Sovereignty in Postcolonial Africa

As observed by Jackson and Rosberg two decades ago, although many postcolonial African states are internally deficient and externally weak, their sovereignty has been guaranteed by the world community of states and the Organization of African Unity (OAU; now the African Union).

Except for ambiguous cases like the relationship between Ethiopia and Eritrea, all present African states are direct successors of the colonies that were constituted as united political entities by European colonial powers for the first time in the history of each territory. The constitution of these states in the belly of colonialism, as well as their legal legitimacy at independence derived from agreements among European states, rather than the consent of their own populations. Their borders were usually defined by international rules of continental partition and occupation established by European powers for that purpose, instead of local or regional political facts or geography.

Moreover, the African populations of those colonies had little control even in the timing and dynamics of the process of decolonization that is supposed to have “restored” their sovereignty. A combination of internal agitation for independence and shifts in the dynamics of European domestic politics and international relations after the end of the Second World War resulted in the transfer of negative sovereignty, whereby juridical statehood ensures general legitimacy and freedom from acts and threats of foreign intervention. This came about in sharp contrast to the European tradition in which the modern conception of sovereignty was based on demonstrable capacity, or positive fact of empirical sovereignty, the capacity of states for self-government and ability to enforce their territorial jurisdiction. In the formative European context of sovereignty, a state was a credible entity that existed as such, whether recognized or not, and whose reality required recognition sooner or later. Classical international law was the child, not the parent, of states in Europe, while the international law of decolonization and juridical statehood became the parent of the postcolonial African state. The basic point to emphasize out of all these remarks is that almost all present African states acquired sovereignty before they were necessarily sovereign as a matter of positive, inescapable reality (Jackson 1984: 26).

With due regard to the fact that their perspective and objectives are different from mine in this book, the following features of Jackson and Rosberg’s analysis (1984, 1986) are pertinent to my own thesis:

· The minimal colonial administration by a remarkably thin layer of European decision-makers assisted by a few educated local elites and traditional rulers, employing divide and rule tactics, came to be accepted as the “natural” order of things by African populations. The exercise of sovereignty was therefore seen as necessarily requiring authoritarian power structures and relations, and elitist politics, rather than popular participation in governance and the defusion of authority and powers.

· The fact that territorial defense was a function of Pax Europa among imperial powers since the conference of Berlin, and supported by the Pax Africana of the OAU since 1963, contributes to perceptions of state security as directing military forces inward at African populations as protection against rebellion or riot. National security came to mean the security of the regime in power, with very little transparency and political or legal accountability in the operation of security forces. It is too early to tell whether the transformation of the OAU into the African Union in 2002 will have a significant impact on this state of affairs, but it is difficult to expect the same governments to change their policies in this regard without pressure from their own populations, as suggested below.

· As independence came suddenly without preparation in most cases, the emerging African states had little capacity and competence to cope with the responsibilities of the sovereignty that was thrust on them on short notice. Zambia, for instance, had fewer than 100 university graduates and fewer than 1000 high school graduates by the time of independence (Hodder-Williams 1984:86). Lacking the strength and competence to govern effectively and humanely, postcolonial governments tended to compensate by using oppressive and authoritarian methods, a “natural” continuation of the colonial state and its administrative “traditions.”

· The new African states were defined by political boundaries originally determined by European imperialists, whose territorial claims were made in relation to one another without regard to traditional African rulers or their peoples.

· The political parties established by African leaders in their struggle for independence were more of an expedient for retaining leadership and control over the new state than a means for providing indigenous structures or gaining the genuine loyalties of local African populations. For decades after independence, the majority of ruling parties remained auxiliary institutions of personal power rather than authentic organizations of public opinion or expressions of popular sovereignty.

In relation to constitutional principles in particular, since the real authority of the state did not necessarily cover its whole territorial jurisdiction, ruling African elites tended to focus on controlling the government apparatus and patronage system, and strove to retain the support of key ethnic leaders, instead of seeking genuine legitimacy and accountability to the population at large. Ironically, those seemingly expedient political strategies in fact facilitated the loss of power by the independence leaders of most African countries to military usurpers who succeeded in controlling the whole country by simply physically holding a few officials and key government installations in the capital. Once they were in “effective control of the government,” military usurpers gained automatic recognition by “the international community” in almost every single case. In this way, both the domestic and international sources of sovereignty have tended to be exclusively concerned with sovereignty of the government, not of the people.

The reasons for the repeated failure of the first constitutions of the vast majority of African states are complex and vary from one country to another. But part of the explanation is that those constitutions were alien frameworks that had little meaning for most Africans. They were also usually established too late in the colonial period, often within a few years of independence, to become a familiar part of the political and legal institutions of the country.

To explore the underlying issues here, it seems to me that there are two aspects of sovereignty in relation to constitutionalism. The first one is that it is the will of the population to govern itself that finds expression through an institutional framework of democracy. The second in this context is the notion that one people is distinct as a political and territorial entity from another people. This latter conception is particularly important for the basis of the modern territorial “nation” state, which continues to be the dominant form of political organization of present societies as politically autonomous entities. Moreover, the constitution is usually taken to be a means for affirming the sovereignty of the state through a formal declaration at the beginning, in contrast to those of developed and establish countries in the West where that is assumed as the basis of constitution-making without the need to expressly declare what is taken to be obvious or self-evident. This contrast of the assertion of sovereignty, as opposed to its assumption, is partly due to the historical fact of decolonization during the last part of the twentieth century.

However, given the continuing power dynamics of inequality that characterizes international relations at a regional or global level, the importance of this secondary aspect of sovereignty as the basis of political independence should not be underestimated. Constitutionalism is usually understood as an “internal” doctrine whose mandate and province pertains to a nation or nation-state. Yet the threat to constitutionalism may well be external through some form of intervention that repudiates even the possibility of internal sovereignty. Sometimes the threat comes from the willingness of political actors to use extra-constitutional means to protect their perceived interests, often with external assistance or encouragement, as has frequently been the case in many African countries. In such cases, the first sense of sovereignty is probably undermined or diminished, while the second sense is maintained. A military coup, for instance, seriously undermines the ability of the population to govern itself, while the sovereignty of the country as a political and territorial entity is not affected. Indeed, the coup makers have traditionally received international recognition as the government of the country, regardless of the manner in which they achieved control of the state, or the consequences of their actions for the ability of the people as a whole to govern themselves.

I am not suggesting here that one sense of constitutionalism is more important than the other. Rather, I am concerned with sustaining sovereignty in both senses of the term. To this end, I am proposing a rethinking of the concept of sovereignty in the interest of sustainable constitutionalism. The dual purpose of this proposed reconceptualization of sovereignty addresses the question of internal and external legitimacy of the state, while being rooted in institutions and processes that represent the people and secure and protect their interests.

As commonly understood today, sovereignty signifies the state’s claim to exclusive control over its territory and people subject to its jurisdiction, including the monopoly of the competence and capacity to set and implement policy, enact and enforce laws, and permit or prohibit activities by any type of actors, whether internal or external (Hinsley 1986). This claim needs to be accepted and openly acknowledged by other states individually and collectively, thereby declaring their acceptance of the internal sovereignty of the new emerging state. As noted earlier, this is the juridical sovereignty that African states achieved through decolonization, regardless of their ability to be sovereign in an empirical sense, on the ground. At the domestic level, this exclusive claim is founded on the state’s constitutional order, as recognized and acted upon by other states and actors at the international level. Here, the reference to a state’s “constitutional order” does not require that it has a written constitution, nor does it assume a certain quality of conformity with the principles of modern constitutionalism and protection of fundamental rights. In this functional minimal sense, every state has a constitutional order at any given point in time, though judgment can be reserved about its legitimacy and efficacy.

Sovereignty is therefore established and regulated by international as well as national or domestic law. But not only are these two foundational sources of sovereignty interdependent and mutually reinforcing, but the distinction between the domestic and international is becoming increasingly blurred in ways that call for the reformulation of this conception of sovereignty. To place such renegotiation and reformulation in context, it may be useful to reflect on the current status of the European understanding of sovereignty as the dominant paradigm that is being challenged on its own terms. This European conception of sovereignty is premised on a view of the world where states are the principal actors, centers of power and object of interest (Falk 1992: 2). It is also

part of a more general discourse of power whose function is not only to describe political and economic arrangements but to explain and justify them as if they belonged to the natural order of things.... It is integral to the structure of Western thought with its stress on “dichotomies and polarities,” and to a geopolitical discourse in which territory is sharply demarcated and exclusively controlled. (Falk 1992: 11)

Over time, however, the invention of the sovereign state in this sense, as a product of human expediency and practice, came to be reified and deified, whether in viewing a monarchy as sanctified by god or in the “secular deification” of a republic as conceived by the framers of the U.S. constitution (Anderson 1990). “Given the far-reaching transformation of the social and political landscape we have witnessed this century, and especially these past several decades,” Falk suggests, “there is a pressing need to rethink the concept and practice of sovereignty” (Falk 1992 :11).

That may not be easily done, however, not only because of the vested interest of those who are in control of the apparatus of the state, but also because of the nature and assumptions of traditional international law and relations. Those who control the state prefer to keep the traditional view of sovereignty which enables them to retain exclusive control over power and resources as long as they can suppress any internal opposition. That view is also expedient for other governments because it enables them to continue the business of international trade, security, diplomatic relations, and so forth, as usual. Nevertheless, there are mounting calls for reconsideration of this traditional European conception of sovereignty, to address the push and pull of contradictory tendencies to centralization and decentralization, the tendency toward autonomy for national units and ethnic groups, and calls for greater popular control over national sovereignty (Rosenau 1992; Giddens 1990).

Traditional international law itself signifies limitations on sovereignty in that it creates obligations on the state, at least toward other states. Sovereignty is also limited by virtue of membership in international organizations which are created by states precisely because they recognize that there are issues which they cannot adequately address alone. To achieve their purpose, these international organizations have now come to operate in ways that encroach upon sovereignty, as traditionally conceived. Thus, whereas the League of Nations was only able to make decisions by the unanimous agreement of its members, the United Nations now generally operates by majority-voting system, except in the Security Council where the five permanent members have the power to veto resolutions. Traditional sovereignty is encroached upon by states being bound against their will, either by the decision of the majority or by veto power over all other members who are not permanent members of the Security Council. Yet, ironically, rapid decolonization has led to the creation of new states that are hyper-sensitive to violations of their domestic jurisdiction without being capable of maintaining their own sovereignty against internal challenge or external threat.

A number of processes and actors are now challenging state power and authority, both within and across its borders. States are “becoming enmeshed in a network of interdependencies and regulatory/collaborative arrangements from which exit is generally not a feasible option” (Zacher 1992: 60). Some of the communication, economic, and environmental issues and concerns that bring states into collaboration and compromise their sovereignty may also go beyond states’ ability to respond even collectively. Governments benefit from recent technological developments in keeping a closer watch on their citizens, but the combination of computer and communications technologies have allowed citizens and corporations to evade governmental control in a number of important ways. The globalization and decentralization of production, made possible by global telecommunications and changes in transportation and production technologies, is allowing transnational corporations to supersede traditional national political jurisdiction. Governments are also losing control over their own currencies to traders whose decisions to buy and sell are based on their independent assessment of government financial decisions and economic policies and activities which are now instantaneously accessible to global market actors. Although global trade and speculation in national and foreign currencies can result in serious economic and political consequences for states and their populations, there is little that governments can do about it, especially those in Africa and other Third World countries which are most vulnerable to such pressures (Wriston 1992: 8–9).

Another area exposing the inadequacy of traditional notions of state sovereignty is the environment. Phenomena like the dramatic cross-border effects of the Chernobyl disaster, ozone depletion, and global warming clearly illustrate the permeability of state borders as well as the inability of most states, as autonomous sovereign entities, to deal with direct threats to their territories and populations (Mathews 1989: 168). Moreover, a variety of increasingly powerful national and international nongovernmental actors are challenging the sovereignty of states through their independent campaigns over environmental issues.

Social movements calling for self-determination in various senses and degrees threaten traditional notions of sovereignty from within the state’s borders. These social movements “are in the process of redefining the meaning and boundaries of civil society... reaffirming the priority of civil society over the state, of popular sovereignty over state sovereignty” (Camilleri 1990: 35). Mounting tension in the context of tremendous ethnic diversity, diminishing ability of existing states to respond to rising demands for self-determination, and more disintegration and weakening of state sovereignty should be expected (Gellner 1983: 44–45). These trends may be seen as merely increasing the number of states, when an oppressed people seek secession and separate statehood, which may well end in the same sort of sovereignty under which they were oppressed within the previous borders, thereby signaling another triumph of the sovereign state over the sovereignty of the people. Moreover, these trends and the factors contributing to them should also be seen as a reflection of the push and pull of globalizing and localizing trends. The tension between economic and technological integration is decreasing the importance of borders, thereby rendering the state that is appropriating the sovereignty of the people increasingly weaker and less able to exercise that sovereignty. Calls for secession and independent statehood, or for limiting the exclusive control of the state within existing borders in favor of some type or degree of autonomy and devolution of power, are therefore less likely to lead to satisfactory outcomes for the people concerned.

These and related tensions can be negotiated, I propose, through a rethinking of sovereignty whereby the people’s ability to govern themselves can be secured within existing borders, instead of risking separation that may result in similar oppression (An-Naʿim 1997). The rethinking of sovereignty I am proposing would make the former conditional upon the latter, requiring state sovereignty to be a true reflection of the sovereignty of the people. I would also argue that constitutionalism is both a necessary means and desirable outcome of this process. But the viability of this proposed reconceptualization of sovereignty should be assessed in relation to other theoretical and practical aspects of constitutionalism in the African context. In particular, it seems to me, the basis and rationale of sovereignty should be linked to the state’s willingness and ability to protect the equal human rights and dignity of all persons and groups under its jurisdiction. I will now elaborate on this dimension of the standards for assessing the constitutional performance of present African states.