Dialectic of Universality and Relativity of Constitutionalism

In light of the preceding two sections, it may be useful to reflect on the philosophical and political assumptions of the concept of constitutionalism and its application in different parts of the world.

An underlying tension regarding concepts like “constitutionalism,” “democracy,” or “human rights,” relates to the relationship between their formulations in Western societies, where they developed and were applied earlier, and their more recent application elsewhere, as to African societies for our purposes here. That is, do such concepts, as defined by the experiences of societies where they were first developed and established, have universal applicability so that they can be “transplanted” into other settings? In my view, such concepts can be accepted as viable philosophical, political, and analytic categories for evaluating the experiences of African societies, provided they are open to contestation and reconceptualization from the perspective of those societies. It may therefore be useful to clarify this dimension of the ambivalence and contingency of the application of such concepts in different settings.

To being with, one should avoid asserting a categorical dichotomy between Western and non-Western societies.

From this perspective, I hold that the universal validity and applicability of concepts like constitutionalism is a pragmatic necessity in view of the universalization of the European model of the nation-state through colonialism and postcolonial relations. This model is likely to continue as the dominant form of political organization in national politics and international relations for the foreseeable future. Even globalizing trends and transnational integration, like the European Union, still evolve and operate through the agency of the territorial state, often facing strong resistance from the proponents of traditional notions of ‘national’ sovereignty. The persistence of these realities require the development and implementation of concepts like “constitutionalism,” “democracy,” and “human rights,” which have been found to be necessary for regulating the powers of the state, and organizing its relationship to individuals and communities who are subject to its jurisdiction.

Accordingly, it would be desirable to articulate some “universal” principles around each of these concepts as political and philosophical parameters for domestic territorial and international practice.

Whatever level of development or degree of clarity may be achieved through that process of theoretical universalization, concepts such as constitutionalism must still be specified and adapted for local application in a given setting. That is, any candidates for “universal” principles of constitutionalism will need to satisfactorily answer the questions and concerns arising from the socioeconomic and political context, and cultural traditions of each time and place. It logically follows from this requirement of adaptation of universal principles to local context that some of them may or may not work in relation to a specific place at a given point in time. Moreover, this failure of adaptation may be at any point in a continuum, from one or two minor differences regarding practical arrangements, to incompatibility on fundamental or substantial aspects of constitutionalism. Differences or variations in practical arrangements for such matters as separation of powers or judicial review may be expected and acceptable, while failure to acknowledge the need for separation of powers or judicial review may be tantamount to repudiation of the core of constitutionalism.

As a practical matter, at what point in an analysis can one judge that the local adaptations of universal principles of constitutionalism have failed, and what does that mean? For instance, can one declare that constitutionalism itself has failed in Sudan, which has been ruled by military and single party regimes since independence in 1956, except for a total of eight years of quasi-constitutional democratic governance? To what extent would it be a failure of the concept of constitutionalism itself to provide for, or be sufficiently adaptable to, such situations? Which criteria or indicators is one applying in evaluating the success or failure of the experiences of various countries? Should it be the same for all, or devised according to the context and experience of each country? Does responsibility for the failure lie with various groups of ruling elites, or with the people of the country? Whoever is responsible for the failure of constitutionalism in a country, where and how can it begin to recover or improve its standing in this regard?

I propose to address these and related questions at various stages of this study, but the underlying question for most of them is whether the dialectic of universal principles and local adaptations has already been set by Western countries once and for all, or is this relationship open to other contributions? That is, are Western experiences to remain the ultimate norm or standard by which constitutionalism is judged or assessed everywhere, or do the local experiences of African countries still have an opportunity to influence the content and future development of the general theory of constitutionalism? Assuming that process remains open, who is going to “organize” or “adjudicate” disputes that arise in practice? For instance, when and how would the constitutional experiences of an African country be acknowledged as having made a contribution to relevant universal principles of constitutionalism, how are such determinations made, and by which criteria?

For instance, how are the experiences of African countries regarding customary law and traditional systems of administration to be assessed in relation to state law, courts, and administration systems? Are these indigenous elements of law and administration to be deemed inconsistent with the principles of constitutional governance, and as such to be eliminated as soon as practically possible, or should they be incorporated into the concept on their own terms. This question has always been present, at various levels of visibility among officials during the colonial period, and in public policy debates since independence in many African countries.

Part of the problem of standards to be applied in assessing the success or failure of African constitutional experiences, by whom such standards should be applied, and how, is the marginalization of African scholars in the global academy, and/or their failure to take the initiative. The reasons for either are too complex and controversial to be fully explained or discussed here, but it seems to me that they include the following factors. Since the educational systems of postcolonial African states are typically continuations of colonial education systems, Western academic disciplinary traditions of political science, history, sociology, anthropology, and so on continue to dominate. The same intellectual figures, theories, and methods that are prevalent in the Western academy are automatically adopted by African scholars and opinion leaders. These dynamics of academic and intellectual dependency are being perpetuated by the fact that African scholars tend to obtain their advanced training in Western institutions, under the supervision of Western academics. African scholars therefore continue to follow the concepts and methodologies they learned in Western universities when they return to their home countries and institutions.

Such realities of complex and multifaceted dependency persist despite the significant contributions of African and Asian scholars to knowledge, not just about their own societies but also in broader terms. These contributions have not been incorporated into the dominant scholarly frameworks of the global academy.

To highlight these issues is neither to suggest that the global academy deliberately works according to an exclusivist agenda, nor to imply that scholars in the academy (whether in the West or non-West) are not aware of and sensitive to these concerns. Rather, it is simply to note that the primary disciplines and epistemology of the Western academy continue to dominate at the institutional level as foundational frameworks for research, to the exclusion of all other contenders. It is therefore necessary, in my view, for African scholars, policy makers, and other opinion leaders to strive to diminish these dependencies and minimizing the distortion or loss associated with the postcolonial political economy of the global academy.

The thesis and analysis I am proposing in this book raise philosophical, ethical, and methodological challenges for African as well as Western scholarship in this field. At the philosophical level, there is need for formulating and developing a positive relationship among African, Islamic, and Western epistemological frameworks relevant to constitutionalism. Ethical concerns include responsibility to fairly and adequately represent the societies being studied, to recognize the autonomy of a variety of actors, how they might understand accountability or exercise political participation on their own terms. For my purposes here, the challenge includes how to critically apply a concept like constitutionalism, without reifying it into simplistic polarities of so-called African/Islamic versus Western models or experiences.