Taking some of the preceding general remarks as my point of departure, I will now offer some reflections in relation to African constitutional experiences.

These reflections are premised on the following propositions that have been discussed at various stages of this book. First, all human societies strive to implement their own mechanisms for the mediation of conflict over political power, economic resources, and social justice.

The third proposition on which this part of my discussion is premised is the view that, while a prevailing framework would primarily be the product of internal factors and processes, no society is immune from external influences through a variety of channels ranging from the borrowing and adaptation through peaceful relations with other societies, to violent conquest and imposition by external forces. An acknowledgment of the extent and consequences of external influence, regardless of its sources and manner, is necessary for a clear understanding of the nature and operation of the prevailing system, rather than a negation of the role of internal factors and processes. From this point of view one can appreciate the special role of the Enlightenment, and developments associated with the French and the American Revolutions, in locating constitutionalism in formally articulated philosophical system for those societies.

Moreover, the fact that what is commonly referred to as the “Western tradition” shares some common philosophical resources does not mean that the experiences of different societies within that tradition were either homogeneous or consistent, as they varied not only from one society to another, and over time, but also from one class or group of people to another within the same society. Mamdani clarifies this point by a brief discussion of the contrast between democracy as a stabilizing and conservative force in the United States, and a revolutionary and destabilizing force in France. A central concern of Republican thought and practice in the United States at the inception of constitutionalism there, he argues, was to set parameters on popular sovereignty by the rule of law that was expressed in terms of the inviolable rights of the minority against the majority, or of the individual in relation to the political power of the state. That conception of the rule of law forbids the majority from appropriating the property of the minority, hence the contradiction between “natural rights” to transform society and “vested rights” that remain judicially enforceable, and between the public rights of citizens and the private rights of property. “Whereas in Western Europe the rule of law was seen as a check on an arbitrary and capricious royal power, in the American tradition it emerged really as a limitation on popular sovereignty. The general point is that the historical routes to the rule of law and the concept of constitutionalism are several and contradictory” (Mamdani 1990: 361).

From my perspective, though internally differentiated and contradictory, Western models of the nation-state (“territorial” states in the case of Africa as explained in chapter 1) and conceptions of constitutionalism have been effectively universalized, including dominant liberal models as well as their critiques and proposed alternatives.

Without going into a discussion or evaluation of the variety of these postcolonial experiences, I wish to emphasize that internal African perceptions and experiences have been too much conditioned by external visions to permit an independent starting point or clear break at a subsequent stage of development. In light of the framing propositions above, this sort of influence and interaction is both to be expected and useful for African countries. After all, these are the ideological orientations and political realities of the world African societies have to live in. Moreover, the above-noted internal variety and contradictions among Western models provide African societies with a range of options and possibilities. My primary concern is that indigenous African perspectives are to be taken seriously on their own terms, as part of the process of promoting and legitimating constitutionalism in Africa, without claiming that such perspectives are somehow unadulterated by external influences, or that they should have an exclusive monopoly on the process. To contribute to this balancing process, of being open to external, primarily Western, influence, while keeping the final word for African experiences, I will now present some critical reflections on Western conceptions of constitutionalism.

One of the main theoretical themes of liberal constitutionalism is the notion of a social contract between the state as the apparatus of government, on the one hand, and civil society as social and economic institutions and processes autonomous of the state, on the other (Rawls 1971; Held 1984).

Important roots of constitutionalism lie in the need of capitalism for predictability, calculability and security of property rights and transactions... The generality of rules prevented both discrimination and arbitrary action (important for competitive capitalism); it prevented the subordination of the judge to the legislature in specific disputes, while at the same time it put a curb on judicial adventurism; and generality, with its rules for the future, ruled out the retroactivity of law.... There is considerable tension between the needs of capitalism in general and the desires of individual enterprises or sections of industry, which different modern states resolve in different ways. (Ghai 1993: 54)

Ghai also emphasizes the ideological function of liberal constitutionalism, in that it hides the way in which power is exercised by giving the impression of pluralistic, competitive, and responsive political systems.

The general social theoretical critique of bourgeois constitutionalism is that it is a means of domination of society by capitalists who control the apparatus of the state through advantages such as ownership of the press, access to education, and greater resources for political organization. The separation of powers and institutions of government is negated by class solidarity (protecting vested interests through the various organs), while the narrow scope of state power also enables capitalists to dominate civil society through the economy and other private institutions. To rectify these defects, socialist theory proposes that since law and constitutions are instruments of class rule, the transformation of society into a truly egalitarian society requires the dictatorship of the proletariat to break the economic, social, and political power of the bourgeois.

From a theoretical socialist perspective, the proletariat should resist bourgeoisie domination of the state, and take over the state in order to use it to change society.

This brief comparison of liberal and socialist theories of constitutionalism is useful because both models have had significant influence on constitutionalism in Africa, though the former has had a more formative and continuing impact than the latter. For the same reason, it is instructive to note here the similarities between the rationale and claims of some Islamic political movements and those of Marxist socialists. First, the leaders of Islamic movements tend to subscribe to a critique of liberal constitutionalism similar to that launched earlier by socialists, albeit presented in Islamic terminology. Second, they profess a similar utopian vision and corresponding authoritarian approach to power and politics in order to achieve their objectives in social transformation. In this regard, Islamic political movements tend to endow their own cadre with the same leading and ultraconstitutional role that Marxist socialists have envisaged for the Communist Party. Third, some Islamic political movements have also adopted Marxist political strategies of building temporary alliances and seeking exclusive political power by any means possible, whether through popular mobilization in Iran, tactical use of democratic means in Algeria, or military coups in Pakistan and Sudan. The following remarks on the liberal/socialist debate may also be applicable to the liberal/Islamic debate.

In my view, the above-noted Marxist critique of liberal constitutionalism is basically valid on its own terms, but the socialist theory and practice are not the answer. From a constitutional perspective in particular, socialist theory seem to suffer from a fundamental ambiguity regarding the notion of popular sovereignty. Seeking to rule in the name of the working classes, Marxist socialists were still unable to trust the political judgment and action of their own purported constituencies. Instead, they sought to enthrone the Communist Party as the guardian of the working classes, without providing any effective safeguards against the abuse of power, mismanagement, and corruption of Party officials and cadre. The same is true, I believe, of the role of elites and cadres in Islamist political organizations, like the National Islamic Front of Sudan.

Despite its problems and limitations, liberal constitutionalism clearly has the ability to incorporate the insights of its critics, and is more open to adaptation to effective efforts to resolve the paradox of popular sovereignty than other models. The way forward, in my view, is to take socialist and other critiques of liberal constitutionalism seriously, and incorporate them into a liberal approach to theory and practice in each country. The challenge is therefore to ensure that popular sovereignty will not be abused or manipulated when exercised by the public at large, rather than pursue the illusion of elite leadership in the name of ideological purity, social justice, or national or Islamic self-determination. This can only be achieved through the actual practice of constitutional governance over time, hence the idea of incremental success presented in this book.