Constitutionalism and the Challenges of Leadership in Africa

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Moussa Faki, AU chairman

Ike Ekweremadu

Africans’ wishes for good governance, an end to leadership excesses and abuses, fair and equitable distribution of national resources, and respect for their rights have not materialised. Instead, agitations for partitioning , restructuring, ethnic irredentism, systemic injustices and inequities, weak, ineffective and overbearing leaders have increasingly become salient features in Africa.

So many Africans identify the constitution as the origin of the problems that undermine national unity and social equilibrium. Therefore, clinging on to the status quo is unwarranted and unwise. Rather than treating the constitution as an instrument of compromise, a vehicle for reconciling differences, or a means for peacefully resolving problems, some citizens view the constitution as a vehicle for legitimising their exclusion and domination by some ethnic irredentists.

Some citizens believe that the current constitutional arrangement has confined them to the margins of national life and deprived them of the benefits of belonging to their nation. Efforts to sell the status quo by some leaders have been met with calculated coldness by citizens reeling under the inequities and excesses of the system.

African leaders recognise the problems with their constitutions and have tried with varying degrees of seriousness and commitment to amend existing constitutions to reflect the aspirations of the people. In Nigeria, we have spent significant time and resources reviewing the constitution. Several amendments have been made, while some worthy proposals succumbed to the interplay of politics and ethnic consideration and could not pass. The constitutional review process is still ongoing and hopefully more amendments will be possible.

Nevertheless, I doubt that the issues that plague Africa can be meaningfully addressed, in most cases, through amending existing constitutions. Colonialism and military rule ended decades ago, but they left residues of bitterness, suspicion, and resentment that undermine efforts to promote national unity in most African nations.

The fears, anxieties, and concerns that distort and deform Africa are in part traceable to citizens’ views and feelings about the constitution. Africans, in most cases, have never really engaged in substantive deliberations and dialogue about the constitutional format for governing themselves. It may well be time for such a dialogue. The outcome and result of such dialogue and discussions will be a constitution acceptable to all.

Based on my experience as the Chairman of the Senate Committee on Constitution Review for about the last one decade, I can state that African constitutions face the following major challenges: devising an appropriate governmental structure that can address the unique problems and challenges in multi ethnic societies; a constitutional framework that will check the excesses of leaders and promote accountability in government; a framework – governmental and institutional – that will allay fears of marginalization, exclusion and domination widely prevalent among minority ethnic groups in Africa; and a system for addressing systemic injustices and ethnic inequities that fray the bonds of national unity and sense of patriotism.

The pertinent questions are: can Africa’s problems be fixed? And if so, how?

To revitalise democracy and enhance the prospects of a durable social order through the constitution, there is the need to address the question of government structure and check executive excesses. Some African leaders conduct themselves with stunning indifference to the restraints and limitations on their powers. A system of government that can check the tendencies, inclinations and opportunities for leadership excesses will serve Africa very well. To this end, I will render some suggestions.

Single Term

A more modest proposal seeks not the abandonment of the presidential system per se, but the redesigning of term limits for political chief executives in order to reduce the acrimonious conflict, divisiveness, and instability arising from partisan or factional competition for executive offices in the federation.

I support the proposals to transform the current tenure of two terms into a single term of five or six years. Among other advertised benefits, single-terms would avoid the distractions, manipulations and divisiveness of re-election campaigns, while facilitating a more rapid circulation or rotation of power among the various groups. But critics contend that such a change in term limits could remove electoral incentives for good governance, while further entrenching corrupt ethnocentric politics.

Others also oppose it purely on ethno-sectional and political interests- the very reason an attempt to include it in the Nigerian constitution failed in 2014.

However, we must learn from the failures and successes of older democracies. For instance, it is a fact that the Latin American democracies faced the same challenges we are facing today up to the 1970s. As many of them transited from military and autocratic regimes to democratic regimes, they discovered that the politics of succession, including incumbents’ penchant for self-perpetuation, was overheating the system, thus threatening their democracy. As a solution, they adopted the single term presidency until such a time their respective democracies matured and stabilized. Mexico still practices a single term of six years known as sexinio.

 In addition, the president should also appoint all or a predetermined number of his/her ministers from the parliament. Ghana and Kenya are good examples. This, in addition to providing for Question Time, will drastically reduce legislative-executive gridlock that has become a notorious feature of the presidential system, help create greater overlap and affinity between them, and also reduce the cost of governance.

Rotational Presidency

Government is the dominant player in African economies. Access to power or lack thereof affects public attitude to both governance and democracy. Thus, a single term presidency that rotates among the ethnic groups or geographical zones, even if for a defined period, may prove reassuring to ethnic groups and promote loyalty to the nation because every constituent part will be reassured that power will come their way at a given interval.

To further safeguard such arrangements, they can be locked as entrenched constitutional provisions.

Checking the Excesses of the Executive/Imperial presidency

One of the greatest threats to constitutional democracy in Africa is imperial presidency. Imperialist tendencies of many African leaders must be checked and disciplined if Africa is to make progress. Improvement depends on insisting that African leaders govern like democrats and imposing consequences on those unable or unwilling to do so. That is what a country’s constitution and the democratic process are designed to accomplish.

To achieve this, the following are suggested:

Hybrid Model of Presidential and Parliamentary System: The American presidential system is, no doubt, ideal for welding the pluralism inherent in African nations together. However, there is need to modify our presidential system to curtail executive excesses, and importantly, create greater overlap and affinity between the executive and the legislative arms of government. A hybrid of both the presidential and parliamentary systems will go a long way in keeping the presidency in check, while also reaping the benefits inherent in presidential system.

Reducing Presidential Discretion: South Africa provides additional good approach to managing the excesses of the president. Article 85 of the South African Constitution expressly prescribes how the President of South Africa can exercise presidential powers, thus limiting discretional exercise of powers. This should be emulated by other African nations.

 Replacing Impeachment with Vote of No Confidence: The very cumbersome, windy nature of the impeachment process as a way of kicking out a chief executive is another reason leaders disregard the constitution and even shun clear orders of the court, among other excesses. This process should be replaced with or backed up with a Vote of No Confidence. That way, early elections could be called to test the popularity of the government, as is the case in France and South Africa.

Although Section 87 of the Constitution of South Africa makes provisions for the impeachment of the President, Section 93 also provides for the compulsory resignation of the President at any time the parliament indicates that it no longer has confidence in him. It also allows the parliament to sack the President’s cabinet.

 Removal of presidential assent to constitution amendments: Importantly, the idea of presidential assent and signing of a constitutional amendment are unnecessary and an aberration. The decision of the United States Supreme Court in Hollingswort V. Virginia in 1798 on the question of presidential assent to constitution amendment as prescribed by Article V should be the standard for African states. The apex court held that “while it is permissible, a Presidential signature is unnecessary”.

Timeframe for assent to bills: Related to the foregoing is the presidential veto of conventional legislations. While in some African presidential systems, such as Nigeria and Uganda, the presidential veto can be overridden by two-thirds of the parliament, in most parts of Africa, Nigeria inclusive, presidents can leave a bill they are not interested in or consider inimical to their personal interests to gather dust on the shelf for as long as they want or until the expiration of the parliament that passed it. This way, great initiatives have been buried and public resources expended on processing such bills wasted.

There is need for the equivalents of Article I Section 7 of the United States Constitution on the timeline of ten days (except Sunday) for presidential assent to a bill failing which it automatically becomes a law.

A constitution amendment to provide for a 30-day mandatory period for the president to sign or return a bill, failing which it automatically becomes a law was recently approved by the National Assembly of Nigeria and is awaiting the approval of State Houses of Assembly and subsequently, the president.

Restructuring

Citizens feel that central governments are too big, too powerful and out of control. No argument that is both coherent and respectable can be made to support the continued emasculation of the component states that make up the various nations.

 African constitutions should, therefore, espouse a federal structure characterized by: weaker centres and stronger federating units; fiscal federalism to catalyse competitive development, industry, and creative governance; well-defined tiers of government to make local government the business of component states; decentralized policing to enhance security; and fewer numbers of federating units to address structural imbalances, reduce cost of governance, free resources for development, and take advantage of the economy of scale.

Proportional Representation

Constitutional democracy emphasises supremacy of the majority, which in most cases adversely affects the rights of minorities. The Proportional Representation system is increasingly becoming popular around the world, suggesting an increasing movement away from pure Plurality-Majority system. This may not be unconnected with the value rendition of fairness, depth of representation and inclusiveness as well as availability of more adaptable variants in the system. By this system parties are represented in Parliament on the percentage of the votes they secure in election, thus ensuring that their efforts are rewarded.

Amendment or Replacement of Constitutions in Africa

Sadly, most African constitutions provide only for amendments, but have no provisions for establishing a new constitution. Therefore, the first step should be to amend the constitutions to make such provisions. Kenya replaced her 1969 Constitution in 2010 by first amending the former constitution to provide the legal authority to establish the present Constitution.  Zimbabwe and Brazil have also replaced their old constitutions through the same process as well.

In 2014, Nigeria tried to amend Section 9 of the 1999 Constitution to provide for how a new constitution may come into place. Unfortunately, it was shot down by ethno-sectional suspicions.

 Nevertheless, providing for this procedure will bolster quests for a truly people’s constitution.

Conclusion

As Africa grapples with the challenges of deepening democracy, leaders must think creatively about how to use the constitution to create a durable democratic order.

 In doing so, constitution drafters in Africa must remember that it is unhelpful to copy constitutions from other countries without efforts to understand the continent’s peculiar problems and challenges and what they want the constitution to accomplish. I believe that until African countries truly have a people’s constitution, the practice of constitutionalism will remain unsatisfactory. Africa’s problems and challenges summon us to seek solutions with energy, care and deliberation, guided by the best interests of our nations. And we must answer the charge.

 The good news is that Africa is not beyond redemption. Despite the challenges, there is hope. This hope will be realised with new constitutions that are modern and reflective of our local peculiarities, positive attitude of citizens to the system but most importantly by visionary and just leaders, whom we must all seek and enthrone from South to North of Africa and from the West, Central and to the East of Africa.

––An abridged version of the 10th anniversary lecture of the Centre for Media and Peace Initiatives delivered by the Deputy President of the Nigerian Senate in New York, USA, recently.