A journey through the realities of constitutional identity and constitutionalism in Africa

21 September 2021

Africa has experienced waves of constitutional ordering, which includes both the drafting of written constitutions and their implementation, all with the aim of regulating the exercise of state power. While the first wave was characterised by a colonialist rule replacing indigenous forms of government, the second saw the emergence of independence constitutions largely imposed by departing colonial powers. With the so-called ‘third wave’ of democratisation, there has been great expectation regarding the consolidation of democracy, rule of law and constitutionalism. However, the new constitutional order promised has not been realised due to several factors including reliance on Western-imposed constitutional concepts; a lack of resonance of the constitutions with indigenous culture and traditional values and structures; and, lack of alignment with the African social context. Each of the waves of constitutional ordering had its own characteristics and peculiarities. Each country thus has both a shared and unique ‘constitutional identity’.

Back: Trésor Muhindo, Shehaam Johnstone, Michelle Maziwisa, Francois Venter, Jan Erk, Johann Groenewald, Lukman Abdulrauf. Front: Carlson Ayangwe, Nico Steytler, Charles Fombad, Stephanie Rothenberger, Edward Kirumira

The 8th Stellenbosch Annual Seminar on Constitutionalism in Africa (SASCA 2021) took place at STIAS from 15 to 17 September with the theme of constitutional identity and constitutionalism in Africa. SASCA 2021 was jointly 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 STIAS; In partnership with the Konrad Adenauer Stiftung (KAS) Rule of Law Program for Anglophone Sub-Saharan Africa.

The seminar, among other things, discussed and questioned whether the decolonisation of African constitutions and the introduction of measures aimed at providing them with an African constitutional identity was a worthwhile pursuit in promoting constitutionalism on the continent or just a distraction.

With wide-ranging presentations from across Africa the seminar examined the relevance of the concept of constitutional identity to African constitutions; how constitutional identities have been formed in Africa; whether the widening gap between the principles in most African constitutions and practice lie in the fact that these constitutions lack an authentic constitutional identity; is this why entrenching a culture of constitutionalism, respect for the rule of law and good governance remains a challenge; are African traditional authorities, institutions and values part of national constitutional identity building; should constitutionalism form part of an African constitutional identity; and, how the pan-African ideal reflects the national or collective African constitutional identity.

In the opening plenary Professor Ben Nwabueze, First academic Senior Advocate of Nigeria, emphasised that the end of authoritative rule in Africa was the passing of an era but didn’t mean entrenched democracy. “Authoritarian reversion is only a short distance from authoritarianism,” he said. “We have to ask whether the outcome was truly democratic forms of government and how the constitutions are translated.”

Professor Yash Ghai of the Katiba Institute in Kenya pointed to the challenges of developing a universally accepted constitutional identity. “In a country like Kenya there is a tension between national and tribal identity. To what extent does the constitution navigate such dual identities?” He also asked if identity is something designed into the constitution from the beginning or is it acquired and where exactly is identity found in a constitution. “Does it include issues like protection of marginalised communities, recognition of customary law, settlement of land disputes, devolution of powers to communities to control their own affairs, language, culture and full recognition of diversity with no exclusions.”

“The process is often what really matters,” he said.

Different identities for different eras

In his analysis of South African constitutional development, Nico Steytler of the Dullah Omar Institute pointed out that South Africa has had five different constitutions – “three under apartheid and two since – all with very different identities.” He pointed to the factors that shape constitutions namely the primary objective, the nature of the constitution-making process, the scope, and the status of the fundamental laws. “Constitutional identity is not fixed, it is influenced by many factors.”

Stefanie Rothenberger of KAS pointed to the need for constitutional literacy. “A strong constitution is a core pillar of the rule of law,” she said. “We need to take a close look at the constitutional landscape to understand it – especially its deficits. This includes constitutional literacy which is a focus for KAS – how can citizens push for change or implementation of the constitution if they don’t know what’s in it?”

“A constitution must reflect the history, culture, language and soul of a nation,” she said. “The search for constitutional identity is about aligning with the aspirations of the people of Africa and the incorporation of African values into a constitution. In Germany there is a high identification of the citizens with the constitution even though it was one imposed by Western observers. On the 70th anniversary celebration in 2019 Germans showed great attachment to the constitution and constitutional patriotism. There are many reasons, but an important one is the strength of the judiciary and other institutions – these are central to making constitutions function and to constitutional identity. Constitutional engagement is necessary to increase the credibility of constitutions in Africa but different remedies and tools are needed in different countries.”

“Loyalty and trust in the constitution is built by citizens seeing the benefits of the constitution through its full implementation,” said Charles Fombad of ICLA.

In closing, the partners stressed the need for the SASCA collaboration to not only come up with new ideas but to ensure that these are communicated widely. All the papers presented during the seminar will be peer-reviewed for publication in the 7th volume of the Stellenbosch Handbooks in African Constitutional Law series to be published by Oxford University Press.

“The major objective of the programme is to fill the knowledge gap especially in Africa,” said Charles Fombad. “We are having ongoing discussions with Oxford to make the books open access and increase that communication.”

“Perhaps the most significant feature of this year’s seminar was the decision by the editors to dedicate the 7th volume of the series to honour the most renowned and outstanding African constitutionalists of our generation, Professors Ben Nwabueze of Nigeria and Yash Ghai of Kenya,” he concluded.


Michelle Galloway: Part-time media officer at STIAS
Photograph: Anton Jordaan

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