Constitutionalism in Africa: The challenge of constitutional reform in pursuit of undemocratic purpo
In July 2000, African heads of state came together as the OAU and agreed the Lomé Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government,[1] following a review on the state of democracy in Africa. The Lomé Declaration was a groundbreaking statement, elaborating a set of principles underpinning constitutional government, including proper adoption of a democratic constitution, respect for the constitutional rule of law, separation of powers, and the protection of human rights. In the context of democratic renewal, the Declaration also specifically recognised the role of the opposition, the importance of political pluralism, the need for regular credible elections and the “principle of democratic change”, meaning that there should be regular turnover of government.
The Lomé Declaration was a direct response to the OAU’s concerns regarding the impact of coup d’etats across the region. In its respect for constitutional government and the rule of law, it sought to discourage the violent and/or unlawful removal of governments. Interestingly, the Declaration went so far as to explicitly describe what might qualify as an unconstitutional change in government, focusing primarily on violent overthrow, but also covering cases where a current government refused to hand over power following defeat at elections.
As the Lomé Declaration celebrates fifteen years, it is worth reflecting on the continuing relevance of the democratic principles which it espoused. Arguably, while its fundamental tenets remain highly relevant, recent constitutional phenomena in the region warrant reflection on the existing principles to assess whether they sufficiently capture the current breadth of challenges to constitutionalism in Africa.
Over the last decade or so, there has been a noticeable increase in the number of governments across Africa that have sought to use constitutional processes to extend their mandates to govern and/or to consolidate their powers at the expense of other branches of government. Whereas undemocratic processes such as coups or rigged elections were previously common mechanisms used to extend the life of governments, it is notable that the recent trend has seen governments attempting to change the “rules of the game” through constitutionally legal means – most notably by having friendly legislatures amend the constitution favourably or by having the courts interpret provisions to the advantage of incumbents.
In recent years, there has been a noticeable increase in the instances of Presidents in the region utilizing constitutional amendment processes set out in the constitution (most commonly, a super-majority vote in Parliament, without the need for endorsement by popular referendum) to amend the constitution to remove or amend existing term limits. On the one hand, proponents suggest that this allows the will of the people to be reflected at regular elections, without unfair limitation on their options; on the other hand, critics suggest that history has shown that the absence of term limits tends to lead to the long-term undemocratic consolidation of power into a single person’s or party’s hands. Currently, discussions regarding constitutional term limit amendments are underway in Benin, Burkina Faso, Burundi, Congo Brazzaville and the Democratic Republic of the Congo,[2] while they have been mooted in Sierra Leone, Liberia and Rwanda.
The increasing tendency of governments to “legally” extend their constitutional mandate to govern is one which bears closer attention. The Lomé Declaration was robust in its efforts to tackle a clear threat to democracy, namely unconstitutional changes of government, through violent or illegal means. However, the situation facing advocates of democratic governance and constitutionalism in Africa is now more complicated than that.
What does it mean for the flourishing of African democracy that constitutional amendments are being developed and approved through constitutionally legal processes, but where those amendments seek to entrench the consolidation of power in a single party or individual? How does one balance the principles of “political pluralism” and “democratic change” against respect for the sovereignty of parliament and the constitution’s own amendment processes?
History shows that without regular turnover of political parties via credible elections and/or political leadership within ruling parties, democracies risk slowly morphing into one-party autocracies. This is particularly the case in countries transitioning from conflict, for whom peaceful transitions of power may be historically unfamiliar and a genuine cause for concern amongst a segment of the populace that may prefer one-party stability to adversarial democracy. That said, should not the people be empowered with the final say on who their leaders are or has history shown that populist politics can lead to people voting against their own democratic interests such that they should be protected against their own undemocratic tendencies?
The risk posed by technically legal extensions of presidential mandates poses a subversive threat; while violent conflict may not always be an outcome from such constitutional changes, nonetheless, history has shown that the consolidation of powers into a single governing entity (eg. the President) most often leads to a narrowing of democratic space, the undermining of rights and freedoms (in particular, of opposition groups and minorities) and skewed developmental outcomes.
Whereto then for constitutional practitioners and the African Union? Recognising that 2015 heralds the 15 year anniversary of the Lomé Declaration, this could perhaps be an ideal time for the AU, Member Government and the people of Africa to reflect again on constitutionalism on the continent. 2015 could perhaps be used to launch a reflection across the region on constitutional opportunities and threats, with a particular focus on democratic transitions of power and term limits. Regional and national dialogues across the continent could be initiated to bring the voices of ordinary Africans to bear on this core set of questions about what type of democracy people want.
[1] AHG/Decl.5 (XXXVI), http://www2.ohchr.org/english/law/compilation_democracy/lomedec.htm.
