratic and participatory forms of government that seek to improve the responsiveness and accountability of political leaders to their electorates. It is premised on the fundamental belief that human beings can govern themselves in peace and dignity in pursuit of their collective well-being when they have been entrusted with control of their own destinies through the medium of popular local democratic institutions. In economic terms, devolution permits governments to match the provision of local public goods and services with the preferences of recipients. In political terms, devolution provides local minorities with greater opportunities to preserve their distinctive cultural and linguistic identities. It also reconciles diverse cultures, religions, and languages, particularly in large countries where unitary and central administration is difficult. Further, by providing space in which ethnic and language groups can express themselves politically, it promotes tolerance—a core value that not only keeps the social structure together but also enables it to function smoothly. It permits the accommodation of local interests within the framework of a stable political system.
The right to participate is an important opportunity embedded within the framework of decentralization. Participation as a human right is an essential aspect in determining the democratic content of any political system. The multiple layers of activity at various levels of local councils resulting from devolution engender enormous community participation. Since locally elected leaders know their constituents better than authorities at the national level, they are better positioned to provide the public services local communities need. Physical proximity also makes it easier for citizens to hold local officials accountable for their performance. Further, when a country finds itself deeply divided, especially along geographic or ethnic lines, which is the case in some African countries, devolution provides an institutional mechanism for bringing minority groups into a formal, rule-bound bargaining process. A regional system can provide channels for the expression of regional sentiments and allow national policies to become more sensitive to regional and local variations within the nation-state. It can also provide scope for regional interests on the political stage, allowing minority parties, which might otherwise be excluded from political power, to exercise influence and make their voices heard.
Another important political advantage of devolution is that subnational authorities reduce the concentration of power at the center and thus hinder its arbitrary exercise. In other words, they form an additional check-and-balance mechanism that helps to prevent the “tyranny of the majority” or authoritarian rule and promotes accountability. Clearly an important point in making participation effective is ensuring that the community is empowered through the process. Inclusiveness is only meaningful when the participants are empowered to be capable of participating and contributing actively in the preparation, implementation, monitoring, and evaluation of policies and governance actions. There must be programs to ensure that capacity is developed among the people, thereby allowing for higher levels of more effective participation.
Many African countries fear decentralization and the potential dangers of separatism; there is an apprehension that devolution could very well be a prelude to secession. Certainly there are political dangers in the devolution of power to subregional units. For example, wrongly structured subnational entities—such as regions—can provide an opportunity for political mobilization on the divisive basis of ethnicity or religion, with potential consequences of political oppression, intolerance, and, at the extreme, secessionist movements. A related danger is that a regional system might frustrate the task of “nation-building.” For instance, a study on Uganda showed that the power of the districts to employ staff led to a tendency by districts to employ people regarded as native to the district. Sentiments such as these find expression in the craving for new districts or for transfer to preferred neighboring districts (Ahikire, 2002). The creation of a district has a multi-tier effect; each district created results in new demands from local communities who feel marginalized. It has been observed that in Uganda the notion of territoriality and homogeneity embedded within the logic of decentralization has tended to create an unending chain of marginalization and quests for autonomy. There is a need to deconstruct the concept of devolution and focus on the content of the regional arrangements that are being put in place. While regions should build on identity, belonging, and sense of place, the overriding goal should be to avoid the creation of exclusive, ethnically homogeneous units which emphasize ethnic divisions.
Effective devolution of power to local authorities entails the existence of local communities endowed with democratically constituted decision-making bodies and possessed of a wide degree of autonomy with regard to their responsibilities, the ways and means by which those responsibilities are exercised, and the financial resources required for their fulfillment. The right of citizens to participate in the conduct of public affairs is more directly exercised at the local levels. The existence of local authorities who are given real responsibilities can provide an administrative setup which is both effective and close to the citizen. Unlike more centralized systems, local government provides for more flexible responses attuned to local needs. It opens opportunities for innovation and experimentation in policy formulation and delivery. It can alleviate the workload of overstretched central government, something which is especially important in Africa in view of the numerous development and transformation tasks that face a typical African government.
Where power is not decentralized, the struggle to control the central government becomes a matter of life and death among the political leadership. In order to promote effective governance and the inclusion of diverse peoples that typically make up an African state, it is not enough to have democracy at the national level; it must also be complemented at the subnational and community levels.
Many African constitutions do not provide for the role of traditional authorities in governance beyond recognizing them. For example the 1996 South African Constitution, in section 122, provides that: (a) the institution, status, and role of traditional leadership, according to customary law, are recognized, subject to the constitution; and (b) a traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendment to or repeal of that legislation or those customs. There is no legislation elaborating their role in relation to the modern state and its institutions. And yet in a typical African state, a large percentage of the people remain outside the formal structures of the state and rely on traditional institutions and authorities for law enforcement and dispute settlement. Rural communities, especially, tend to operate outside the formal structures of government; in times of conflict, such communities become easy targets for ethnic mobilization. Constitutional arrangements designed to implement the devolution of power to local communities in Africa must, therefore, address the place of traditional institutions of governance in modern political systems. Traditional leaders could be accommodated in various ways. For instance, at the local government level they could be incorporated to form the nucleus of that system. This could, quite conceivably, enhance the legitimacy of local government structures in rural areas, where traditional leaders could serve as a link for their people to the external world of state government. Colonial authorities were fairly successful in using traditional institutions to their advantage, and perhaps modern African leaders can learn from that experience (Lugard, 1922). Working with traditional leaders, modern government will have at its disposal the means to reach out to small communities, thus working to build national consensus and cohesion.
In the absence of legitimate local institutions, rural people are often driven to rely on informal institutions for the day-to-day ordering of their affairs and of society, especially in the area of dispute resolution (Gluckman, 1965). It would, therefore, be a mistake to sideline traditional institutions and establish wholly modern institutions that would have to establish their legitimacy with the people over time. Since democracy means involving the various communities that make up a nation in the governance of their own affairs, it is imperative that rural communities not be ignored in any democratic dispensation. The accommodation of traditional governance within the modern political systems of governance would actually enhance rather than diminish the state’s vital interests in national cohesion, public order, and stability, and would promote the establishment of an inclusive society.
While accommodating traditional structures in modern political systems, one should not ignore the fact that conditions in which traditional institutions operate today have changed from those in which they were developed, and therefore these institutions need adaptation. Further, these institutions can at times be oppressive, exploitative, discriminatory, and intolerant, especially to women and children (Nhlapo, 1991). This means that, as they are integrated into the modern political system, they also need to be reformed. Since the goal is to establish a democratic order, the need to incorporate traditional institutions into the modern political system cannot take precedence over the needs of a democratic society. With regard to aspects of these institutions that are gender discriminatory, governments must address the areas that need reform, discard the discriminatory aspects of traditional institutions, and confront the traditional values that underpin gender discrimination and authoritarianism.
The success of a constitution-making process can be viewed from a number of angles. Whether a constitution remains in force and wins the respect of political elites and the populace is one measure of success. Does the constitution last? Does it really work? A successful constitution is one that is able to accommodate political, social, and economic change. It should provide a framework for resolving disputes and framing policy in ways that minimize violence even in times of political and economic difficulties. The management and accommodation of diversity in a national state depends on the development of a political system that is inclusive and, tolerant, rejects authoritarian rule, is based on the rule of law, and gives people a sense of ownership of the political process. A constitution that aspires to be inclusive, legitimate, and authoritative as the fundamental law of any state in Africa, if it is to succeed, must address the issues identified in this article. A constitution affects the lives of all citizens and ought, therefore, to address the concerns of all citizens regardless of their ethnicity, color, gender, and station in life. As the late Chief Justice of South Africa, Ismail Mohammed, observed, “The constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed, it is a ‘mirror reflecting the national soul,’ the identification of the ideals and aspirations of a nation; the articulation of the values binding its people and disciplining its government” (State v. Acheson, 1991). A constitution ought therefore to be an autobiography of the nation. It should reflect the lives of all its citizens, young or old, male or female, rich or poor, straight or gay, regardless of race or ethnicity. It should reflect the diversity of the state. People should be able to look at the constitution and see themselves and their lives within its pages and their protection within its words. The people must feel a sense of ownership of the document and see themselves and their history in it before they can respect, defend, and obey it. They can only feel a sense of ownership if the process that produced the constitution was guided by dialogue, consultation, debate, and participation by all citizens.
The transition from authoritarianism to greater participation in political decision-making requires determined long-term efforts and a huge investment in the development of institutions that can promote greater participation in the state’s governance processes and a culture of tolerance of diversity. African states have to engage in deliberate transformation of the societies inherited from colonial rule. In the transformation process, nostalgia for the African past has to be tempered with reality. It must be accepted that precolonial African societies and their institutions cannot be recreated to govern modern African societies. Africa has to work with existing conditions and move on from there. The past can only secure the future if understood and applied in the context of today. It must be remembered that stability in a nation-state can only be sustained if the government of that nation has a solid foundation of respect for constitutionalism and, fundamental human rights that encompasses a willingness to coexist with differences and a culture of respect for the rule of law—which must be drawn up for the protection of all and must act as a safeguard, assuring the economic and social well-being of all its people.
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