Toward an Inclusive Theory of Constitutionalism
I conclude this chapter by revisiting the above-mentioned philosophical question, whether normative conceptualization of constitutionalism can transcend its Western historicity. The preceding analysis of the relativity and contingency of that European historicity represents one aspect of the theoretical framework and approach of this book.
Another aspect is the need to incorporate the historical, social, and political experiences of African societies in the normative definition of the concept as well as in assessing its development in a specific context. Without attempting to be exhaustive, I am proposing to do this by drawing on indigenous and precolonial African traditions of political, social, and cultural thought and practice, as well as political and intellectual traditions of anticolonial dissent and protest, in addition to concepts from European or Western social thought and disciplinary traditions, as relativized and reconceptualized in the manner described above.The overview of some traditional African constitutional values, as well as related experiences under colonialism presented in Chapter 2, is that the legitimacy and sustainability of African constitutionalism somehow need to tap the consciousness of African peoples, including recollections of relevant precolonial conceptions and historical experiences. Among the obvious conceptual and theoretical obstacles facing such an objective is the fact that the understanding of precolonial African history is itself shaped by notions of European history and its epistemological frameworks according to which knowledge of societies is gathered, analyzed, and applied. While overcoming these conceptual difficulties involves what may be called retrieving the irretrievable, achieving African objectives despite structural limitations requires imagining the unimaginable.
These ideas and processes will be discussed in more detail later, but I wish to note here that this proposition involves a relationship between recollections of the past and ways of imagining the future that can, in turn, provide a blueprint for action in the present.
If what some may view as irretrievable is to be retrieved, it must be recuperated with a view to the future that African peoples and societies envision for themselves. Kwame Anthony Appiah, it seems to me, is arguing for such a view of African philosophy, when he says:there are reasons for developing a notion of African philosophy, not as Hountondji’s philosophy “by Africans themselves”; nor simply, as others have proposed, as philosophy in Africa, either, but rather as philosophy for Africa. And to make sense of [this] idea we must inquire into what it is that Africa now needs of her intellectuals (which is to say intellectuals who are for her); and what parts of that need a training in “philosophy” can supply. (Appiah 1992: 228)
Similarly, I call for recuperating relevant indigenous traditions with a view to what constitutionalism should be for Africa today. To avoid a common confusion, 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 the precolonial past. That was neither the case anywhere, nor is it capable of being reconstituted in the present postcolonial condition of African societies. Rather, I am suggesting that Africans must imaginatively reclaim the agency which was denied to them during colonialism. If communities are “imagined” and traditions are “invented,” then Africans can imagine and reimagine and invent and reinvent their societies unfettered by the hegemony and constraints of European experience and epistemology. European discourse does not have an authority or monopoly on the past of all other people. It can neither propose a European past as a more “authentic blueprint” for the development of African constitutionalism, nor dictate what and how African societies can or cannot retrieve from their own histories.
The notion of retrieving the irretrievable is to indicate that contemporary discourse on constitutionalism must incorporate the legacy of a relatively autonomous realm of “civil society” during the colonial period.
This legacy of both everyday and organized political resistance, I argue, can be envisioned as a separate constitutional realm in contrast to the constitutionalism of the state. Part of that legacy, I suggest, has to account for the relationship between Islam and constitutional governance in different African contexts, as discussed in chapters 4 and 5. For African Islamic societies, the role of Islam in politics, culture, and society has always been, and will continue to be, contingent on context and circumstance. Instead of taking an unrealistic view of Islam as inherently or necessarily antagonistic or conducive to constitutionalism, I propose viewing this relationship in terms of competing currents of Islamic thinking and practices, or visions of Islamic identities and their political, constitutional and legal consequences. By indicating possibilities of alternative initiatives and outcomes of the politics of Islamic identity, and emphasizing that the impact of Islam on political and cultural institutions is negotiable, I am arguing that this dimension of the legacy of African societies can provide a basis of legitimacy for constitutionalism.Accounting for the Islamic dimension of the legacies of some African societies is not to say it is the sole or even primary determinant of the status of this concept in Islamic countries (that is, those where Muslims constitute the majority of the population). Rather, I am questioning whether secularism can or should only be conceptualized in opposition to religion, or be viewed as hierarchically prior to it. I am also calling for deeply contextual understandings of secularism, including a religious discourse about its meaning and implications, as a product of the broadest and most inclusive negotiation.
In this regard, I resonate with Akeel Bilgrami’s critique of Indian Nehruvian secularism, which can be applied to constitutionalism here:
[Constitutionalism should be] emergent rather than assumed, sees itself as one amongst other doctrines such as Islam and Hinduism; a doctrine that its proponents must persuade all others (including Hindus and Muslims...) to agree to as an outcome of negotiation.
Thus, secularists [constitutionalism for us here] must start in the political arena with its substantive commitments to its secular [constitutional] principles, facing up to other substantive doctrinal and political commitments of the communities, and working towards the adoption of their secular [constitutional] principles—by democraticizing these communities and thereby giving them the confidence to embrace, from elements within their own evaluative framework and point of view, arguments in favor of these principles. (Bilgrami 1999: 400)I am not in full agreement with Bilgrami regarding the dialectic relationship of religion and politics (1999: 401). The point for me is that constitutionalism, as well as related notions like secularism and democracy, requires legitimacy and credibility in terms of the frameworks that challenge an exclusively secular view of constitutionalism, in the sense that religion is necessarily and permanently problematic in this regard. In that part of the argument I am neither saying that constitutionalism cannot or should not be secular, nor suggesting that Islam is the communities and individuals whose existence it regulates. Like European notions of secularism or democracy, constitutionalism has predominantly come to African societies as an external colonial imposition. Without necessarily accepting Bilgrami’s view of the relationship between secularism and religion, I am simply emphasizing that there are different ways of imagining relationships between religion and constitutionalism, and they should all be open to negotiation within and among present and future African societies.
Mazrui defines “Afrennaisance as living evidence of Africa’s self-renewal, living testimony that the human spirit is reasserting itself among the African people” (2003: 163). He assesses the considerable odds that this rejuvenated spirit has to overcome, and concludes that “An African capacity for self-participation needs to be married to self-democraticization. Against the background of such a marriage, African swords may be turned into ploughshares, African spears transformed into elongated spades. The continent’s self-renewal has gotten underway” (2003: 176). From my perspective, constitutionalism can be a mechanism for both self-participation and self-democratization in Africa; it can embody a productive commingling and encounter between traditional notions of selfhood, human dignity, and political values of consensus and community building along with notions of human rights, sovereignty, and the nation-state (as distinguished earlier from the postcolonial “territorial” state in Africa). It can reflect a rich and valuable engagement between religious and secular discourses, and hopefully, ultimately reflect a productive outcome of a fusion of European and African thoughts, experiences, and traditions.