Article by H. Kwasi Prempeh
In this Article, I make two broad claims: first, that the social and political contexts of the current constitutionalism project in Africa are different in fundamental respects from those of past periods and thus indicate conditions favorable to the emergence of constitutionalism in Africa's new democracies; second, that, while current trends represent a significant new opportunity—a “constitutional moment”—to build constitutionalism in Africa, the model that Africa's lawyer-dominated reformers appear to have settled on—juridical constitutionalism—is a “quick fix” that fails to engage or redress persistent defects in the structure and distribution of power in the postcolonial African state. By ignoring the promise of structural constitutionalism, which would constrain executive hegemony and the centralized unitary state through horizontal and vertical dispersion of governmental power, and focusing instead on judicial protection and enforcement of enumerated rights, Africa's current constitutional reform project places undue faith in judicial review. This also fails to reckon longstanding limitations that confront constitutional litigation and adjudication in Africa and undermine the ability of Africa's courts to deliver on the promise of constitutionalism.
In Part I of this Article, I examine why judicial review and constitutionalism have hitherto failed to emerge or survive in Africa, despite the seeming obsession with constitutions and constitution-making on the part of Africa's political elites. In particular, I critically evaluate the view—widely held among African lawyers—that the African judiciary bears a substantial, if not the primary, portion of the blame for the demise of constitutionalism in the early decades of African independence. In examining the empirical bases of this claim, I review a sample of influential constitutional cases decided by various national courts in common law Africa in the early postcolonial period. Placing these cases within their relevant historical, social, and political contexts, I argue that the problem with the African judiciary during this period was not, as the lawyer-critics allege, a matter simply or primarily of “bad” judges or “bad” doctrine, but rather one of a severe deficit of empirical legitimacy for constitutionalism that resulted from the successful mobilization by Africa's political elites of the ideology of “development” to underwrite their authoritarian projects. I argue that by sourcing their legitimacy in supraconstitutional values rooted in the material condition and needs of the people, the new managers of the postcolonial African state created for the judiciary a “counter-majoritarian difficulty” of sorts that the latter could not have reasonably overcome. I offer support for this view by examining the legacy of colonialism in Africa and how the developmental challenges that colonialism left in its trail facilitated the twin processes of delegitimization of constitutionalism, on the one hand, and the legitimization of authoritarianism, on the other. I suggest that blaming the judiciary for the failure of constitutionalism misdiagnoses the problem and misguidedly leads the way to a “technocratic,” rather than structural, solution to the problem of constitutionalism in Africa.
Part II of this Article brings the discussion to the present to address whether prospects for constitutionalism in Africa have brightened or whether the recent constitutionalism revival is yet another false start. I engage in this discussion by focusing on a particularly fatalistic position taken by Kenyan legal scholar H.W.O. Okoth-Ogendo. Okoth-Ogendo disputes the viability of constitu-tionalism in Africa in light of the absence of a tradition of constitutionalism and the “dismal” socioeconomic conditions in which the average African continues to live. In rejecting such pessimism, I point out critical differences between the social and political contexts of the contemporary project and those of the past, noting, in particular, the significance of the passing of Africa's “Founding Fathers” from the political scene, the emergence of presidential term-limits as a norm in Africa's new democracies, and the growth of a civic-minded civil society. Although I reject Okoth-Ogendo's pessimism, I recognize defects in the current constitutional reform agenda, which exist despite the favorable trends and opportunities. Specifically, I note that while revised constitutions in Africa have democratized access to political power and empowered national judiciaries to enforce bills of rights, they have done little else to reconfigure, horizontally or vertically, the distribution of power and authority within the postcolonial state. Rather, Africa's current constitutions have preserved the centralizing tendencies of the founding elites. As a result, the state in Africa remains highly centralized, presidents continue to wield disproportionate power and resources, parliaments remain functionally weak (if more representative), and “winner-take-all” politics is still the order of the day. The burden of policing and checking the abuse of power in contemporary Africa thus rests uneasily on the shoulders of private litigants and the judiciary.
Finally in Part III of this Article, I examine the perils inherent in a policy of resting the future of African constitutionalism too heavily on judicial review. I highlight the challenges that confront constitutional litigation and adjudication in Africa. In particular, I identify deficiencies in the jurisprudential or doctrinal outlook, social legitimacy, and independence of Africa's courts and how these might undercut the ability of judicial review to advance constitutionalism in Africa.
About the Author
H. Kwasi Prempeh. Associate Professor of Law, Seton Hall University School of Law. J.D., Yale Law School.
Citation
80 Tul. L. Rev. 1239 (2006)