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Stellenbosch Handbooks in African Constitutional Law
The Stellenbosch Handbooks in African Constitutional Law series engages with contemporary issues of constitutionalism in Africa. The first experiments in democratic and constitutional governance in Africa that started after independence were soon overtaken by dictatorships, and arbitrary and repressive rule. The pulling down of the Berlin Wall followed by the collapse of the Soviet Union unleashed new forces of democratization and new hopes for the establishment and entrenchment of constitutional governance and constitutionalism in Africa. This series is designed to identify, analyse, and promote serious discussion of the critical issues that can shape, refine, and deepen the consolidation of constitutionalism in Africa.
Although comparative constitutional law has become a major field of legal scholarship, most of the extensive research that has been carried out has focused on long-established democracies. The only African country that has attracted sustained research interest from a comparative law perspective is South Africa. The few books that present perspectives on African comparative constitutional law focus narrowly and exclusively on developments in either anglophone, francophone, or arabophone Africa without cutting across these divides. Yet, since 1990, Africa has been at the centre of profound and far-reaching constitutional developments. Little comparative research has been carried out to understand the nature of these constitutional changes, to review their impact on the ethos of constitutionalism on the continent, and to explore prospects for the future.
The overriding objectives of the Stellenbosch Handbooks in African Constitutional Law series are, first, to stimulate interest in comparative constitutional research and the different constitutional traditions operating in Africa by presenting a comprehensive analysis of the latest thinking, research, and practice. In this way, the series intends to fill the huge gap in the existing literature on comparative African constitutional law as well as point to directions for future research. Second, each volume will bring together high quality innovative and original material from diverse perspectives written by scholars and legal practitioners drawn from the different constitutional traditions operating on the continent. In this respect, each volume will strive to cover anglophone, arabophone, francophone, hispanophone, and lusophone Africa. In many respects, this will ensure that African voices are heard in the global constitutional debate. Third, because most African countries share many common features, such as the colonial legacy, geographical proximity, and social, economic, political, and cultural conditions, the books in the series adopt a comparative approach that highlights gaps and good practices in a manner that will provide a rich source of authoritative information for promoting an inter-African legal dialogue and the cross-fertilization of ideas between different constitutional traditions. Finally, the books in the series are intended to act as a repository for the accumulation of knowledge, experience, and expertise on the continent. Each handbook stands alone and is intended to provide an invaluable source of authoritative reference material for academics, researchers, students at all levels, as well as legal practitioners and policy-makers.
Preface
This fifth book in our Stellenbosch Handbooks in African Constitutional Law series, is the outcome of the sixth Stellenbosch Annual Seminar on Constitutionalism in Africa (SASCA). As in the past, it was organised by the Institute for International and Comparative Law in Africa (ICLA) of the Faculty of Law, University of Pretoria, the South African Research Chair in Multilevel Government, Law and Development (SARChI) at the Dullah Omar Institute, University of the Western Cape, and the Stellenbosch Institute for Advanced Study (STIAS). This was done in partnership with the Konrad Adenauer Stiftung (KAS) Rule of Law Programme for Sub-Saharan Africa. The seminar took place from 4 to 7 September 2018.
The theme of the sixth seminar was ‘Democracy, Elections, and Constitutionalism in Africa’. The participants examined how the fledgling foundations of African constitutionalism could sail through the stormy seas of authoritarian revival and prevent the democratic recession spiralling into a depression. They examined a number of intricate issues concerning the role of elections in fostering democracy and constitutionalism. Some of the issues looked at included how we could design systems that will ensure that elections on the continent are genuinely competitive and reflect a real contest between competing approaches to nation-building, rather than a contest between perceived enemies; or again, how we could we reduce the cost of losing an election and encourage incumbents and opposition parties to accept defeat and continue to play by the rules of the democratic game. Whilst there are no easy and obvious answers to the numerous questions that arise, they nevertheless are important and urgent issues that need to be seriously interrogated. This is because, even if constitutionalism and democracy may not be working well today in Africa, there is no better alternative.
This seminar, like the previous ones, attracted eminent and emerging young constitutional scholars from across Africa and abroad. A key objective of these seminars continues to be our desire to encourage and mentor up-and-coming scholars concerned with constitutional law and its practice in Africa. This important goal is reflected in the inclusion of chapters in this volume written by young scholars who participated in the seminar. We have also endeavoured, in line with the fundamental objective of this series, to secure papers that would cover a cross-section of the continent’s regions and legal traditions.
We would like to acknowledge and thank a number of persons and institutions that made this book possible. First, the seminar would not have taken place without the financial support provided by Swedish Riksbankens Jubileumsfond to STIAS to fund the SASCA programme. We would like to thank in particular the director of STIAS, Professor Edward Kirumira, and his predecessor, Professor Hendrik Geyer, and the Coordinator of Strategic Initiatives, Professor Johann Groenewald, for their enthusiasm
viii Preface and guidance. We also like to acknowledge the assistance of the very able Mrs NelMari Loock for all the practical arrangements. Second, we are grateful to the director of ICLA, Professor Christof Heyns, for his unstinting support for this project. Dr Lukman A Abdulrauf of the Faculty of Law, University of Ilorin, Nigeria, and Dr Michelle Maziwisa, Postdoctoral Fellow of the SARChI Chair in Multilevel Government, Law and Development, at the Dullah Omar Institute, who also provided excellent assistance in the management of the chapters as well as casting a critical eye on their content. Third, we would like to acknowledge support provided by the South African Research Chairs Initiative of the Department of Science and Technology and National Research Foundation, through the South African Research Chair in Multilevel Government, Law and Development. Fourth, we much appreciate the financial and advisory support provided by KAS. Fifth, thank you to all the peer-reviewers who helped in ensuring the quality of the end product. Sixth, we would also wish also to thank Andre Wiesner for his incisive editorial eye. Finally, special thanks go to OUP staff, especially Mr Jamie Berezin and Mr Ashirvad Moses.
Charles M Fombad and Nico Steytler
Pretoria and Cape Town June 2020
Table of Cases
INTERNATIONAL AND REGIONAL COURTS
African Court of Human and People’s Rights
Actions Pour la Protection des Droits de L’Homme (APDH) v The Republic of Côte d’Ivoire, Application No. 001/2014, Judgment, 18 November 2016
Ingabire Victoire Umuhoza v Republic of Rwanda; Application No. 003/2014, Judgment, 24 November 2017
Court of Justice of the East African Community
East African Civil Society Organization Forum v The Attorney General of the Republic of Burundi, The Commission Electorale Nationale Indépendante and The Secretary General of the East African Community, Reference No.2 of 2015
International Criminal Tribunal for Rwanda
Akayesu Case (Prosecutor v Akayesu) (Judgment) 96-4-T, T Ch I (2 September 1998) 204
Media Case (Prosecutor v Nahimana, Barayagwiza and Ngeze; (Judgment and Sentence) 99-52-T (3 December 2003) 209
NATIONAL JURISDICTIONS
Benin
Constitutional Court of Benin, Judgment No. DCC 06-074, 8 July 2006 72
Democratic Republic of Congo
Case No. RCE 001/PR.CR, Decision, 19 January 2019 (unreported)
Ghana
369
Nana Addo Dankwa Akufo-Addo and Others v John Dramani Mahama and Others, Supreme Court of Ghana, Judgment, 29 August 2013 365, 367, 379, 384
Kenya
Centre for Rights Education & Awareness (CREAW) v Attorney General, [2015] eKLR, http://kenyalaw.org/caselaw/cases/view/111102/ 424
Centre for Rights Education & Awareness and Two Others v Speaker the National Assembly, [2017] eKLR, http://kenyalaw.org/caselaw/cases/view/133439/ 424
Federation of Women Lawyers of Kenya (FIDA-K) and Five Others v Attorney-General and Another, High Court Petition No. 102 of 2011, [2011] eKLR 503
Kenneth Stanley Matiba v Daniel Toroitichi Arap Moi and Others, Civil Application No. NAI 241 (1993) [Election Petition No. 27 of 1993] 373
Mwai Kibaki v Daniel Toroitichi Arap Moi, Court of Appeal Civil Application No. 172 [Election Petition No. 1 of 1998] 373
National Gender & Equality Commission v Majority Leader, County Assembly of Nakuru and Four Others; Jubilee Party and Another (Interested Parties), [2019] eKLR
426
xii table of cases
Odinga and Another v Independent Electoral and Boundaries Commission and Others, [2017] eKLR .
144
Principle of Gender Representation in the National Assembly and the Senate, In the Matter of the, [2012] eKLR, http://kenyalaw.org/caselaw/cases/view/85286/ 424
Raila Amolo Odinga v Independent Electoral and Boundaries Commission and Others, Supreme Court Petition No. 5, 3 and 4 of 2013 369–7, 384, 386, 389
Raila Amolo Odinga and Another v Independent Electoral and Boundaries Commission and Others, Presidential Petition No. 1 of 2017 386
Speaker of the National Assembly v Centre for Rights Education & Awareness and Seven Others, [2019] eKLR 427
Lesotho
Kananelo Mosito and Others v Qhalehang Letsika and Others, Court of Appeal (Civil) 9/2018
385
President of the Court of Appeal v Prime Minister and Others, Court of Appeal (Civil) 62/2013 385
Malawi
Arthur Peter Mutharika and Another v Saulos Klaus Chilima and Another, MSCA Constitutional Appeal No. 1 of 2020, [2020] MWSC 1, 8 May 2020 .
Saulos Klaus Chilima and Another v Peter Mutharika and Others, Constitutional Reference No. 1 of 2019 .
Namibia
Panduleni Filemon Bango Itula and Others v Minister of Urban and Rural Development and Others, Case No. A 1/2019 (February 2020)
Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others, Supreme Court of Namibia, Case no. SA/12/2011, Appeal Judgement, 25 October 2012
Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others, Case No. A01/2010
Nigeria
145, 392
160
365, 374
Al-Hassan v Ishaku [2016] 10 NWLR (Pt. 1520) 230 340
Amaechi v Independent National Electoral Commission (INEC) and Others, Supreme Court of Nigeria, Case No. SC 252/2007, Judgment, 18 January 2008, [2008] 5 NWLR (Pt. 1080) 227
Atiku Abubakar and Others v Umaru Musa Yar’adua and Others, Supreme Court of Nigeria, Case No. SC.72/2008, Judgment, 12 December 2008
Awolowo v Shagari and FEDECO [1979] NSCC 87
Buhari v Obasanjo [2005] 13 NWLR (Pt 941) 1
Constitutional Rights Project and Another v Nigeria (2000) AHRL 191 (ACHPR 1998)
INEC v Musa [2003] 3 NWLR (Pt. 806) 72
Marwa v Nyako [2012] 6 NWLR (Pt. 1296) 200
Muhammadu Buhari and Others v Olusegun Obasanjo and Others, Supreme Court of Nigeria, Case No. SC.133/2003, 17 NWLR (2003)
Nyesom v Peterside [2016] 1 NWLR (Pt. 1492) 71
Rwanda
Democratic Green Party of Rwanda v Attorney General (Application), Supreme Court of the Republic of Rwanda (July 2015), at www.rwandagreendemocrats.org/sites/globalgreens. org/files/Amicus%20Curiae.pdf, (last accessed 2 May 2018)
Le Ministère Public v Ingabire, Case No. RP 0081-0110/10/HC/KIG, Judgment, 20 October 2012
384
380
table of cases xiii
Sierra Leone
John Opong Benjamin and Others v National Electoral Commission and Others, Supreme Court of Sierra Leone, Case No. SC. No. 2/2012, Judgment, 14 June 2013 374
South Africa
Crawford-Browne v President of the Republic of South Africa, Case No. CCT 103/10 . . .
Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011(3) SA 347 (CC) .
Mlungwana and Others v S and Another (CCT32/18), [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) (19 November 2018) 502
My Vote Counts NPC v Minister of Justice and Correctional Services and Another (CCT249/17), [2018] ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC) (21 June 2018) 497
New National Party of South Africa v Government of the Republic of South Africa and Others, 1999 (3) SA 191 (CC) 505, 507
Trustees for the Time Being of the Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14
Tanzania
385
Attorney-General v Reverend Christopher Mtikila (2009) AC 45 273
Reverend Christopher Mtikila v Attorney-General (1993) 1 CHRLD 11; (2005) TZHC 5. 373
Uganda
Amama Mbabazi v Yoweri Kaguta Museveni and Others, Supreme Court of Uganda, 2016 Presidential Election Petition
378, 384
Kizza Besigye v Yoweri Kaguta Museveni and Another, Presidential Election Petition No. 1 of 2001 378, 384
Kizza Besigye v Yoweri Kaguta Museveni, Presidential Election Petition No. 1 of 2006 378, 384
United Kingdom
Henry J.B. Kendall and Others v Peter Hamilton [1878] 4 AC 504
John Fitch v Tom Stephenson and Others [2008] EWHC 501 (QB).
Morgan v Simpson [1975] 1 QB 151
Simmons v Khan [2008] EWHC (QB)
Zambia
Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba (1998) ZR 49
Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR 138
Hakainde Hichilema and Another v Edgar Lungu and Others, Constitutional Court, Case No. 2016/CC/0031
Zimbabwe
387
372–3, 384
Chamisa v Mnangagwa and Others, CCZ 42/18, ZWCC 42, Judgment, 24 August 2018 142–4
Dongo v Mwashita and Others, HC 2969/95 122
Election Resource Centre v Charumbira and Others, HH 270-18, HC 1718/18 135
Mawarire v Mugabe and Others, Judgement No. CCZ 1/13, CCZ 146/2013 .
Morgan Tsvangirai v Mugabe and Another, Case No. SC84/05, [2006] ZWSC 73, Judgment, 14 February 2006
Morgan Tsvangirai v Mugabe and Others, Constitutional Application No. CCZ 71/13, Judgment No. CCZ/20/2017, 14 February 2006
129
381
142, 382
xiv table of cases
Morgan Tsvangirai v Mugabe, Election Petition No. HC 3616/2002 .
Movement for Democratic Change and Others v Chairperson of the Zimbabwe Electoral Commission and Another, Case No. HH37-08 EP24/08, Judgment, April 2008 .
Nelson Chamisa v Emmerson Dambudzo Mnangagwa and Others, Constitutional Application No. CCZ42/18 383, 386
Sibanda and Another v President of the Republic of Zimbabwe and Others, (HB 46-08), [2008] ZWBHC 28, Judgment, 8 May 2008 447
Table of Legislation
INTERNATIONAL AND REGIONAL INSTRUMENTS
African Charter on Democracy, Elections and Good Governance 2007 . . . 3–4, 19, 64, 65, 69, 70, 79, 80, 83, 84, 86, 88, 488, 509, 510
art 2(4)
art 3(4)
art 3(10) 64
art 8
art 17 73
art 17(1)
17(3)
art 23 65
art 23(4) 67, 69
art 23(5) 476
art 25(3) 78
art 25(8)
art 29
art 31
art 31(2)
art 49
Arts 23 to 26
Arts 24 and 25
64
77
African Charter on Human and Peoples’ Rights 1981 62
art 10 273
art 13(1) 273
African Charter on the Values and Principle of Decentralisation, Local Governance and Local Development 2014 5, 96, 113 Preamble 92
African Union Declaration on the Principles Governing Democratic Elections in Africa 2002
Principle 1
African Union Protocol Relating to the Peace and Security Council 2002
art 5(2)(g) .
Beijing Declaration and Platform of Action 1995.
73
488
432
Constitutive Act of the African Union 2000 65, 66, 82, 83, 85
art 4(h) 64, 71, 75
art 4(p) 64
art 23 64, 78
art 30 64, 65
Convention on the Elimination of all Forms of Discrimination against Women 1979. . . .
Convention on the Prevention and Punishment of the Crime of Genocide 1948
438
art 2 204
ECOWAS Protocol on Democracy and Good Governance 2001
Preamble 87
art 1 87
art 2 71
art 2(1)
art 45
Inter-American Democratic Charter 2001 . . . 85
Lomé Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government 2000
Preamble
4, 65, 67, 69, 72, 76, 78, 79, 83, 84, 488
63, 64
OAU Declaration of Mechanism for Preventing, Managing and Resolving Conflicts in Africa (Cairo Declaration) 63
OAU Declaration on the Political and Socio- Economic Situation in Africa and the Fundamental Changes Taking Place in the World 1990 63 Protocol Relating to the Establishment of the Peace and Security Council of the African Union art 7(1)(g)
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003 (Maputo Protocol)
SADC Declaration on Gender and Development 1997
71, 78
438
432
SADC Protocol on Gender and Development 2008 (revised 2016) 432, 438
art 12(1) 432
United Nations General Assembly Resolution 31/146 of 20 December 1976 148
United Nations General Assembly Resolution 3111 of 12 December 1973
Charities and Societies Proclamation, No. 621/2009 185
art 2(2) to (4) 185
Electoral Code of Conduct for Political Parties Proclamation, No. 662/2009 302
Electoral Law of Ethiopia Proclamation (Amended), No. 532/2007 173, 302
art 20(1) 173
art 25 305
art 52(1)
Electoral Law of Ethiopia Proclamation (Amended), No. 532/2008
art 16(12)
art 28
art 28(2)
art 33
art 33(3)
art 45
art 59
187
173
art 60 313
Electoral Law of Ethiopia Proclamation, No. 111/1995 174 Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct Proclamation, No.1162/2019 191, 309
art 2(29) 304
art 33
art 44
art 45
art 67(8)
art 68(7)
art 78(4)
art 81
arts 82 to 85
Freedom of the Mass Media and Access to Information Proclamation, No. 590/2008
Political Parties Registration Proclamation, No. 46/1993
185
12, 302 art 28
Political Parties Registration Proclamation (Revised), No. 573/2008
9
9(15)
art 47
art 48(4)
art 49
art 49(1)
art 51
art 51(1)(b)
art 51(3)
art 52
309
187
303
303, 304
312
303, 313
art 52(1) 303
art 53 309
arts 54 and 55 309
art 54(2) 310
art 54(2)(b) 303
art 56(3) 309
Political Parties Registration Proclamation (Revised), No. 578/2008 12, 174
art 2(7)
arts 5 and 6
art 9.
Regulation Concerning the Procedure for Determining the Apportionment of Government Financial Support to Political Parties, Regulation No. 5/2009
19
Regulation to Determine the Allocation of Government Financial Support to Political Parties (Draft). No.----/2019
Constitution of Zimbabwe Amendment (No. 9) Act 31 of 1989, s 34 471
Constitution of Zimbabwe Amendment (No.20) Act 1 of 2013 125
Constitutional Court Rules 2016 (Statutory Instrument 61 of 2016)
r 55(1) 385
Electoral Act [Chapter 2:13] Act 25 of 2004 .
ss 20 and 21
s 23(3). .
s 67(a)
s 67(A)(7).
s 72
s 110
s 160(g).
. 131–2
129
130
143
138
136
Electoral Amendment Act 6 of 2018
s 23(b)
s 30
s 36
General Laws Amendment Act [Chapter 8:07] Act 3 of 2016 434
Legal Age of Majority Act, Act 15 of 1982 434
Political Parties (Finance) Act [Chapter 2:11] Act 4 of 2001, as amended by Act 22 of 2001 and Act 14 of 2002
s 3(3)
s 4(1)
s 6(1)
s 8
Public Order and Security Act [Chapter 11:17] Act 1 of 2002
s 24(1)
s 24(6)
Zimbabwe Gender Commission Act [Chapter 10:31] Act 7 of 2015
s 232
131, 132
456
List of Contributors
Charles M Fombad
Professor of Law, Institute for International and Comparative Law in Africa (ICLA) and Faculty of Law, University of Pretoria
Nico Steytler
South African Research Chair in Multi level Government, Law and Development, Dullah Omar Institute of Constitutional Law, Governance and Human Rights, University of the Western Cape
Adem K Abebe
Programme Officer, International IDEA, Constitution Building Programme, and Extraordinary Lecture, Centre for Human Rights, University of Pretoria
Zemelak Ayitenew Ayele
Associate Professor, Director of the Centre for Federal and Governance Studies, Addis Ababa University & Dullah Omar Institute of Constitutional Law, Governance and Human Rights, University of the Western Cape
Edwin Babeiya
Senior Lecturer, History, Political Science and Development Studies, University of Dar es Salaam-DUCE
Nic Cheeseman
Professor of Democracy, International Development Department, University of Birmingham
Tinashe Carlton Chigwata
Senior Researcher, Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape
Zelalem Degifie
Assistant Professor, School of Law, Wollo University, Ethiopia
Sherif Elgebeily
Head of Director’s Office, Ministry of Justice, UK Government
Jill Cottrell Ghai
Retired law teacher; now Chair, Board of Directors, Katiba Institute, Nairobi
O’Brien Kaaba
Lecturer, School of Law, University of Zambia
Makanatsa Makonese
Deputy Chief of Party, Advancing Rights in Southern Africa, American Bar Association
Henning Melber
Extraordinary Professor, Department of Political Sciences, University of Pretoria and Extraordinary Professor Centre for Gender and Africa Studies, University of the Free State, Bloemfontein
Teresa Nogueira Pinto
PhD Candidate in Global Studies, Portuguese Institute for International Relations, Nova University of Lisbon (IPRI-NOVA)
Rotimi T Suberu
Professor, Society, Culture, and Thought (SCT), Bennington College, United States
Introduction Democracy, Elections, and Constitutionalism in Africa
Nico Steytler and Charles M Fombad
1. Introduction
The third wave of democracy that reached African shores at the end of the Cold War saw a dramatic decline from 1990 onwards in dictatorships, military regimes, one-party governments, and presidents for life. Multiparty democracy was at the core of the constitutional revolutions that swept through most of Africa in those watershed years: elections were held for presidencies and parliaments, political parties competed for power, and regime-change by ballot occurred in a few countries. Most dramatic of all was the end of centuries of white minority rule in South Africa, and the election in 1994 of the first non-racially inclusive democratic parliament. Similarly, two decades later, the Arab Spring of 2011 saw popular protests unseating authoritarian regimes amidst hopes of installing democratically accountable government. Central to the wave of democratization was the embedding of democratic elections in constitutions and the establishment of basic principles of constitutionalism.
However, that wave is either losing momentum or receding—or being reversed in its entirety. This volume examines democracy and elections in Africa, a focus motivated by two concerns. First, after 30 years, it is important to take stock of the state of constitutional democracy on the continent. The democratic gains of the 1990s and 2010s seem to be falling by the wayside, with the evidence mounting that regimes are concealing authoritarianism under the veneer of elections, doing so in an international context where populist regimes are on the rise, China’s one-party system has ever-greater economic clout, and free and fair multiparty elections, along with a pervasive democratic ethos, are consequently no longer a given. It is becoming a battle to protect and retain constitutional democracy.
The second reason for this volume’s focus on democracy and elections is that multiparty democracy is essential for the proper functioning of the state in addressing the major problems facing Africa—internal conflict, inequality, and lack of development, and poor governance and corruption. This concern already came to the fore in the previous two volumes in this series, Decentralisation and Constitutionalism in
Charles M Fombad
Africa (volume 3)1 and Corruption and Constitutionalism in Africa: Revisiting Control Measures and Strategies (volume 4).2 The principal objectives of decentralization are peacemaking, in the form of federal arrangements, and development, through local self-government. While most countries have lofty decentralization policies, they show limited political will in pursuing either the democratic or developmental dimensions of decentralization; moreover, their ability to actualize the potential value of decentralization is hamstrung by corruption and maladministration. One of the central findings of volume 4 of this series is that, although they are far from perfect, adequate legal tools exist to combat corruption, but the political will to use them is lacking at national level. The question, then, is how to foster this political will. One of the obvious answers is that there should be investment in elections and democracy—competitive politics has the potential to oust corrupt regimes and replace them with ones committed to constitutionalism and development.
The focus of this volume is thus on how competitive politics or multiparty democracy can be realized and how, through competition, such politics could lead to better policy and practice outcomes.
2. The Working of Multiparty Democracy Work in Africa
Part I examines how multiparty democracy currently works in Africa and considers ways in which to achieve constitutional democracy, a key component of constitutionalism. What is the state of play? What are the trends?
In chapter 1, ‘Democracy, Elections and Constitutionalism in Africa: Setting the Scene’, Charles M Fombad explains the links between the three concepts and sketches out their praxis over the past three decades. Constitutionalism, signifying broadly a commitment to limited government, entails the protection of fundamental human rights, including the political rights of participation in political decisions through forming political parties, standing for elections, and voting in regular, free, and fair elections. Such rights require effective enforcement mechanisms principally through an independent judiciary. Although elections do not equate to democracy and democracy does not equate to elections: elections are the institutional structure that allows for political plurality.
Fombad argues that, save for Eritrea and Eswatini (formerly Swaziland) and a few countries engulfed in conflict, such as Libya and South Sudan, multiparty elections have become the norm in African states. However, after a brief period of free and fair elections during which a few countries saw peaceful alternations of power, the quality of elections has gone into decline, entering what has been characterized as a mild but protracted recession. Many recent elections have degenerated into little more than
1 Charles M Fombad and Nico Steytler (eds), Decentralisation and Constitutionalism in Africa (OUP 2019).
2 Charles M Fombad and Nico Steytler (eds), Corruption and Constitutionalism: Revisiting Control Measures and Strategies (OUP 2020).
competitive authoritarianism. The full potential for democracy and constitutionalism in Africa is thus yet to be realized. Fombad identifies a number of issues that define or entrench a democratic culture in African countries.
First, constitutions have entrenched political rights and political pluralism, the holding of regular elections, and the limiting of presidential terms to facilitate alternation of power (although the latter provisions have been abandoned in a number of constitutions). Second, given that free and fair elections should be well structured and organized, the new wave of constitutions have established various democracyenhancing institutions, with electoral management bodies (EMBs), demarcation commissions, and public media commissions playing crucial roles. To promote democracy, these institutions have to be independent and show their independence in order to ensure the trust of the voters in the electoral system. Practice, however, shows that in many such institutions the lack of independence from the ruling party is much in evidence, resulting in the questioning of the validity of electoral results. Third, inasmuch as electoral procedures are rule-bound, the effective resolution of electoral disputes around such rules is of cardinal importance. The most common dispute resolution mechanism remains the courts, but they seldom rule against the ruling party. Fourth, as democracy is more than just elections, the accountability processes and procedures between four- or five-yearly elections must enable parliaments and citizens to hold executives to account.
Finally, for electoral democracy to thrive in Africa, both African and international actors must support and strengthen it. The African Union (AU) has set the trend by adopting a range of measures to promote democracy, good governance, constitutionalism, and the rule of law. The most important of these is the African Charter on Democracy, Elections and Governance (ACDEG), which came into force in 2012. However, as noted above, the international community is ambivalent: even some old supporters of democracy have become populist, while the economic dominance of China in Africa has brought its political ideology of one-party rule back into focus. The chapter’s conclusion is that although there is still support for democracy, there is no room for complacency: the continent’s transition to democracy remains at serious risk in the face of ‘democratic’ authoritarianism.
In response to this risk, Nic Cheeseman, in chapter 2, asks the question: how could we design democracy to work in the African context? How can the problem of unstable and conflict- prone societies be addressed institutionally through the structuring of democratic governance? He identifies two broad strategies. The first is integration, entailing the promotion of a single unified national identity through more centralized institutions; the second is accommodation, drawing diverse groups into the political process through both power- sharing at the centre and decentralization. Cheeseman criticizes the first approach as counterproductive for inducing conflict, rather than reducing it. Nearly 80 per cent of African states are highly centralized political systems, including the so- called ‘federal’ states of Ethiopia, Nigeria, and South Africa. Such integrative systems, he argues, are unstable precisely because they are so centralized; they facilitate
and Charles M Fombad
exclusionary politics which are sustained through coercion, resulting in the risk of election- related conflict. The accommodation strategy has also been criticized for being conflict- prone as the emphasis on ethnic groups may exacerbate ethnic tensions: the reinforcement of ethnic identities can be building blocks not of a nation but of conflict.
For Cheeseman, given the reality of ethnic diversity, the answer lies in a system of inclusion both at the centre and subnationally. Inclusivity at the centre starts with an electoral system where a proportional representation system would make parliaments more inclusive than the results that a majoritarian system may produce. Equally important is the inclusivity of the executive where system of governments of national unity can be employed. Such inclusivity may lead to a lack of accountability and political competition, both of which are vital for policy contestation and transformation. The trick, then, Cheeseman posits, is to strike a balance between political inclusion and political competition.
Given the ‘recession’ in democratic governance over the past decade, Adem K Abebe and Charles M Fombad examine how external actors can play a democracy- enhancing role. In their chapter 3, entitled ‘The African Union and the Advancement of Democracy: The Problem of Unconstitutional Retention of Government Power’, they focus on a particular aspect of unconstitutional conduct and the collective voice and action of the AU and its predecessor, the Organisation of African Unity (OAU). The OAU’s Lomé Declaration recognized the need for the adoption of a democratic constitution, respect for constitutional and other laws (rule of law), political pluralism, the separation of powers, and judicial independence. The ACDEG, which was adopted in 2007 and entered into force in 2012, was the first to attach sanctions to unconstitutional changes of government, especially through coups d’état , and such sanctions were indeed imposed in particular cases.
Despite the clear and detailed provisions in the ACDEG ensuring multiparty democracy, Abebe and Fombad argue that the ACDEG’s impact on all forms of unconstitutional retention of government has a number of limitations. First, it does not cover the whole of Africa: only 33 countries have ratified the treaty thus far. Second, the focus of the ACDEG is on unconstitutional change in government, leaving aside the unconstitutional retention of power. While coups d’état are specifically proscribed, the failure to hold regular elections, as constitutionally prescribed, falls outside its ambit. Third, the Charter also does not speak to constitutional amendments that undermine the democratic nature of the constitution as ‘an infringement on the principles of democratic change of government’. Fourth, it does not deal with the phenomenon of legitimate popular mass movements demanding and effecting the overthrow of authoritarian regimes. Such mass-based actions were witnessed during the Arab Spring in Tunisia and Egypt and in 2019 in Sudan.
To remedy these weaknesses, Abebe and Fombad call for increased attention to the problem and forms of unconstitutional extension of government power. Specifically,
they recommend the establishment of formal mechanisms through which the AU could offer direct engagement and assistance as reform proposals are debated to ensure that the relevant domestic actors take cognizance of the necessary AU frameworks and comparative continental and global experiences. The regional economic communities (RECs) also have a role to fulfil in guarding against all forms of unconstitutional usurpation and retention of political power.
Nico Steytler also addresses the problem of inclusion, this time at subnational government level. His chapter 4, entitled ‘Local Multiparty Democracy in Africa’, argues that democratic local government embeds the political culture of multiparty democracy at grassroots level. If so embedded, it can establish a culture of responsiveness, transparency, and accountability, which, being the government closest to the people, may be more readily and effectively done than holding the national leaders to account. The African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development (African Charter on Decentralisation), adopted in 2014 by the AU, endorses this approach. In the context of multiparty democracy, it provides the opportunity for political inclusivity. This argument has particular resonance in an ethnically diverse society because the winner-take-all paradigm of political competition at the national level results inevitably in the marginalization of the losers when they are geographically concentrated. It also allows for local experimentation in democratization with further forms of inclusive politics, both in their representative and participatory forms.
The chapter thus asks three questions regarding whether democratic local government has played this promising role in Africa’s democratization process. First, has local government been enabled to play a role in constituting multiparty democracy? More specifically, has democratic local government been constitutionalized for this purpose? Second , if so, has local government been allowed by central governments to perform this democracy-constituting function? More specifically, have multiparty local elections been regularly held which were also free and fair? Third, where enabled and allowed to play a democracy-constituting role, have local governments been able to do so in the advancement of democracy nationwide?
For the author, the answers are not encouraging. First, although local government is widely recognized constitutionally, there is great unevenness as to its status. Moreover, there is generally an absence of a clear, detailed, and uniform constitutional imperative for democratically elected local government. Second, although local government elections have been held in almost all African countries, central governments have not in general allowed local government to perform its democracy-constituting function. Central governments have used a variety of techniques to prevent the effective sharing of power, including the irregular holding of such elections and denuding elected councils of real power. Third, despite these findings, there is also some evidence that local democracy on occasion has played a democracy-constituting role and enhanced democratic participation.
3. ‘Democratic’ Authoritarian Regimes: Case Studies
Before 1990, presidents for life were not infrequently entrenched in the constitutions of sub-Saharan Africa. Since the third wave of democracy ushered in multiparty democracy, this practice has not totally disappeared: leaders cling to power for extended periods of time (or for life) despite formal constitutional guarantees of multiparty democracy. This phenomenon is explained with reference to the emergence of the socalled ‘democratic’ authoritarian regimes, or authoritarian ‘democracy’. Captured in this internally contradictory phrase is the notion of formally elected governments in which the ruling party clings to power through authoritarian means. Multiparty elections are held for both internal and international consumption, but the electoral process is manipulated to such an extent by various means (including violence) that the election result is predictable: the ruling elite retains power from one electoral cycle to the next. The five case studies in this volume (Zimbabwe, Ethiopia, Namibia, Rwanda, and Egypt) examine the different ways in which ‘democratic’ authoritarian regimes are maintained.
Zimbabwe’s dalliance with multiparty democracy has set a pattern of authoritarian democracy. In chapter 5, entitled ‘Multiparty Democracy in Zimbabwe after the Adoption of the 2013 Constitution’, Tinashe Chigwata shows that although Zimbabwe never formally became a one-party state, since 1990 it has been operating in practice as one, notwithstanding an ostensible constitutional framework of multiparty democracy. The unravelling of hegemony after the loss of the 2000 referendum forced the ruling ZANU-PF (Zimbabwe National Union—Patriotic Front) to make major concessions to strengthen democracy, concessions that were eventually captured in the negotiated 2013 Constitution. However, Chigwata argues that little has changed in the authoritarian behaviour of the ruling party since then and that election results are still predictable.
Chigwata outlines how Robert Mugabe’s rule was based on liberation credentials of ending white minority rule in 1980. Consolidating power in 1987 with the formation of ZANU-PF, this party become truly hegemonic, winning 99 of the 100 seats in the 1990 election and becoming a ‘party state’ in which the distinction between the party and the state is obliterated. Ten years later that hegemony was broken when ZANU-PF lost a referendum on a new constitution and used authoritarian means to hold onto power. Mugabe, too, lost the 2008 presidential election to Morgan Tsvangirai of the Movement for Democratic Change, but the latter fell short of the 50 per cent plus one requirement. Due to violence and coercion. Tsvangirai withdrew from the second round and Mugabe was re-elected. Given his government’s lack of legitimacy, a government of national unity was forced upon Mugabe by the international community, which negotiated the 2013 Constitution.
Chigwata argues that although this constitution had all the bells and whistles of multiparty democracy, it did little to change the ruling party’s authoritarian ethos. The party systematically disenfranchized the urban electorate (which supported the
