A Basic Understanding of Constitutionalism

The basic understanding of constitutionalism I am working with here is premised on two propositions. First, various conceptions of constitutionalism should be seen as complementary approaches to an ideal, to be adapted to different conditions of time and place, rather than as representing sharp dichotomies or categorical choices.

Second, the construction of general principles (or universal features) of this concept should emphasize their role as means to the ends of successful and sustainable constitutional governance in country-specific contexts, while emphasizing the need for internal consistency of the relationship between ends and means. The ends of popular sovereignty and social justice, for instance, can only be achieved through the actual application of these principles, rather than by postponing application until “ideal” conditions for it have been established by some self-proclaimed ideological elite as has often happened in recent African experiences.

The history of constitutionalism is often traced back to ancient Greece (Gordon 1999), but real sources of the modern concept are probably much more recent, including the Virginia Declaration of Rights of June 1776 in what came to be the United States of America, together with earlier documents like the English Bill of Rights of 1689. There were other constitutional documents in the context of the American revolution, such as those of New Hampshire (January 5, 1776) and South Carolina (March 26, 1776). But the Virginia Declaration of Rights became renowned for appealing to the sovereignty of the people, universal principles, and inherent human rights, and for proclaiming a written constitution “as the basis for the foundation of government” (Thorpe 1909: 3812). It also enumerated, for the first time, the responsibility and accountability of government, the separation of powers, and the idea that constitutional government should be a limited government. Subsequently, the concept of constitutional government was further refined in the French Declaration of Rights of Man and Citizen and in the American Constitution which has since been replicated many times all over the world. This emerging global consensus toward “world constitutionalism” (Ackerman 1997) lends credence to Dworkin’s view that all members of the community ought to be treated with equal respect and concern (1977, 1996, 2000).

Put in elemental terms, therefore, constitutionalism is a framework for the mediation of certain unavoidable conflicts in the political, economic, and social fabric of every human society. This proposition assumes that conflict is a normal and permanent feature of human societies, and defines constitutionalism in terms of being a framework for mediation, rather than permanent or final resolution of such conflicts. But since struggles over power and resources cannot be practically mediated by all members of any society, there has to be some form of delegation from those who, as a practical matter, cannot be part of the daily and detailed processes of administration and adjudication. At the same time, however, those who have to delegate to others also need to ensure that their interests are served by this process by participating in the selection of delegates as well as in holding them accountable to ensure that they act according to the terms of delegation. These pragmatic considerations underlie the basic constitutional principles of representative government, including bureaucratic aspects of democratic administration of public affairs, which is fully accountable to its citizens. The above-mentioned premise of consistency of ends and means requires the constant verification of the validity of the structures and operation of the processes of representation and accountability, whereby the integrity and efficacy of these processes is conductive to the incremental success of constitutional governance over time.

For the appropriate processes to work properly in each setting, the general population must be able and willing to effectively exercise its powers of delegation as well as accountability of public officials, whether elected or appointed. There are many aspects to such ability and willingness, some relating to the population side while others pertain to the government and its organs, or the conditions of the interaction between the two. On the first count, for instance, the population at large must be capable of exercising intelligent, well-informed, and independent judgment about the ability of its representatives and officials to act on its behalf, and to verify that they do in fact act in accordance with the best interest of the population.

Constitutional governance would therefore require respect for and protection of collective as well as individual rights not only because the two sets of rights are interdependent in that one cannot be effective without the other, but in the sense that the specific meaning of each one draws on the content of the other. For example, individual freedoms of opinion, belief, and association are necessary for the realization of collective freedoms of ethnic, religious, or professional/trade union associations, whereby the freedom of the individual person is meaningful within the context of the relevant group. However, since rights are ultimately tools for realizing the objectives of social justice, political stability, and economic development for all segments of the population, they should be perceived as dynamic processes rather than abstract legal rules. For instance, the content and rationale of a collective right to the use of language or protection of cultural resources of an ethnic group can shift and change in response to internal transformation within the group or challenge from outside.

However, such rights as freedom of expression and association are not useful without the institutional means for exercising the sort of judgment and continuous accountability of government officials envisaged by the principle of constitutionalism. To begin with in this regard, officials must not be able to obscure their activities or hide their excess or abuse of power, hence the general need for transparency of official action.

But what is probably the most critical aspect of constitutionalism relates to subtle and rather mysterious psychological and sociological aspects of what I referred to earlier as sufficiently strong civic engagement by a critical mass of citizens. These aspects are difficult to quantify or verify, except perhaps in terms of outcomes that indicate the success or failure of constitutionalism in a given context. They include the motivation of citizens to keep themselves well-informed in public affairs, and to organize themselves in nongovernmental organizations that can act on their behalf in effective and sustainable ways. People are unlikely to assert and pursue avenues of accountability and redress without the material and human resources as well the psychological and cultural orientation to do so. Public officials and the agencies and institutions they operate must not only enjoy the confidence of local communities, but also be familiar, friendly, and responsive when approached. This is the practical and most foundational meaning of popular sovereignty, whereby a people can govern themselves through their own public officials and elected representatives. Constitutionalism is ultimately concerned with realizing and regulating this ideal in the most sustainable and evolving manner possible, whereby the combination of theory and practice of this concept is capable of ensuring self-determination now and responding to changing circumstances in the future.

To illustrate some of the preceding features, take the need to mediate the tension between general principles and specific determinations in individual cases involving allocation of power or resources among social and political actors. Whereas general principles and policies tend to push for predictability and consistency of outcome in similar instances of conflict or when applied to issues that are likely to arise frequently, individual cases call for particularistic determinations that respond to claims of the specificity of the conflict at hand as distinguished from others. Since each type of function requires a different set of skills and institutional arrangements, it may be necessary for them to be performed by separate officials and organs, observing their distinctive procedures in accordance with the rationale of each function. This “separation of powers” is often taken to mean that legislative organs set public policy and enact laws of general application, executive organs implement those policies, and the judiciary interprets and applies the law in adjudicating disputes among or between organs of government, individual and groups of citizens.

But the lines of separation of powers are rarely categorical in theory or settled and neat in practice. The need for practical mechanisms to elect or appoint officials, including senior judges, and the institutional requirements of accountability in the daily operation of government agencies, create risks of either persistent deadlock or excessive accommodation among supposedly “separate” organs and functions of government. For instance, failure to limit or regulate the power of a supreme or high court to interpret constitutional provisions or adjudicate certain types of disputes may create risks of political manipulation or deadlock in the appointment of judges. The more serious or far reaching the consequences of judicial adjudication of controversial public policy or political issues, like the right to abortion or which candidate won the state of Florida in the 2000 presidential elections in the United States, the greater the risks for the independence of the judiciary in the future. Such risks can be diminished through the stronger development of the relevant institutions or more engaged public opinion, but that may not necessarily resolve the dilemmas of proper and appropriate separation of powers.

For example, a stronger judiciary may be tempted to tackle more controversial or politically sensitive issues, and it may be encouraged and supported in doing by a well-informed and active citizenry. But that may not in fact be wise or prudent for the judiciary—what may seem like a clear victory for one side of a controversy can turn into a defeat or create greater constitutional or political problems in the future. The judicial legalization of abortion, for instance, may provoke a political backlash, resulting in the appointment of ideologically driven judges who can then shift the whole political and social policy of the country in the opposite direction.

The preceding remarks emphasize the importance of such general constitutional principles as representative government, transparency and accountability, separation of powers and independence of the judiciary. But this is not to suggest that such features must all be present in particular models all at once for constitutionalism to be successfully implemented in a country. In fact, such principles and conditions can only emerge and develop in a variety of models through a process of trial and error over time (McHugh 2002; Franklin 1995; Rosenfeld 1994). The rationale and purpose of representative government, transparency, and accountability can be realized through different models, such as the parliamentary system of the United Kingdom or the presidential system in the French or American style. As I highlight in Chapter 6, these models achieve transparency of governmental practice and political and legal accountability in different ways. The principles of separation of powers and independence of the judiciary are implemented and safeguarded in various ways specific to each constitutional model. Each model of these successful constitutional experiences works in its totality, though not always, and is transformed or adapted in its own ways in times of crisis, as illustrated by the series of French constitutions adopted during the twentieth century.

From this perspective, constitutionalism is not only succeeding in African countries “incrementally” through practice, as I will attempt to show, but cannot succeed in any other way there or anywhere else in the world. The underlying rationale and objective of this book is to clarify and illustrate the application of this notion of “incremental success,” in order to facilitate stronger and more sustainable success for African constitutionalism. But it may be helpful at this stage to introduce the other main theme of the book, namely, the contingent role of Islam in either promoting or obstructing this process. Including this perspective, however, is not intended to shift the focus of the book as a whole from African constitutionalism to an Islamic discourse around this principle. The former remains the primary subject, while the latter is only a way of clarifying and illustrating the application of the general, more inclusive theory of constitutionalism in African settings. This clarification and illustration begins here by contrasting traditional Islamic thought on the subject with the preceding outline of modern constitutional principles.