Constitutionalism Part III: The Case for African Constitutionalism

As the West actively seeks to endorse and impose constitutions in countries around the globe, there lies a fundamental element of debate for application of a constitution in certain areas of the world. As the State Department notes, the biggest export of America is their constitution around the world; setting up free liberal democracies here and there while granting primitive tribal societies a sense of ‘universal rule of law.’ The African constitutional experience is far different than the European experience. Through my research however, I have concluded that African countries, although different from European countries, should still adopt some form of a constitution in order to 1) establish a framework for development and progress, through the rule of law, internally and externally, 2) improve the well-being of the state, and 3) appeal to the global community.

One of the primary differences between European constitutions and African constitutions, opponents of adopting constitutions in Africa argue, is that the consent of the people or the pull of ethnicity is far greater in Africa than it is in Europe. While this may have some truth to it, the argument about this being a main reason for not adopting a constitution is faulty. The fact of the matter is that the US is the most diverse country, culturally and religiously, yet our Constitution remains in tact. The initial stages of implementation are difficult, yes, and blood may be spilled, but for the long haul the co-existence of a diverse population and a constitution is very practical indeed. The Europeans underwent an easier time adopting it, since they are all usually of one nationality, but this fact alone should not impede African countries from establishing one for itself.

Opponents of my theory also argue that when constitutions are imposed, patrimonialism, which is essentially authoritarianism, exists in the African hierarchy and the rule of law is lost. But what can we say about this absence of the rule of law? Could it be a fracture on the actual constitutional-making process? If the state created an institution which provided checks and balances with a strong independent judiciary, the executive branch could not abuse his power. The framework thus created, enables these countries to develop a sense of national unity and national strength which is facilitated by grossing a GDP and accepting globalization as a form of enlightenment and necessity. The abuse of power can be curbed by reforming the process to a different way than the Europeans; perhaps a more gradual process. Internally they succeed and externally they can open trade with other nations as well.

What of the notion that constitutions contribute to the well-being of the state? Author Yash Ghai states "…neither the substance nor the ideology of the rule of law is necessary to governments and their economic systems in Africa…" Yet more often than not, we find that the countries with unrestricted trade and constitutional governments enjoy higher economic standards of living. This is to say that most of the European countries that parted from communism enjoy great economic success because of the established supreme law of the land. Without this symbolic and literal document, the country is always up for a power struggle and the well-being of the state is decreased. In other words, Ghai fails to mention that without an economic system or rule of law, that sheer anarchy and absolute freedom will ensue, thus giving rise to violence, subjugation, and ultimately self-destruction.

Although opponents make an interesting case for Africa’s self-reliant status apart from the rise of constitutionalism, they fundamentally fail to understand that in a growing, more interconnected world, it’s essential to have an economic system and a political ideology driving the formation of a country. Without a constitution, the well-being of the state, the internal and external structure, and the global community will all be neglected with severe consequences in return.