Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective

by John Hatchard, Muna Ndulo, Peter Slinn

Overview

The central role that effective governance plays in the economic and social development of a country is widely recognized. Using the example of the Commonwealth countries of eastern and southern Africa, this book analyzes the key issues in the process of developing, strengthening and consolidating the state's capacity to ensure the effective governance of its peoples. The book draws attention to the problems of constitutionalism and critically addresses legal issues involved in making constitutions "work" in practice.

Product Details

ISBN-13:	9780521118293
Publisher:	Cambridge University Press
Publication date:	08/06/2009
Pages:	388
Product dimensions:	6.00(w) x 8.90(h) x 0.70(d)

About the Author

Muna Ndulo is Professor of Law, Cornell Law School.

Peter Slinn, School of Oriental and African Studies, University of London

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Cambridge University Press
0521584647 - Comparative Constitutionalism and Good Governance in the Commonwealth - An Eastern and Southern African Perspective - John Hatchard, Muna Ndulo and Peter Slinn
Excerpt

Introduction

We are conscious that there are many pitfalls in writing a book of this kind. They were pointed out over thirty years ago by the authors of a pioneering work on public law and political change in Kenya.¹ Our project is in a sense even more ambitious in that we deal not with one state but eleven eastern and southern African states (the ESA states). Even the title caused us much difficulty. It is to be hoped that readers will get beyond a textual analysis of expressions which raise some difficult questions. What is 'constitutionalism'? What is 'good governance'? What are the boundaries of 'eastern and southern Africa'? What is the relevance of the Commonwealth?

De Smith's view of the concept of constitutionalism is firmly set in a western liberal democratic mould:

The idea of constitutionalism involves the proposition that the exercise of governmental power shall be bounded by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content - Constitutionalism becomes a living reality to the extent that these rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass there is significant room for the enjoyment of individual liberty.²

This definition has been characterised as 'minimalist' by one of Africa's most distinguished academic lawyers, noting that western constitutionalism was often argued to be representative of a foreign element which had no place in African tradition, history or practice.³ This latter perspective led to a 'developmental' argument in favour of authoritarianism: no fetter should be placed on the exercise of state power in the interests of the development of the masses. At the heart of this book lies the issue of the extent to which the exercise of arbitrary power may be limited by constitutional and other means so as to ensure the good government of the people.

'Good governance' is another much used but ill-defined concept. 'Good governance is more than putting constitutional limits to the power of the government.'⁴ The adjective 'good' perhaps is merely there for emphasis, for while 'government' may be good or bad, 'governance' in the modern language of the development industry implies 'the conscious management of regime structures with a view to enhancing the legitimacy of the public realm'.⁵ As it was put in the World Bank's report which marked that institution's damascene conversion to the importance of governance issues in the quest for sustainable development,

Underlying the litany of Africa's development problem is a crisis of governance. By governance is meant the exercise of political power to manage a nation's affairs . . . [Appropriate economic policies must] go hand-in-hand with good governance - a public service that is efficient, a judicial system that is reliable and an administration that is accountable to the public.⁶

Africa's quest is thus for a golden triptych of good governance → constitutionalism → sustainable development.

The boundaries of the study are comprised by the anglophone Commonwealth countries of eastern and southern Africa (the ESA states): Botswana, Kenya, Lesotho, Malawi, Namibia, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.⁷ Our collective expertise lies in these countries and we have all taught comparative constitutional law in diverse places. Whilst it is appropriate to draw some useful comparisons, the intention is not to undertake a comparative analysis of the texts of the constitutions of the ESA states, but rather to draw lessons, both positive and negative, from the experience of these countries in the development of constitutionalism in the region. In doing so, we address critically the legal issues involved in seeking to make constitutions 'work': for example, the protection of the constitutional order from being undermined by 'unconstitutional means' through the undue influence or involvement in government of the military or by 'constitutional means' through executive abuse of power.

The Commonwealth in our view is a vital component of the constitutionalism agenda for the ESA states. Representing an international organisation which is comprised of fifty-four countries from all parts of the globe, both developed and developing, but which lacks the threat of super-power dominance, Commonwealth Heads of Government Meetings (CHOGM) have adopted and frequently endorsed a statement of fundamental political values. The Commonwealth Principles including 'the inalienable right [of citizens] to participate by means of free and democratic political processes in framing the society in which they live', were first adopted at the Singapore CHOGM in 1971.⁸ The Harare Commonwealth Declaration of 1991 explicitly linked the advancement of the Commonwealth's fundamental political values with promoting sustainable development.⁹ CHOGM in Australia in 2002 re-affirmed a shared commitment to 'democracy, the rule of law, good governance, freedom of expression and the protection of human rights'.¹⁰ Moreover, the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG) was established in 1995 to deal with serious or persistent violations of the principles contained in that Declaration.¹¹

While no study of Africa can ignore the historical context, the emphasis here is on the contemporary constitutional scene.¹² 'Contemporary' may be defined for this purpose as the era ushered in by the wind of constitutional change which blew through Africa in the early 1990s. This wind proved too strong for the de jure one-party state regimes which had been a particular feature of the SEA states and even proved strong enough to topple the very apartheid system from the parliamentary ramparts of which Harold Macmillan had identified that earlier wind of change blowing through the continent some forty years before.¹³

We are conscious of our limitations as constitutional lawyers. We do not seek to offer an analysis of the political economy of the region. However we hope that this book will be of interest not only to fellow constitutional lawyers but to all those interested in confronting Africa's twenty-first century challenges. We hope to make a useful contribution to the analysis of the successes and failures of African development in the region in so far as these may be attributable to matters within our focus - to the problem of tailoring appropriate constitutional clothes to fit the body politic in a way which promotes the good governance which is now accepted as a prerequisite for sustainable development.

1

The democratic state in Africa: setting the scene

Setting the scene: Africa's record

It is appropriate to begin with some general reflections upon Africa's successes and failures in the field of governance since independence and upon the future of democracy on the continent in the new millennium. Africa, with a land area three times the size of the United States and a population in excess of 600 million people, is both the least developed and, in terms of natural resources, the most endowed continent in the world.¹ With its vast mineral, oil, water, land and human resources, the continent has the ability to attain sustainable development, that is to say 'increasingly productive employment opportunities and a steadily improving quality of life for all its citizens'.² Yet millions of Africans live in acute poverty, have no access to safe drinking water and are illiterate.³ The ambiguity in Africa's position is revealed with particular clarity in relation to food production. In pre-colonial times, the continent was self-sufficient in this area. Now, however, many African countries are dependent upon external food supplies. On the face of it, the inability of the African continent to feed itself is paradoxical, since one of its chief assets is its huge agricultural potential. Further it has all the conditions for becoming one of the world's major food baskets.⁴

Unfortunately, Africa lacks the domestic capital necessary to translate its enormous wealth into realisable benefits for its people and it has failed to attract sizable foreign investment to fill the gap. While, for example, African countries have put in place a myriad of investment codes in an effort to attract foreign capital, they receive only some 5 per cent of all direct foreign investment flowing to developing countries.⁵ Furthermore, about half of this investment goes into oil and mineral production and most of it to a few countries such as South Africa, Nigeria, Angola and Botswana; this in spite of the fact that investments made in Africa consistently generate high rates of return.⁶

At the root of the problem is the world-wide perception of Africa as an unstable, poorly governed, conflict- and poverty-ridden continent that cannot guarantee the safety of foreign investments.⁷ Several researchers have tested the impact of political stability, or conversely, political risk, on foreign direct investment flows. They found that a major factor cited by investors to explain their decision not to invest in a particular country was political instability.⁸ Certainly Africa's political instability has exacted a huge cost on its development efforts. In its 1989 report on Sub-Saharan Africa the World Bank concluded that '. . . underlying the litany of Africa's development problems is a crisis of governance'. The report continued:

By governance is meant the exercise of political power to manage a nation's affairs. Because countervailing power has been lacking, state officials in many countries have served their own interests without fear of being called to account. The leadership assumes broad discretionary authority and loses its legitimacy. Information is controlled, and voluntary associations are co-opted or disbanded. This environment cannot readily support a dynamic economy.⁹

The answer to the development quagmire therefore lies in establishing just and honest government. The starting point is examining the obstacles to achieving and sustaining this goal.

To a large extent the problems are rooted in the past. The continent has suffered a painful history that includes some of the worst human tragedies: slavery, colonialism and apartheid. As a direct result, when African countries won independence they faced formidable constraints to development. These included an acute shortage of skilled human resources, political fragility and insecurity rooted in ill-suited institutions. This legacy will continue to hamper development for decades to come. Yet Africa should be able to draw lessons, strength and determination from them. The serious problems should generate a predisposition to engage in a fundamental re-examination and re-direction rather than despair. Any avoidance of an unpromising future requires the transcending not only of the unfavourable indicators for the decades immediately ahead, but also the unhelpful inheritance from the past.

If issues of governance are resolved, Africa can become one of the fastest growing regions in the world. Just and honest government can result in the adoption of policies that will resolve the constraints that hinder sustained economic development. It is now acknowledged that after years of decline, some African economies are beginning to experience significant growth¹⁰ and that parts of the continent are slowly becoming an attractive 'emerging market' and investment opportunity.¹¹ But this fragile progress can easily be reversed and therefore needs consolidation. There is much to be done to translate the recent improvements into sustainable progress that will have a positive impact on the lives of everyone.

Not since independence have both the hopes and the challenges been simultaneously so great. Yet in reality whilst some African countries may be doing quite well, most Africans are not.¹² Africa remains host to the largest population of refugees and displaced persons on any continent. Too many people are trapped in conditions of grinding poverty, face violence and abuse daily and suffer under corrupt regimes. They are condemned to live their lives in squatter settlements or rural slums with inadequate sanitation, schooling and health facilities and to endure a police force and criminal justice system that seemingly does little to address their needs. All this contributes to conflict, instability and misery.¹³ States must also pay particular attention to the experiences of poverty and address and respond to the legal problems that adversely affect the lives of the poor, e.g. corruption, governmental lawlessness and institutional failure.

Criticism might be levelled here that this broad approach runs the danger of over-generalising the problems and the solutions applicable to individual countries. In fact one can make a strong case that African countries, though a mix, share common problems in relation to governance and development. They all face high levels of illiteracy, disease and poor infrastructure, are virtually all multi-ethnic in composition and most of their people live in grinding poverty. In other words, they are all struggling with the challenges of economic development and nation building.

Many of Africa's problems are the result of an inability to create 'capable states'.¹⁴ A capable state, in this context, is one characterised by transparency, accountability, the ability to enforce law and order fairly throughout the country, respect for human rights, the effective sharing of resources between the rural and urban populations, a limited role in the market economy, the creation of a predictable, open and enlightened policy-making environment and the working in partnership with the private sector, the media and organs of civil society.¹⁵ In addition, the acceptance of competitive politics and the maintenance of a bureaucracy imbued with a professional ethos and committed to acting in furtherance of the public good is required.¹⁶ These characteristics enable a state to effectively perform its role of developing the country and bringing about a better life for its people.

For these to occur, the rule of law must prevail. Political pluralism cannot prosper until effective legal institutions are established. In order to function effectively, a legal system must include not only relevant and up-to-date laws, but also an efficient institutional infrastructure for the design and administration of the law. The national constitution is the most important legal instrument here. Thus, part of the answer to the present predicament lies in the development of constitutions that can stand the test of time and that deliberately structure national institutions engaged in the management of the country in such a way as to ensure the creation of a capable state.

The central role that good, efficient and capable governance plays in the economic and social development of a country is now widely recognised.¹⁷ This was emphasised in 1991 by the Commonwealth,¹⁸ a voluntary association of fifty-four sovereign independent states that includes the eleven ESA states. In the 1991 Harare Commonwealth Declaration,¹⁹ which established its guiding principles, Commonwealth Heads of Government pledged:

[T]he Commonwealth and our countries to work with renewed vigour, concentrating especially on the following areas:

*	the protection and promotion of the fundamental political values of the Commonwealth
-	democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government;
-	fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief . . .
*	extending the benefits of development within a framework of respect for human rights; . . .' (our emphasis).20

That just and honest government takes time to develop and that at the meeting the concept was treated with little respect by many heads of government is well illustrated by noting the names of some Heads of African Delegations who 'pledged' their countries to uphold the Declaration. They included Dr Hastings Banda, the Life President of Malawi, as well as the leaders of four other de jure one-party states.²¹ Military governments were also well represented by the presence of (using their official titles) HE Major-General Elias Phisoana Ramaema, Chairman of the Military Council of Lesotho, HE General Ibrahim Babangida, President of Nigeria and Hon. Paul Obeng, Member of the Provisional National Defence Council (Prime Minister) of Ghana.

Whilst practice and theory were clearly far apart in 1991, the Declaration's importance is that it has provided and continues to provide a benchmark upon which to judge the ESA states performance on principles to which that they themselves have voluntarily agreed. Evidence of the Declaration's increasing significance lies in the fact that any country seeking entry or re-entry into the organisation must comply with its provisions.²² Further, military intervention into government now leads in the first instance to the suspension of that member state from participation in the Councils of the Commonwealth and ultimately to suspension from the organisation itself.²³ The willingness of the Commonwealth to take action against member states with civilian governments which are responsible for 'substantial and persistent' breaches of the Harare Declaration is reflected in the decision in March 2002 to suspend Zimbabwe (ironically the home of the Harare Declaration) from the Councils of the Commonwealth. This followed the Commonwealth Election Observer Group's findings that the 2002 presidential election was marred by a high level of politically motivated violence and that 'the conditions in Zimbabwe did not adequately allow for a free expression of the will of the electors'.²⁴

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© Cambridge University Press

Table of Contents

Preface; List of cases; List of constitutions; List of statutes; List of other instruments; Map; Introduction; 1. The democratic state in Africa: setting the scene; 2. Constitutions and the search for a viable political order; 3. Devising popular and durable national constitutions: the new constitutions of the 1990s; 4. Perfecting imperfections: amending a constitution; 5. Presidentialism and restraints upon executive power; 6. Enhancing access to the political system; 7. Making legislatures effective; 8. The judiciary and the protection of constitutional rights; 9. The devolution of power to local communities; 10. Developing autochthonous oversight bodies: human rights commissions and offices of the ombudsman; 11. Seeking constitutional control of the military; 12. Constitutionalism and emergency powers; 13. Constitutional governance: the lessons from southern and eastern experience; Bibliography; Index.

Editorial Reviews

"...the present book represents a truly impressive intellectual exercise, and can serve as roadmap for considerations regarding future constitutional development in emerging democracies. This work should receive serious study by scholars and practitioners who are interested in democratization, not only in anglophone Africa, but more broadly, in nations that are seeking to wean themselves from authoritarian rule and develop lasting representative institutions of governance." - The International Journal of African Historical Studies, Edward McMahon, University of Vermont

"A very good contribution to the literature is Comparative Constitutionalism and Good Governance in the Commonwealth...this book is an important contribution to the field of constitutionalism and will be useful to a wide audience, including those in politics, law, government, and African studies." H-Net, Penelope Andrews, School of Law, City University of New York

"This book makes an important contribution to the burgeoning field of comparative constitutionalism...the book insightfully and straightforwardly captures the complexity of the challenges of democratization in the region."
James Thuo Gathii, Albany Law School, I-Con

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