Process/Practice-Based Approach to Constitutionalism

The view of constitutionalism as a contested concept and the contingent outcome of the experiences of African countries in the postcolonial context will be further explained and discussed in the following chapters.

To briefly clarify this fundamental aspect of my whole thesis and approach, I will briefly recall earlier aspects of this chapter through the useful framework suggested by Rajeev Bhargava regarding the relationship of Indian secularism to its Western counterparts:

a widespread misconception exists in India that a unique uncomplicated separation of religion from the state is a feature of all modern, Western societies, and that this separation is conceived in the same manner everywhere, and because consensus on the precise relation between religion and state practice is an incontrovertible fact, the secularity of the state is a settled, stable feature in all Western politics.... Western secularism too, is essentially contested, with no agreement on what it entails, the values it seeks to promote, or how best to pursue it... each country in the West has worked out a particular political compromise rather than implementing a solution uniquely required by the configuration of values embodied in secularism.

This is clearly true of constitutionalism in general, as it is for the contingent role of Islam to be discussed later. If taken as the limitation of the powers of the state by law, we find that in Western countries like Britain, France, and the United States, discussed in Chapter 6, this function operates in deeply contextual ways in which the different structure and operation of power and law are structured uniquely in each setting. The same is true of attributes and values commonly associated with this concept, such as democracy, sovereignty of the people, or mechanisms like judicial review of the constitutionality of law or state policies. Indeed, one can even argue that there is no single common historical fact or attribute that can be found in all three societies that can yield a monolithic definition of constitutionalism. There is no uniform philosophy of governance that underlies political structures, dominant vision of the society or nation-state, or the sociocultural basis for respect for law.

For example, the purported strong correlation between democracy and the constitution in the United States neither precluded slavery until the second half of the nineteenth century, nor included women until well into the twentieth century. A correlation of democracy and constitutionalism is even less true of most of the history of the Britain and France cases, although these concepts eventually converge after a protracted struggle between secular and monarchical authority. The viability of French constitutionalism derives from the fact that the constitution is subsumed under the law; in Britain there is no constitutional text that can legally limit the will of any parliament, while the constitution is paramount law in the United States. Thus, these three Western models differ significantly on this fundamental matter.

In addition to its inherent relativity, the success of constitutionalism in Western societies cannot be traced to any single historical moment or turning point. No single event or series of events, like the Revolution of 1688 in Britain, or the French or American Revolutions, can be said to have guaranteed or secured the sustainable achievement of constitutional governance in that country. Indeed, subsequent moments of regression or ambivalence could have resulted in a totally different line of development. Conversely, no single failure or series of setbacks necessarily signaled the end of constitutionalism in those countries. For example, the Vichy government in France of 1940–1944 collaborated with the Nazi occupation and adopted antiparliamentary and antidemocratic policies that were reversed after liberation in 1944. Yet, one cannot categorically reject any possibility of the recurrence of such regressions in any country. In other words, the establishment of constitutional governance is always contingent as well as being relative to the context and history of the country in question, whether so-called Western or not.

The unavoidable relativity and contingency of constitutionalism everywhere, as illustrated by these Western cases, mean that this concept cannot be viewed as a single ideal principle that various societies have systematically and progressively realized on the basis of a blueprint or master plan. Any understanding of this concept is necessarily abstracted from the cumulative experiences of various societies, rather than a fixed preconceived notion of what it has to be. This clearly indicates to me the possibility of expanding the scope and applicability of constitutionalism to a much wider range of non-European, postcolonial societies, while recognizing that the concept was initially reflective of certain Western experiences. The specific constitutional experiences of Western societies can also point to fruitful insights and strategies for promoting the concept and its related institutions and processes in African countries, provided each experience is understood in its own context.

A key directive that follows from this perspective is to look closely at the internal dynamics and processes by which constitutionalism is effectively consolidated and established in any society. This requires combining a historical imagination with political and sociological analysis in assessing the relative “failure” or “success” of the concept in each setting. In other words, the failures or setbacks are as much a part of the evolution and establishment of the concept as are apparent successes in this regard. Instead of thinking of constitutionalism as an end that has either been achieved or not achieved, it is more useful to view it as a process that emerges through practice.

This approach is critically important because focusing on constitutionalism as an end that is judged by a “success/failure” standard tempts one to seek overriding causal or structural reasons for such assessments. Thus, a “verdict of failure” on a society tends to slide into simplistic judgments and assertions about the society as a whole, such as that the people are not “ready” for democracy, are fundamentally incapable of grasping the value of the accountability of government, or that identification with particular ethnic or religious identities represents primordial attachments that are incompatible with notions of citizenship. Indeed, this line of thinking typically results in precisely the kind of rationalization used by European powers to justify colonialism in Africa and elsewhere.

In contrast, the process and practice-based approach I am proposing in this book allows for a richer and deeper analysis by requiring one to address the complex social, cultural, and political dynamics within which a range of state and non-state actors, individuals, and communities, ethnic, social, and religious groups understand and relate to constitutional governance. Instead of taking an apparent “failure” as indicative of an inherent “defect” in a society, one should also consider the possibility that such an outcome may in fact reflect a “blind spot” of the concept as understood or implemented within a specific time-frame.

As emphasized earlier, the postcolonial condition must be taken into account in any analysis of the territorial state in a postcolonial society, without of course blaming colonialism for all the problems of African societies today. In particular, and drawing on the specific experiences of diverse postcolonial societies, a normative understanding of the post-colonial state should be incorporated into normative definitions of the state itself. No postcolonial state can be viewed simply as an individual case study or as variation on a European theme. The implication that anticolonial nationalism must replicate the modes of Western nationalism denies and effaces the agency of anticolonial nationalist movements. If the assumption that Europe provides the world with the paradigm for nationalism, which underlies European conceptions of constitutionalism, is taken as axiomatic, the resultant conception of constitutionalism cannot even “recognize” the character of anticolonial nationalism, let alone account for it.

This emphasizes that the postcolonial condition, outlined earlier and to be discussed later, should be integral to the process/practice based approach I am proposing in this book. To reiterate, the object is simply that this broad and complex condition should be integrated into analysis of the process/practice of constitutionalism in each African context, without implying that colonialism as such is “the causal explanation” of an assessment of success or failure in one case or another.