Comparative Reflections and Tentative Evaluation

I turn now to an attempt to compare and tentatively evaluate these experiences, within the framework of the proposed deeply contextual and incremental approach to African constitutionalism.

To begin with some general framework, Ghana, Guinea, Rwanda, Tanzania, and Uganda came into being as unified states as result of colonial consolidation of control over territories that were previously governed in a wide variety of centralized and decentralized regimes. In fact, these countries were governed during their colonial periods as parts of a wider colonial region, rather than as discrete or separate political entities.

The main difference between those Western countries and postcolonial African states is probably that the former were dealing with their own homegrown solutions to constitutional problems, rather than attempting to implement a “formula” that was imposed from outside. Even in the case of the United States, the constitutional framework being implemented was a continuation of the Western intellectual tradition which early Americans brought with them to North America. In contrast, African countries have to deal with a peculiar accumulation of complex problems, some arising from their particular traditional political situations, others inherited from the colonial era, as briefly highlighted below. While most African countries were experiencing centrifugal forces dictated by a need for national cohesion, they were also being pulled apart by the lure of Pan-Africanism, or regional and continental unity. For example, between 1960 and 1963 Guinea and Ghana united with Mali, then under Modibo Keita, a like-minded ruler, to form what was called the Union of African States (UAS).

Ethiopia came into existence more than half a century earlier through what might be called “African colonialism” of Emperor Menelik II, but the modern constitutional history of the country is much more recent, if one excludes the 1931 document, which consisted of seven articles whose implementation was seriously interrupted by the Italian occupation in 1935 and the exile of Emperor Haile Selassie until the early 1950s. However, the constitutional experience of the country is still dominated by the legacy of that imperial past, including the underlying cause of civil war, persistent conflict with Eritrea, and intense ethnic rivalries and conflict, in addition to problems of weak basis of constitutional governance and general underdevelopment shared with the rest of the continent. Some of the tensions in Ethiopia’s relations with Eritrea, which was for a long time a province of Ethiopia, can be traced to Italian incursions into Ethiopia, from 1882 to 1930s, often using Eritrean forces (Negash 2000: 7). In other words, although it was not colonized like other African countries, Ethiopia is as much a postcolonial state as any of them.

Some of the common difficulties facing constitutional development in all six countries include weak state formation and lack of human and institutional resources for constitutional governance under the rule of law; mutually exclusive and antagonistic ethnic identities constructed or cultivated by colonial administrations that continue to undermine the basis of national unity and political stability; and the ambivalent role of international actors and forces, due to competing ideologies and power politics of the cold war era, global capitalism, and the more recent democratization trends.

To begin with, the way these countries were rapidly rushed into single states and propelled into juridical sovereignty without being empirically sovereign on the ground, as explained in chapter 2, meant that none of them were ready for independent statehood. On the contrary, the only experience their independence leaders and general population had with modern state management under colonial administrations was that of oppressive authoritarianism and unaccountable government that manipulated ethnic and religious divisions among the population for its own narrow political interests. The only knowledge early African nationalists and founders of African states had of the rule of law was as a tool for the suppression of political dissent through indefinite detention without charge and forced exile, and exploitation and pilferage of state resources which would then be repatriated to the metropolis. The counter-insurgency measures employed by the colonial authorities in putting down civil unrest involved “political arrests, farcical public court trials, resulting in manipulated guilty verdicts calling for jail terms for convicted nationalist leaders” (Assensoh 2001: 67). It is true that, a chosen few like Kwame Nkrumah and Jomo Kenyatta had lived and studied abroad, mainly in Western countries. But the negative experience those African leaders had there, like Nkrumah’s with pre-civil rights racism in the United States and Kenyatta’s in Britain, may have been counterproductive for their perception of constitutionalism and made them susceptible to totalitarian socialist ideologies fashionable at the time.

None of the countries discussed here, or any African state for that matter, inherited a functioning and credible domestic judiciary or security apparatus that was accountable to political leaders at independence. Most countries have therefore continued to rely on foreign judges for decades, some up to the present time. Such judges mostly come from former colonial countries, or the weak clubs of formerly colonized countries such as the British Commonwealth and what is loosely referred to as la Francophonie. Accused persons have no access to legal assistance, whether government provided or free legal aid. Police forces and prison services are poorly trained, do not usually understand the law they are supposed to uphold, and are generally incompetent and corrupt. The aggregate of these shortcomings results in a pervasive culture of arbitrary authoritarianism. A sense of ‘business as usual’ enabled generations of ruling elites and government officials to continue to enforce the same oppressive security laws, through the same authoritarian institutions, in order to perpetuate their own power and avoid responsibility for corruption and incompetence. This was as true of Kwame Nkrumah of Ghana, Ahmed Sekou Toure of Guinea, Sanni Abacha of Nigeria, Milton Obote of Uganda, among many others, as it is still true now (at the time of writing in 2005) of Robert Mugabe of Zimbabwe and Omar El-Bashir of Sudan. Mostly illiterate, politically uninformed, disempowered at the national level, and inhibited by parochial traditionalism, African populations apparently tended to accept arbitrary and authoritarian government, violations of human rights, and general economic and social hardship as simply the way things are supposed to be.

African dictators also coopted individuals from their own ethnic groups, probably to ensure personal political loyalty, reinforcing the notion that the emerging “national” state “belonged” to a particular ethnic community, to be defended as such by that group and resisted by other communities for the same reason. The 1994 genocide in Rwanda is a tragic and extreme manifestation of the common problem of mutually exclusive and antagonistic ethnic identity that was constructed or cultivated by colonial administrations to facilitate their own rule. Whether under the British doctrine of indirect rule or the French principle of assimilation, colonial administrators tended to cultivate and manipulate local ethnic and/or religious affiliations into rigid and closed categories. As noted in Chapter 2, these features of colonial expediency that often distorted traditional, relatively more democratic institutions and consolidated rigid social and political stratification in the past continue to seriously undermine political stability and constitutional government after independence. Moreover, such underlying tensions are sometimes manipulated by various elite groups to instigate and sustain civil strife and war, as happened in Nigeria, Kenya, Rwanda, Ethiopia, Sudan, and Uganda and, more recently in Sierra Leone and Zaire, to mention but a few examples.

The ambivalent influence of international actors and forces was reflected in the ideological and geopolitical competition of the cold war, the drastic “experimentation” with Pan-Africanism and Non-Alignment (resisting alliance with either side in the cold war) of Gamal Abdul Nasser of Egypt, Nkrumah of Ghana, Kenneth Kaunda of Zambia and Julius Nyerere of Tanzania. Those same leaders and others, like Sekou Toure of Guinea and Jaafar Numeiri of Sudan, also engaged in experimentation with ideological notions of state socialism and/or one-party state. Such one-party regimes claimed that the challenges posed by ethnicity, poverty, ignorance and disease were analogous to the kind of emergencies that prompted developed countries to declare emergency powers—that these mutually reinforcing crises were a threat to national security. In Ghana, Nkrumah’s regime eliminated political parties by using the law to proscribe opposition parties like the Muslim Association Party, the Northern People’s Party, and the Asante-dominated National Liberation Movement in the late 1950s. In Guinea, the PDG claimed that the single-party state was in fact the actual realization of independence, because, as a mass party truly representative of the nation, PDG was Guinea (Winchester 1995: 349).

Similar ambivalence also resulted from global geopolitical competition between the Western and Soviet blocs during the cold war, and sometimes among Western powers like France and the United States in the Great Lakes region. Ironically, Western powers condoned and sometimes even encouraged military coups and oppressive regimes in the name of combating the spread of Marxist-Leninist ideology in the region. Examples include al-Numeiri in Sudan, Amin in Uganda and Mobutu Sese Seko in Zaire. Although not strictly speaking a military regime for its total disregard of democracy, the apartheid regime in South Africa falls in this category. The ambivalence continued in the post-cold war period through the conflicting agenda of the global capitalism and superficial political liberalization as experienced by Ghana during the latter part of the Rawlings years, Kenya under Daniel arap Moi and Uganda under Yoweri Museveni, among many countries over the last decade of the twentieth century.

In general, the usual difficulties facing all emerging states that were artificially created by colonial administrations were frequently manipulated by some of the first generation of independence leaders to justify suppression of political opposition, usually followed by a bid to extend their hold on power indefinitely, all in the name of national unity, stability and development. This was done by Ahmadou Ahidjo in Cameroon, Nkurumah in Ghana, Sekou Toure in Guinea, Moussa Traore in Mali, Ngwazi Kamuzu Banda in Malawi, Obote in Uganda, and Kaunda in Zambia, among others. These leaders manipulated the African cultural identities of their populations by adopting fancy titles for themselves, including African traditional veneration monikers like Osagyefo, Ngwazi, Mzee, or Oga. The military dictators also often promoted themselves; Amin called himself Al-Haji Field Marshal Dr. President Idi Amin Dada, Conqueror of the British Empire, while Mobutu’s full title was Mobutu, Sese Seko Kuku Ngbeandu Wa Za Banga, meaning the “all-powerful warrior who, because of his endurance and inflexible will to win, will go from conquest to conquest leaving fire in his wake.”Although a direct connection cannot be empirically established, the model of Emperor Haile Selassie’s monarchy in Ethiopia may have been influential as the only “authentic” African imperial leader, particularly in this early stage of African independence. That African dictators often took a leaf from each other’s book is not far-fetched; Malawi Banda lived in Nkrumah’s Ghana before returning to his country, and appears to have brought with him Nkrumah’s draconian detention laws (Assensoh 2005: 64–65), while Uganda’s Amin learned his brutality uninhibited as a colonial soldier fighting Mau Mau in Kenya.

The high-handedness of African leaders became so pervasive that military intervention through coup d’etat became the only option for getting rid of them. In many countries, armed forces seized power under some pretext of combating corruption, restoring “genuine” democratic government, or saving the country from total economic collapse. This happened with Jerry Rawlings in Ghana, the Military Committee for National Recovery (CMRN) in Guinea, and Amin in Uganda. Military intervention by self-appointed savers or ideologues has occurred repeatedly in some countries, like Nigeria where the first protracted and complex military coup of 1965 brought Yakubu Gowon to power, setting off a series of coups by military commanders over the next two decades, and in the case of Ghana three times by the same commander, Rawlings. Military coups were also used to initiate ideological regimes, like that of Mathieu Kerekou’s Marxist-Leninist People’s Revolutionary Party of Benin from 1977 to 1990, and the Marxist-Leninist Program of National Democratic Revolution of Ethiopia of the Derg in Ethiopia from 1976 to 1991.

Comparative reflection and evaluation of African constitutional experiences can be approached from a variety of perspectives. But I will limit myself here to a few comments on some pertinent questions to clarify some aspects of the thesis and analysis of this book. A broader or more comprehensive discussion which requires a high degree of detail and focus on individual cases and specific periods (like Ghana or Uganda during the 1960s-1980s) would be appropriate for a different kind of analysis from the one I am attempting here. The first set of questions relate to whether any type of government (military or civilian, single or multiparty state) experienced by each country can be evaluated from a constitutional point of view, and by which standards such an evaluation can be made? That is, whether a regime was good or bad as a matter of constitutional government, and not by some other measure like maintaining law and order or reducing the foreign debt of a country. This is not to suggest, of course, that such other criteria are invalid or unimportant, but only that they are not the subject of this study. Second, if some regimes were better than others, as one would expect, how were the relatively bad regimes allowed to govern or tolerated by the population at large? Third, whatever answers one may find regarding the first two questions, is it true that all these experiences, good and bad, were necessary, or could the bad ones have been avoided by the countries that experienced them?

On the first question, the constitutional measure of any type of government must be its fidelity to the principles of constitutionalism as outlined earlier in this book, basically to what extent it is accountable to the general population, attentive to their well-being, and respectful of their human rights. In other words, the measure must be the extent to which the government has realized and safeguarded the right of the people to self-determination in terms of promoting general development, public security, democratic self-government and respect for human rights. The application of such indicators, however, should take into account the processes of securing institutionalized and sustainable development of these features, not simply their presence or practice at a specific point in time. Thus, some military governments or single party states may express a willingness to be accountable, and do in fact take steps to improve the protection of human rights, quality of life and public safety for the general population. For instance, General Olesegun Obasanjo of Nigeria became the first military man in Africa to relinquish power to civilian rulers in 1979, but the civilian regime of his successor Shehu Shagari became so corrupt and inept that it literally invited the military to take over.

The fact that Museveni’s faction of the Uganda National Liberation Front (UNLF) and the Ethiopian People’s Revolutionary Democratic Front (EPRDF) seized power through armed rebellion and protracted civil war does not necessarily deem these regimes to be inherently and permanently incompatible with constitutionalism. The question should be how these governments behaved after coming to power, rather than simply the manner in which they seized power. But this perspective should not be assumed to automatically yield categorical evaluations, because the whole premise of the incremental success approach adopted in this study is to consider each stage as part of the constitutionalism process for the country in question. For nearly two decades, Museveni curtailed democratic freedom by proscribing political parties and favoring his non-party movement system. However, it can also be argued that Uganda has in the interim recovered from years of devastation, and established a minimum foundation for competitive politics. Conversely, one can also note the failure of the regime to fully transform into constitutional democratic government. Similarly, the EPRDF has made important strides in constitutionalism, including the promulgation of one of the most progressive constitutions on the continent. Yet, serious concerns can be raised about the successful transition to constitutionalism in view of the 2005 elections and their aftermath. While there is no final judgment when constitutionalism is seen as a constant work in progress, interim or tentative evaluation is still important for corrective strategies and informing current practice.

Since some military or revolutionary regimes may do relatively better than some civilian governments elected through fair and open elections in a multi-party state, the question must therefore be whether the implementation of constitutional principles is likely to be as institutionalized and sustainable under a military regimes or single party state as under civilian democratic government. A negative answer is clearly indicated by the essential nature of military regimes which rely on the force of arms to seize and keep power, or single party states which rely on oppressive measures to suppress dissent and exclude electoral competition. This is not to say that either type of regime does not need some degree of popular acceptance and political support. Rather, it is that the primary means of political control by such regimes are more coercive than voluntary, and that dictators are more likely to resort to violent suppression of political opposition than to give up their control of the state. In contrast, a civilian elected government is by definition more dependent on acceptance and support by the public, though it may use force to keep the peace or combat an armed rebellion. In other words, peaceful pressure by public opinion is more likely to influence an elected government than a military regime, especially in the long term. If that is the case with military regimes and single-party states, as compared to elected governments, then why or how do the former succeed in seizing or holding power in so many African counties? Why do people accept or tolerate military rule or single party states despite their inherent incompatibility with constitutional government?

A comprehensive or exhaustive response to these questions will require a detailed discussion of a wide range of issues against the background of a lot of factual information for each country and specific period of time. In any case, whatever conclusions I might draw from that type of analysis may not be widely accepted because such assessments cannot be isolated from the ideological orientation, value judgment, or personal bias of the researcher. For example, much of the debate about the utility or rationale of military regimes and single party states in the 1970s and 1980s involved the notion of “trade-off” of constitutional governance for national security or development—the idea that a country has to postpone the implementation of the former in order to achieve the latter. In my view, the notion of trade-off in this context is false and counterproductive: national security and development must be founded on constitutional governance if they are to be worthwhile and sustainable at all. It is also clear to me, however, that while I can argue for this response on the basis of my assessment and evaluation of the available evidence, such an argument is ultimately grounded in my own ideological orientation and value judgment. Others may take a different view of the same evidence, or blame some internal or external factors for the failure of one regime or another to deliver on its promises. Instead of engaging in such a protracted debate which will probably lead to conclusions others will probably reject as too subjective or biased, I wish to make a very limited, and hopefully readily acceptable, twofold proposition.

The first part of my limited proposition is that, whatever general explanation one may be inclined to accept, it seems that part of the reason for the willingness of Africans to accept or tolerate military regimes or single-party states was a combination of four elements, namely, frustration, hope, fear, and justice. That is, as they became increasingly frustrated by the decline in their material well-being and safety, and/or deterioration of the country as a whole, Africans were willing to give a military regime or one-party state a chance to govern, in the hope that it might do better than the previous regime, in addition to the fear of the harsh consequences of opposition. People may not be consciously aware of these factors as such, and their role and relative impact would probably vary greatly from one person or group to another, one setting to the next, as well as over time in the same setting. The frustration with the incompetence and corruption of an elected government may have been the primary or at least initial motivation for welcoming a military regime which is hoped to do better, as happened repeatedly in Ghana, Nigeria, and Sudan. Aware that thieves, torturers, and murderers go scot-free during dictatorship, Africans have tended to welcome the military in the hope that the executions of national leaders that invariably follow offer some kind of justice, and Africans have often expressed this idea of justice in biblical terms; he who lives by the sword dies by the sword. As the hope fades away, and the military or single-party state turns out to be as incompetent and corrupt as the civilian elected government it replaced, fear of harsh repression of political opposition may become the main factor in the acquiescence to being ruled in that way.

The second part of my limited proposition relates to the question of how to break the inertia in order to achieve the replacement or transformation of the military regime or single-party state into a multi-party, democratically elected, and constitutionally accountable government. Since this repeatedly happened in many African countries by the early 1990s, the question can also be framed in terms of explaining the rise of resistance that ultimately results in this replacement or transformation. Again, seeking a comprehensive or definitive answer to either formulation of this question will probably require engaging in a protracted and value-loaded debate drawing on the specific details of each case. On the one hand, for instance, one can emphasize the personal charisma and political skills of military commanders turned civilian rulers like Kerekou of Benin and Rawlings of Ghana, or leaders of single-party states like Obote of Uganda, who managed to get democratically elected after their regimes ended. On the other hand, it can be argue that such “survivors” benefited from the restrictions they had imposed on political activities during the dictatorships that inhibited the emergence of even more charismatic and skillful leaders and supported by sufficiently experienced organizations to defeat the former dictators.

In all cases, it seems to me, the “frustration, hope, fear, and justice” combination of factors that permitted or sustained military rule and single party states reflect an underlying lack of confidence in constitutionalism, impatience for it to bear worthwhile fruits in due course, and unwillingness to risk personal safety or other hardship in its defense. Since local developments in the late 1980s and early 1990s leading to the replacement or transformation of unconstitutional regimes clearly indicate that people were willing to take those risks, the question becomes how this happened and why. What made people willing to demand constitutional governance, despite earlier experiences indicating it to be likely to produce incompetent or corrupt governments? Why did they come to accept the costs of political opposition, as the ruling regime probably grew more brutal in its desperate effort to keep power? Such questions, with their obvious policy implications for the prospects of constitutionalism in African countries, directly raise the question of the cultural or religious legitimacy of constitutional principles. The claim here is that popular perceptions of the legitimacy of constitutionalism will influence how people relate to these principles, whether they will be willing to wait for good outcomes and risk hardship in their defense of constitutional governance. It is from this perspective that I think it is critical to examine the role of Islam in the constitutional development of African Islamic societies, which will be attempted in the next two chapters.

In conclusion here, it seems clear to me that, while each situation should be viewed as a distinctive experience in the incremental success of constitutionalism in that particular setting, comparative reflection and tentative evaluation are possible and necessary for guiding strategies to support and sustain the relevant principles and institutions in each country. While no experience should be subjected to an arbitrary dichotomy of “success or failure” according to some preconceived notions of where it is supposed to be along the way to perfect or total constitutionalism, it is indeed necessary to draw lessons in order to improve “performance” in the future. Otherwise the process-based incremental approach I am proposing can be used to justify deterministic complacency which enables the elite in power to claim that nothing needs to change or can be done to improve the situation. The fallacy of that logic is that one will not be able to tell in advance whether all that can be done has in fact been done. In other words, making a country’s constitutional experience its own model and standard of evaluation does not provide any justification for failure to develop and implement appropriate policies to improve the situation. Every effort must be made to understand the process and develop and implement reforms because that is the only way to know what we need, which direction to take, and how to get where we need to be.