Precolonial Antecedents

To elaborate on some of the preceding reflections, I will highlight some ideas and institutions of precolonial African societies on which present societies can draw in developing their respective constitutional experience.

Wiredu, a Ghanaian philosopher, centers his analysis of decision-making by consensus in the traditional political system of the Ashanti, a matrilineal group in West Africa where lineage is the basic political unit, but he also cautions against sweeping generalizations about consensus in traditional African life (Wiredu 1997: 303).

According to Wiredu, Ashanti decision-making by consensus can achieve “substantive representation,” in contrast to the will of the majority rule where the minority viewpoint may be formally represented but will lack a “substantive correlate.” (Wiredu 1997: 307) He seems to find what he describes as the “consensual democracy” of the non-party variety, as exemplified by the Ashanti political system, superior to the majoritarian democracy of the multi-party system. In his view, the multi-party system has not invariably or necessarily promoted democracy, though it has some benefits. But he also concedes that transformed social and political conditions mean that the “kinship networks that provided the mainstay of the consensual politics of traditional times are simply incapable of serving the same purpose in modern Africa” (309). Another limitation of the traditional consensus approach is that it worked within the internal politics of ethnic groups, while “historically, inter-ethnic relations involving those same groups have by nature been marked, or more strictly, marred by frequent wars, the most extreme negation of consensus” (309).

The point Wiredu draws from traditions of consensual politics is in the possibilities of dialogue between different ethnic groups within African states. In the many African states where some ethnic groups are numerical and political minorities, the multi-party democracy system marginalizes and excludes them from the ambit of power. He perceives the non-party alternative as “a dispensation under which governments are formed not by parties but by the consensus of elected representatives” (1997: 310). Such a system does not in any way prohibit political associations that may be devoted to particular ideological agendas. However, affiliation would not be a criterion for positions of political authority. In this model, a minority that may disagree with a decision will still have their concerns addressed—the politics of consensus will require that the minority be convinced through dialogue to provide their assent even if they have reservations. The minority cannot, in terms of the structures of political power, be ignored (310–11).

Eze questions Wiredu’s emphasis on a contrast between consensual democracy as belonging to a traditional precolonial African heritage and “adversarial democracy,” and sees contemporary political practices in Africa as being characterized by a complex combination of such “traditional” and external sources (Eze 1997: 314).

Gyekye emphasizes several of the same aspects that Wiredu highlights among the Ashanti, but in relation to Akan of which the Ashanti are a subgroup. He maintains that “the Akan people institutionally express, in their own fashion, certain basic ideas of democracy” (Gyekye 1997: 129). Such mechanisms include the requirement of popular support for election and rule by the chief, the possibility of free expression of opinion, and the emphasis on consensus which provides space for dissenting views and opposition. However, in affirming that “there is a need to urge that traditional values and ideas be brought to bear on modern political life” (135), Gyekye also stipulates that such an application must take into account the complexities of contemporary political settings. Toward this end, certain traditional political practices might be amenable to an appropriate “translation” while others, like the notion of a hereditary political authority, would not be feasible.

the democratic principle of popular sovereignty requires a stronger consensus than the simple majority method of reaching political decisions can offer, even though consensus formation is not easy to obtain... [the consequent] political inclusion evokes in every individual citizen (or representative) a sense of belonging and being a member of the political community, a virtue essential in all political settings, whether multinational or not. (1997: 140)

As indicated earlier, the point of reporting the analysis of these scholars is not to draw a direct line of development from such limited and rudimentary ideas and institutions to full-fledged constitutionalism, even within the same region, present-day Ghana or West Africa generally. Rather, it is simply to affirm that some of the basic ideas and institutions of modern constitutionalism are indeed part of the historical experience of African societies. The same point is made more broadly by Young in his analysis of what he calls the “precolonial precursors” to the range of contemporary notions of freedom in Africa (2002: 14). Various precolonial understandings of freedom can be discerned in customary and ritualized structures of governance, in the decentralized character of political authority across much of the continent, and the nature of social and economic life in precolonial Africa. Like the other scholars cited above, Young points to the “framework of customary restraint which imposed important limits on capricious exercise of authority” (16). He draws attention to “unarticulated notions of freedom that were implicit in the highly decentralized nature of political structures in large parts of the continent. A wide range of freedom for those unencumbered by servile status in these regions, although not reflected in doctrine, was embedded in everyday practice” (16).

According to Young, one difference between Western and African perspectives is the latter’s lack of “joining of property to life and liberty as constitutive elements in personal freedom” (2002: 17). While the sanctity of property was a critical bulwark against the expanding claims of the early modern state in Europe, land did not play the same role in precolonial Africa for various reasons. First, land was abundant and labor was the commodity in short supply, which meant that control over labor and not land was essential for production. Another reason is that land was a communal good, and land use was easily accessible to all those in a community. Young argues that the pattern of land use suggests another aspect of “embryonic notions of freedom” (18), the idea that freedom was vested not in the individual but derived from the community.

Young also points out that “the spread of universal religions contained yet another notion of freedom” (2002: 18). With deep historical roots in Africa, both Islam and Christianity were spreading into new regions in the century before colonialism. Both offered the “concept of a community of believers, ultimately equal in their submission to or faith in God, as umma or res Christiana. Unfree status was reserved to the unbeliever. Conversion, for many, was thus a personal act of liberation” (2002: 19). Religion also offered entry into a community, “as entire local units followed their leaders into the new faith,” and “scriptural sources became a privileged library for political language of protest, and subsequently liberation” (19). At the same time, however, religion brought with it “subordination to its prescriptions and its authorities, not all of which advanced the idea of freedom” (19).

It is also relevant here to note that there is evidence that toward the end of the nineteenth century, before the colonial encounter, some African societies were engaged in constitutional experiments that sought to address the impact of social and political developments of previous decades. There appears to have been ongoing centralization of power, using indigenous technologies of war, among various African communities, like the Zulu and the Baganda, in the period leading up to colonialism. Boahen points out that the nineteenth century was a time of dynamic change in Africa: “these internal dynamics... were not only economic and political but above all social and intellectual [among autonomous communities whose] rulers were in full control of their own affairs and destinies” (Boahen 1987: 1). The abolition of the slave trade and its replacement by trade in natural products led to the end of the wars for slaves and to a more just distribution of wealth, especially across rural regions.

In the political sphere, state-building was characterized by greater centralization. Technology transfer enabled by European capitalism led to the establishment of processes of industrial and military modernization in several states. Boahen suggests that at that point, Africa “was in a mood of optimism and seemed poised for a major breakthrough on all fronts. By 1880, old Africa seemed to be dying, and a new and modern Africa was emerging” (1987: 1). Ranger offers a somewhat different overall assessment with regard to East and Central Africa, though he too emphasizes the increased military strength and political centralization of African societies. “Many scholars have argued that the nineteenth-century history of the area was a progress to disaster which left African societies on the eve of colonization greatly weakened and divided. Perhaps the century saw a decline in terms of agricultural production, of population growth or life expectancy” (Ranger 1994: 76).

Such scholarly disagreements are of course to be expected, and their final resolution here is neither possible nor necessary for our purposes because I am not claiming that the antecedents highlighted above were true of all parts of the continent. It is sufficient for the point I am trying to make that, as Boahen argues, the impetus for constitutional experimentation essentially stemmed from larger numbers of the population staking a claim to a role in governance: “the number of educated people and ulamas [Islamic scholars] steadily increased throughout the century and they began to demand a share in the administration of their countries” (Boahen 1987: 9). Conflicts between those emerging elites and traditional rulers were in some cases resolved by force, as in the Fulani Jihads or Dyula rebellions. However, “in other parts of Africa, especially on the west coast, this confrontation was resolved in a constitutional manner, with the educated seeking, not to replace the traditional rulers, but to become their partners” (9). Boahen lists three such constitutional experiments: the Fante Confederation formed in Ghana in 1868, the Egba United Board of Management (EUBM) formed in Nigeria in 1865, and the kingdom of the Grebo in Liberia (10).

For example, the constitution of the Fante Confederation in Ghana detailed the political structure of authority, from the king-president, his advisors, the Ministry, the Executive Council, and a Representative Assembly. It provided for the framing and enactment of laws and for a provincial court (Boahen 1987: 10). That constitution also outlined plans for social and economic development. Those significant and visionary proposals called for constructing roads and promoting agriculture and industry. They also emphasized education “not only of a literary but also of a technological and practical nature—as well as the pride of place given to female education and the education of the youth” (11). Moreover, those proposals were characterized by a “spirit of self-help and self-reliance underlying the proposals,” and emphasized “harmonious cooperation between the educated elite and the traditional rulers for national development” (12). In Boahen’s view, had the implementation of that confederation not been blocked by the British in 1873, “the course not only of the history of Ghana but indeed that of the whole of West Africa would have been different.”

The need for critical assessment of such antecedents, as indicated earlier, would raise the question whether there is a negative association between traditional values and institutions, on the one hand, and constitutionalism in the present context, on the other. That is, in terms of the thesis of this book, can the persistence of precolonial or traditional antecedents hinder or obstruct the incremental success of constitutionalism in the modern African context, as opposed to supporting and sustaining it, as suggested by the preceding discussion? For example, Suberu assesses the perspectives offered by scholars who partly locate the failure of democratic institutions in traditional political cultures in Nigeria. The premise of this line of thinking is essentially the view that Western democratic practices have no correlates, and hence are fundamentally incompatible with traditional Nigerian culture and society. This argument cites as evidence the absence of limitation of power in some traditional political structures and the association of absolute authority with political power. Another problem is said to be “that the strong sense of communal obligation, which is a defining feature of virtually all traditional societies in Nigeria, fosters such destructive patterns of values and practices as social coercion and authoritarianism, ethnocentrism or intercultural distrust and corruption or nepotism” (Suberu 1995: 202). Suberu refers to this as “the ruinous patterns of public behavior which are animated by the logic that state resources and positions may be competed for and then utilized for the personal benefit of officeholders and their sectional reference groups” (202).

But Suberu himself also stresses the diversity of traditional political cultures within present day Nigeria, pointing out that it encompasses “the theocratic authoritarianism of the Hausa-Fulani emirates in Northern Nigeria, through the monarchical republicanism of the Yoruba kingdoms of southwest Nigeria, to the democratic egalitarianism of the ‘stateless’ or decentralized societies of the Igbo in the southeast and several minority communities in the middle-belt or lower north” (1995: 202). He indicates that, while analysis of traditional political cultures may provide valuable perspectives on modern political practices, the complexity and variation across contexts effectively prohibit any simple generalization about their overall impact. Nevertheless, he argues that it is inaccurate to conclude that traditional political practices and structures have had no influence on modern political culture in Nigeria, even though the influence might be limited.

One reservation I have about this line of thinking is that it may be dichotomizing “traditional” and “modern” notions of both community and politics in a somewhat simplistic manner. Although communal ties and notions of identity in a contemporary context may have important historical continuities that are preserved through social networks, they are also profoundly transformed by more recent and current developments. For instance, since modern political structures themselves reshape communities, as well as power relations within and among them, the meaning and implications of communal ties and identity is likely to change. Another reservation is that the argument about traditional loyalties determining contemporary politics cannot explain why any democratic change should occur at all, why individuals across communities, and different communities across a society, would share democratic aspirations and risk their lives in trying to realize them, as indeed happened in Nigeria and many other African countries, most recently during the last decade of the twentieth century.

In my view, earlier antecedents as well as more recent and contemporary developments are all elements in the same process for each society. This perspective is illustrated by the recent constitutional experiences discussed in Chapter 3 of this book. The point is also made in the possibilities and risks of incremental success in the case of Nigeria. It is probably true to a large extent that Nigeria “has been a model in adopting and utilizing federalist principles to mediate and contain centrifugal tendencies” (Suberu 1995: 206). Favorable features include “the preservation of the corporate existence of the federation, the integration of a variety of ethnic minority communities into the mainstream of national politics, the dilution of the hegemony of the north” (206). But limitations of Nigerian experience include over-centralization and continuing inequalities among social and ethnic groups (208), as well as the risks of reversal or serious setbacks, as may happen over the implementation of Shariʿa by the northern states, as discussed in Chapter 5. The interaction of such contradictory factors emphasizes in my view the contingency of outcomes, and hence the role of human agency in directing developments in the direction of promoting and sustaining constitutionalism.