In speaking of “African constitutionalism” throughout this book, I am neither implying that there is a specific type of constitutionalism that is peculiarly African, nor suggesting that the experience or feature I am discussing is true or applicable for the whole continent.

In particular, the elements of precolonial and colonial experiences to be highlighted below, and the notion of “retrieval and imagining” proposed there, are not intended to suggest or imply a blanket application of these ideas in the same way throughout Africa.

Subject to this caveat, I attempt in this chapter to generally highlight aspects of what might be called African constitutional values, institutions, and experiences, examine some relevant features of the traditional values and institutions of certain parts of the continent that can be reclaimed as antecedents of constitutionalism in each society or subregion. I also outline some of the constitutional experiences of African societies during the colonial and postcolonial periods, as integral parts of the same process of incremental success through practice for each society. Against this background, I then examine some aspects of sovereignty, accountability, human rights, and dignity as key concepts in the evolution of constitutionalism in Africa.

But first, it may be helpful to begin by briefly clarifying some of the conceptual and methodological difficulties and possibilities of what I call the “retrieval” of precolonial antecedents and colonial experiences, and “imagining” how they can contribute to the present and future development of constitutionalism in various African societies.

One of the themes I am developing in this book is the notion that the legitimacy and sustainability of constitutionalism need somehow to tap the consciousness of a particular people, which in the case of African societies would include the recollections of relevant precolonial ideas and historical experiences of each society. Part of the difficulty is that recollections of ideas, values, and the meaning of institutions and relationships in the precolonial past are filtered through the lenses of European historicity. The question is how to avoid or transcend postcolonial perceptions of what “counts” as history and how to interpret it, as discussed in Chapter 1. A related problem is that policies emerging out of such recollections are likely to be inhibited by the present realities of postcolonial hegemony and global capitalism.

To achieve continuity of historical experiences in the process of building constitutionalism over time, Africans need to reconnect to their precolonial past on their own terms, as if colonialism and its aftermath never happened. One aspect of the challenge is therefore how to retrieve what appears to be irretrievable, namely, to recover some of the moral and philosophical resources of the precolonial past of African societies into a present that has been totally transformed by colonial and post-colonial conditions. Another aspect of the challenge is how to imagine what appears to be unimaginable, which is the ability to integrate those resources into a theory and practice of constitutional principles that were developed in Western societies, while retaining the new acculturated outcome within recognizable parameters of constitutionalism.

I am not suggesting that Africans should strive to retrieve an “imaginary” history of complete and perfect sovereign accountability to the highest standards of human dignity and rights in a golden age of precolonial past.

African intellectuals have been struggling with the conceptual and practical difficulties of developing and implementing indigenous models for several decades now, and linking to scholars engaged in similar projects in other parts of the world, like those of “subaltern studies.” The term “subaltern” refers to someone who is of inferior rank, or something that is particular and not universal, but as a school of thought or approach to critical studies, it signifies the perspectives of nonelite or marginalized segments of the population. Emerging in India as a critique of both nationalist and Marxist criticisms of colonialism, this approach is critical of the way postcolonial nationalism sought to reverse colonialist assumptions by attributing agency and history to the subjected nation, on the same assumptions about Reason and Progress instituted by colonialism. Scholars adopting this approach are also critical of the Marxist critique of colonial exploitation that was framed by a historical analysis of capital and class struggle that universalized Europe’s historical experience.

Subaltern studies scholars object to both nationalist and Marxist critiques of colonialism as themselves Eurocentric, constrained by what they seek to criticize (Prakash 1994: 1475). As one of these scholars made the point, to nationalist and Marxist critiques of colonialism, “Europe remains the sovereign, theoretical subject of all histories, including the ones we call Indian, Chinese, Kenyan, and so on. There is a peculiar way in which all these other histories tend to become variations on a master narrative that could be called ‘the history of Europe.’ In this sense, ‘Indian’ history itself is in a position of subalternity” (Chakrabarty 1992: 1). In addition, this group of scholars also criticizes an internal subalternity within postcolonial societies and regions, and affirms that “the subalterns had acted history on their own, that is, independently of the elite; their politics constituted an autonomous domain, for it neither originated from elite nor did its existence depend on the latter” (Prakash 1994: 1447–48).

Even when we take this objection to applying the assumptions and methodology of Eurocentric historiography to African societies, the question may still be raised whether these societies have achieved the necessary level of development and culture to be able to implement constitutional or democratic governance. The answer that seems to be implied in the question is always in the negative. As a consequence, a “sense of failure overwhelms the representation of the history of these societies. Such images of aborted transitions reinforce the subalternity of non-Western [African] histories and the dominance of Europe as History” (Prakash 1994: 1484–85). The criticism of anti-colonial nationalism for having adopted colonial frameworks for its own indigenous elite project is expressed as follows. The very conception of the country as a national community seeks to pit nationalism against communalism which is accused of being unable to recognize religious, cultural, social, and local community as a political form.

The value of the subaltern studies approach is that it reinforces the self-confidence of African scholars and policy makers in the validity and relevance of their own recollections of their history and understanding of current experience. Still, the challenge remains how to avoid reproducing the dichotomies of colonial ideologies of the civilized colonizer and the primitive colonized into new variations of modern versus traditional, or by inversion in the destructive imperialist versus the sustaining community of the victim. “The difficulty is to confront the power behind European expansion without assuming it was all-determining and to probe the clash of different forms of social organization without treating them as self-contained and autonomous” (Cooper 1994: 1517). For the subaltern studies insight to really be helpful, one must open both precolonial and colonial experiences of African societies to less dichotomous and less polarized analysis, even in terms of the colonial and subaltern. One should not escape postcolonial discourse by replicating it in sharp dichotomies between European colonial domination (appropriated by the nationalist project after independence) and African subaltern resistance.

Maintaining a dichotomous and polarized analysis of dominant and dominated leads to the paradox of wanting the subalterns to have a rich and complex consciousness, to exercise autonomous agency, and yet to remain in the category of subaltern.

Africa’s crisis derives from a complex history that demands a complex analysis: a simultaneous awareness of how colonial regimes exercised power and the limits of that power, an appreciation of the intensity with which that power was confronted and the diversity of futures that people sought for themselves, an understanding of how and why some of those futures were excluded from the realm of the politically feasible, and an openness to possibilities for the future that can be imagined today. (Cooper 1994: 1545)

The main point of these theoretical reflections for our purposes here is that the retrieval projects of various African societies need not and should not be expected to conform to predetermined specifications, least of all externally defined ones. There is no preconceived script or blueprint for the constitutional course of any African society, no prescribed goals of transition from one point to another that must be achieved. Each society is constructing its constitutional development on its own terms, and that includes its own retrieval and adaptation projects, as well as internally generated responses to current challenges and concerns. The outcomes of these processes may be analyzed by observers as stages in the development of each society, but such analysis should not attempt to anticipate or constrain the visions and direction of any African society regarding its own development.