Constitutionalism Under Colonial Rule
Although some parts of Africa were colonized by European powers earlier, the high point of colonial occupation of most of the continent can be roughly divided into three phases. During the first phase, from around 1880 to the end of the First World War, the continent was partitioned among European powers.
Following the defeat of Germany in that war, its “possessions” were repartitioned and designated as League of Nations mandates, with colonial control vested in France, Britain, Belgium, and South Africa. The second phase broadly covers the period from the early 1920s to the Second World War. The third phase, from the end of the Second World War to the 1960s, overlapped with the gradual process of decolonization and achievement of political independence which continued into the 1970s, and even the late 1980s in the case of Namibia.Colonial rule is by definition a negation of constitutionalism at both the formal and informal levels of relations between political authority and the colonized population. However, as several scholars have pointed out, both colonialism and anticolonial resistance in Africa cannot be understood as monolithic or motivated by any single purpose (Collins 1994). Moreover, despite its inherently oppressive nature, colonialism did not mean that Africans were completely helpless subjects who lacked all political and economic initiative (Ranger 1994: 74; Boahen 1987: 41). In any case, one cannot overlook this critical phase in the constitutional development of each African country, whether it is viewed in negative or positive terms.
It may therefore be useful to envision two forms of constitutional development in Africa during the colonial period. The first form imposed an external alien political authority and transformed traditional political structures. Premised on notions of the superiority of European civilization, this discourse sought to render Africans subjects, not citizens, with minimal participation in political power. This form of “colonial constitutionalism,” if it may be called that, in its complex varieties of the different territories ruled by European powers during that period, was characterized by the structural denial of access to Africans to the ultimate source or bases of political power.
The second form preserved some measure of autonomy for African populations, which enabled them eventually to mobilize themselves into anticolonial resistance and develop their own nationalist movements. This is not to suggest that these two forms of constitutional development evolved separately, or were completely distinct, as they did in fact interact and overlap in various settings and over time. It is also clear that colonial policies as well as anticolonial resistance were conditioned by contextual and strategic factors that tended to generate an internal inconsistency and ambivalence on each side, and its interaction with the other.If constitutionalism is understood as the struggle of the people to challenge and secure political power, the different reactions of African populations to colonial power was certainly a continuing constitutional negotiation. In other words, according to the thesis of this book, the precolonial, colonial, and postcolonial experiences of African societies should be seen as interactive stages in the same process by which each society was constructing its own path to constitutional governance, and continues to do so into the future. From this perspective, the earlier remarks on the precolonial antecedents should be linked to the following reflections on these processes and how they evolved during the colonial phase.