Many
governments of quite different types wish to describe themselves as democratic.
Constitutionalism in this richer sense of the term is the idea the government
should be limited in its power and that its authority depends on its observing
these limitations. In some cases the term has even been incorporated into the
official name of the state although it is a noticeable paradox that in most
cases where this happened (e.g. the German Democratic Republic, the Peoples’
Democratic Republic of Yemen or the Democratic Republic of Congo) the states
concerned appear significantly undemocratic on governmental powers, adherence
to the rule of law, and the protection of human rights.
Constitutionalism
is the antithesis of arbitrary rule. Its opposite is despotic government, the
government of will instead of law. As far as democracy is concerned, its
different definitions revolve around what Abraham Lincoln referred to as
“government of the people, by the people and for the people”. It is a political
system characterised by the participation and government of the people through
their freely elected representatives, by the recognition and promotion of human
and peoples’ rights, including the rights of the opposition and the minorities.
According
to Rosenfeld, constitutionalism is “a three-faceted concept”, as it requires
imposing limits. The people are sovereign in any democratic government which is
based on the rule of law expressing their will. Modern constitutionalism is
democratic constitutionalism and modern democracy is a constitutional one. Britain
has been generally cited as a case of democracy without a constitution, in
ignorance of the fact that constitutionalism is as much known in Britain as it
is in democratic countries with a supreme constitution. Britain also has a
constitution, even if this constitution is a customary or unwritten one. Constitutionalism
and democracy are so related that “constitutional democracy” may appear to be a
tautology.
Nowadays,
there is practically no African country without a written constitution and
whose leaders do not profess their faith in the ideals of constitutionalism and
democracy. The present paper revisits the twin concepts of constitutionalism
and democracy briefly. It also reflects on the related concepts of
constitution, elections, and multipartyism. Against this theoretical
background, it highlights the current state of constitutionalism and democracy
in Africa where elections have been placed high on the agenda and stresses some
challenges that need to be overcome to ensure the establishment and
consolidation of constitutionalism and democracy on the continent. One of the
mistakes generally made by some politicians, and even by some intellectuals,
has been to indulge in the confusion between constitutionalism and written
constitutions. Grey and Olukoshi rightly deplore such confusion between constitutionalism
as defined earlier and written constitutions, or between constitutionalism and
the constitution-making process. Constitutionalism is embedded in the idea that
the government should be limited in its powers and that its authority depends
on its observing these limitations. These limitations are in the form of
individual or group rights against government, such as rights to free
expression, association, equality and due process of law.
The
attempt to limit governmental arbitrariness, which is the premise of a
constitution, has several times met with failure. This failure has had a
negative effect on both human and material development of Africa. By
development we mean a “more inclusive concept with its social, political and
economic facets. It is the qualitative and quantitative positive transformation
of the lives of a people that does not only enhance their material well-being
but also ensures their social well-being including the restoration of human dignity”
(Osagie 1985). In other words, development should be “a warm, gradual and
considerate process in its attempt to alleviate man’s economic and
technological standard or conditions without disregarding or disrespecting any
aspect of man’s existing social, cultural and political values” (Ifeyinwa
2004).
Development
is about human, development cannot be divorced from the peoples. Any reasonable
developmental efforts must have roots in the people it is meant for, before it
can be successful. The adherence to the dictate of constitutionalism means
limiting the arbitrariness of governmental power and failure of it means the
enthronement of arbitrariness of governmental power. In that regard, this work
set out to examine the reason why enthronement of constitutionalism has
remained practically impossible in most African state; despite the fact that
many constitutional conferences had been held and many constitutional drafting
committees have being set up and completed their jobs, yet the idea of
constitutionalism remains a day dream in many African countries.
The
advent of colonialism in Africa and the subsequent takeover of African states
brought about the introduction of modern forms of governance that necessitate
modern form of constitution which is written and documented. The introduction
of this constitution into the colony is regarded as an imposed constitutionalism.
Schepple (2003) made a distinction between constitutionalism and imposed
constitutionalism. According to him; constitutionalism is legitimate, but the
imposed constitutionalism is not. Imposed constitutionalism is illegitimate
because it is being drafted “in the shadow of the gun”.
None
of the African countries under the colonial rule had the opportunity of
substantial local participation in the constitutional process. Rather, they saw
a substantial intervention and pressure imposed from outside to produce a
constitutional outcome preferred by the colonizer. Even after independence, it
has been discovered that almost all the constitutions drafted by African states
still follow the same pattern of not allowing a substantial local
participation. A noticeable negativity of this imposition is the crisis of
legitimacy of the constitutional outcome. Immediately after the independence,
the post-colonial African leaders visibly and notoriously adjusted to the
structure of oppression and exploitation which they inherited. This trend has
taken a new dimension today, according to Ade Ajayi (1992) “the urban political
elite has alienated itself from its own people such that in those states which
purport to maintain a measure of representative government, the political
leaders only go to their supporters during election when they need votes” e.g.
Zimbabwe because leaders make promises prior to the elections and it becomes
the last they are heard of until the next election.
The
situation has become worse to the extent that, many people have lost confidence
in the democratic process, because, the elite, like the colonial state, which
they inherited, have grown apart from the society. Increasingly, the state and
the elite who control the state, have become predicators of the society
(Ade-Ajayi 1992) The emphasis here is that, these leaders do not see themselves
as statesmen who are expected to develop “a keen awareness of collective
responsibility in the long term” (Joseph 2000), but “are like colonial
administrators, overseers who are in power to ensure that the people adjust to
the structure of oppression and exploitation which they manage” (Oladipo 1998).
Chinua Achebe (1985) opines that most Africa leaders are not morally upright.
They characteristically coerce all personnel and other arms of government to
work in their interest. The consequence of this is that, the post colonial
state and institutions were as oppressive as their colonial precursors. They
were exploitative to the extent that they serve as avenues for capital
accumulation and status attainment by the leaders. Thus, post-colonial African
states could not guarantee freedom and justice for ordinary Africans. This
being the case because it could not provide “the essential foundation for the
pursuit of public benefits- peace, welfare and the opportunity for individuals
to pursue their own happiness” (Christopher 1991). In an ideal society, leaders
are expected to be role models. But the problem with African leaders has been
the issue of bad leadership as they lack discipline and the citizens are
following suit. African leaders have always been known for not obeying the
constitution, since the constitution itself lacks merit. The colonialists have
already set in place a bad example of governance, but Africa lacks good
leadership that will confront this dilemma and thus take Africa out of its
oppressive state.
They
acquired absolute power, which made it possible for them to ensure that the debilitating
condition (Afolayan 2009) Leadership is observed to be the most critical, such
that many depict the continent as “a faraway place where good people go hungry,
bad people run government, and chaos and anarchy are the norm.” (Alex Thomson
2002). More so, it has been rightly observed that under “the various oppressive
authoritarian regimes which African countries have had the misfortune to chafe
under for the greater part of its postcolonial history, Africans have been
treated to a bastardization of constitutionalism and growing impotence of the
judiciary in the face of countless acts of impunity, executive lawlessness and
economic brigandage by praetorian guards that had imposed themselves on the
political landscape of the nation” (Oyebode 2005).
One
of the features of Constitutionalism is that it requires political order
governed by the laws and regulations. It describes the system of government
regulated by the supreme law of the land which is the constitution. To start
with, a constitution is a body of rules and regulations written as well as
unwritten where the government is organized and its functions (Johari 2009). It
can also be defined as the basic or foundation laws of a political society. The
constitution is the supreme law of the political society, it is higher than and
takes precedence over other laws of a society. According to Hans (2012)
“constitutional government is a regime type that is characterized by the fact
that ‘government’ operates within a set of legal and institutional constraints
that both limit its powers and protect the individual liberty of the citizens
of a polity”. Constraint elements are the set of rules or basic laws that
establishes the duties, powers and functions of the government and there are
enshrined in a constitutional state. In this vein, a constitutional state is a
state in which the powers of the government is based on the constitution and
democracy and provides the guideline on which the government should operate.
Constitutionalism
is therefore, a government conducted in accidence with and within the limits
set by the fundamental law of the land (Almon, 2011). It desires to have
political institutions and order in which the powers of the government are
limited; it also tells us how political affairs are ruined in any given
country. In its critical sense includes the ideal of nationalism, democracy and
limited government and embraces the supremacy of the law and not individual or
organizations.
On
the other hand, Constitutionalism desires a political order in which the powers
of the government are limited; it stands for a government regulated by the
supreme law of the land (Johari, 2009). It embraces the government which
operates within stipulated framework. According to Moller (2012) to be genuinely
constitutional in character, a government must comply with fundamental
requirement; the government must operate in accordance with the provision of
the constitution, the government must also not exceed the authority granted to
it by the constitution. However, the essential features of constitutionalism
are the government’s compliance with the basic legal requirement. In this
scenario, the central purpose of constitutionalism is limited governmental
powers, to check and restrain the person who holds public office and exercises
political authority.
In
theory and practice, therefore, constitutionalism and the democratic process
are closely intertwined. However, democracy and constitutionalism in our
present context must thus be seen as mutually reinforcing notions (Mbondenyi
and Ojienda, 2013). In this scenario, it recognizes the principle of separation
of powers and it is identified with the system of divided powers.
Constitutionalism is the concept of having a limited and civilized government
that stand on the principle function of the constitution. In order for the
government to be effective and operates within the vicinity stipulated by the
law, there must be separation of powers. In simplest rendition,
constitutionalism denotes a form of government based on a prescribed division
of powers and among public officials (Mbondenyi and Ojienda, 2013).
Constitutionalism in Zambia stipulates the existence of political institutions
that is the Executive, Legislature and Judiciary. According to Uwensuyi (2006)
“it must be observed that true insight of the concept of constitutionalism must
involve an understanding of power distribution”. Separation of powers indicate
that different arms of the Zambian
government to wit, Executive, Legislature and Judiciary should be separate
and distinct and must not be exercised by the same person or authority. This
however, helps to provide checks and balances without any interference from any
one or authority.
According
to Johari (2009) constitutionalism by dividing powers provide a system of
effective restraints upon governmental action. It is very cardinal in Zambia
because the three organs of government are kept apart from each other in the
interest of individual liberty. However, in most cases, separation of power is
just on paper, this is because top judicial officials are appointed by the
president. Part 6, article 93 clause 1 of the constitution of Zambia articulates
that the chief and deputy chief justice, supreme and high courts judges to be
appointed by the president (Zambian constitution, 1996). With this in place
makes the judiciary not purely independent as the judges may operate under the
instruction of the president or executive branch of government. For example the
acquittal of former Zambian president Fredrick Chiluba was as the result of
interference by the former president Banda.
Elections
are also cardinal to constitutionalism and this shows clearly that elections
are indicators of constitutionalism. Constitutionalism embraces free and fair
elections frequent held elections which also is a central feature of democracy (Mbondenyi
and Ojienda, 2013). Free and fair elections postulate that people are at
liberty to participate in elections either as a voter or candidate. Part 4,
article 35 of the Zambian constitution stipulates that a person shall hold the
office of the president for 5years and thereafter elections shall be conducted
(Zambian constitution, 1996). In this scenario the constitutional and legal
order allows people to freely associate by forming political parties as
promulgated by the constitutional that Zambia is a multi-party democratic
state, to advance their interest. In addition, the point must be clearly stated
that elections alone do not confer constitutionality; the important aspect is
whether such elected government is limited by predetermined rules and are the
elections free and fair (Mbondenyi and Ojienda, 2013). In many instance
election are regular although no free and fair as many at times they are characterised
by rigging.
The
rule of law requires that the government operates within its vicinity; it
embraces the government that does not undermine the supremacy of the
constitution. It requires that the organs of the government and people holding
public offices operate through the law (Harst, 2002). According to Dicey (1959)
the rule of law has three concepts; the supremacy of the law as opposed to
arbitrariness by government, equality of all people before the law and
establishment of rights of individuals. However, the law must be enforced by an
independent judiciary separate from lawmakers and it must treat all people
equally. The law must respect and preserve the dignity, equality and human
rights of all persons. In this scenario, the law must establish and safeguard
the constitutional structure necessary to build free society in which citizens
have meaningful voices in shaping and enacting the law governing them.
The rule of law serves as a buttress for the
democratic principles (Almon, 2011). Since powers of government affect
individual liberty may only be conferred by parliament. In line with this
doctrine of government according to the law, a person directly affected by
government actions may be able, if necessary to challenge the legality of that
action before the courts of law. Further the rule of law requires that public
authorities and officials are made subject to effective sanctions if they
breech the law. In addition, this has been applied to all former presidents for
abuse of authorities. India is a democratic country with a written constitution.
Rule of law is a basis for governance of the country and all structures are
expected to follow it in letter and spirit. Over the past six (6) decades
excessive bureaucratization and alienation of the rulers from the ruled has
been the order of the day.
In nutshell, constitutionalism embraces the government
limited by the supreme law of the land and compliance to the guidelines of the
constitution. In this scenario, constitutionalism supports the existence of
frequent held elections, limited government, adherence to the law, checks and
balances, separation of powers, protection of human rights and equality before
the law or no one is above the law. In Africa, countries like Zambia,
constitutionalism is being observed even though not completely achieved as
certain qualities have been scored such as frequent elections, separation of
powers, protection and promotion of human rights and limited government. While
these qualities are scored some of them are not fully achieved and they stand
explained on paper but not carried out in our day to day lives.
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