INTRODUCTION

‘Commonwealth’ has been inserted into the title of this chapter for two reasons: firstly, my own work over the years has concentrated on the Anglophone countries of sub-Saharan Africa; secondly, the Commonwealth has established fundamental principles of governance against which the performance of member states may be assessed. What can the experience of other African countries teach students of South Africa's often painful constitutional journey? What general lessons, if any, emerge from the experience of African countries for those undergoing a process of transition?

A comparative perspective also calls for an historical perspective. In the history of the political and constitutional evolution of African countries in the second half of the twentieth century and the turn of the twenty-first, a number of overlapping eras of transition may be discerned. Firstly, the era of decolonisation, characterised by the ‘Wind of Change’ which began to blow in sub-Saharan Africa with the independence of Ghana in 1957. By 1975, the whole of sub-Saharan Africa was decolonised except for Southern Rhodesia (where the white minority regime of Ian Smith had made an illegal declaration of independence in 1965), South West Africa (occupied by South Africa) and, of course, South Africa itself as far as the majority of the population was concerned. Sadly, the 1970s and 1980s proved the lost decades of good governance, characterised at best by the establishment of ‘one-party states’ and at worst by the replacement of constitutional government by military regimes ruling by decree.

In the 1990s, a new era of transition – a second wind of change – brought about fundamental constitutional changes throughout sub-Saharan Africa. In Anglophone, Francophone and indeed Lusophone Africa, one-party and military regimes were replaced by constitutional orders designed to promote plural democracy. Generally, however, the new constitutional dispensations reflected presidential models owing more to Washington and Paris than to Westminster. It is in this context of change across the continent that the remarkable transition in South Africa from 1990–1994 should be seen.

There may come a time in the life of a nation when a situation arises that seriously threatens its security or stability. In response, a government may legitimately declare a state of emergency and make emergency regulations designed to counter the danger. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) recognises that ‘in time of public emergency which threatens the life of the nation’ a state may take measures derogating from its obligations under the Covenant. The real concern arises from the potential abuse of emergency powers: for example, where an unscrupulous government declares a state of emergency in order to maintain itself in power, then suspends or abrogates key constitutional provisions and effectively rules by decree, for an indefinite period. This is a scenario that is aptly called the ‘permanence of the temporary’ and calls for the development of effective constitutional safeguards against such abuse of power. This issue is examined in the first part of the chapter. A frequent companion of a state of emergency is the use of preventive detention and this area is considered in the second part of the chapter.

States of emergency

During the colonial period, states of emergency were imposed in Kenya, Northern Rhodesia, Southern Rhodesia and Nyasaland as efforts were made to retain political and economic control and to stem the tide of African nationalism.

The relationship between civilian government and the military

The most prized right of any political community is the right to govern itself. It follows that good governance and undue military involvement in the political process are incompatible and that a civilian government must retain supremacy over the military. In essence this means that the military must have sufficient power and autonomy to carry out its constitutional role but that it must not dominate or unduly influence other aspects of governance or enjoy an excessive share of national resources. As the ANC in South Africa declared in its seminal 1992 policy statement Ready to Govern, the security forces should be:

The principle of ‘civil supremacy’ was also considered by the Sub-Council on Defence and the Joint Military Co-ordinating Council during the 1993 constitutional negotiations in South Africa. In doing so, it noted:

A constitution enjoys a special place in the life of any nation. It is the supreme and fundamental law that sets out the state's basic structure including the exercise of political power and the relationship between political entities and between the state and the people. As the former Chief Justice of South Africa, Justice Ismail Mohammed, once observed, a constitution is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed, but it is:

It also shapes the organisation and development of a society both for the present and for future generations. As the Preamble to the Constitution of Uganda 1995 puts it:

This notion is in sharp contrast to that of the colonial period and much of the immediate post-colonial period. This chapter therefore examines the history of constitutionalism in the ESA states prior to 1990 and traces the reasons for the making of new constitutions in the 1990s.

The return of multi-party democracy to ESA states has renewed interest in the role of parliaments and parliamentarians. As discussed in chapter 5, the executive's right to govern derives from the legislature and, as Fall puts it, legislatures are:

Executive dominance of the legislature means that others are less sanguine and regard them as largely ‘rubber-stamp’ bodies. Some have even questioned the competency of members themselves. As a former Speaker of the House of Assembly in Zimbabwe once reportedly put it:

Such critical views probably represent the majority of opinion. Yet good governance requires that legislatures function effectively and this chapter explores some ways in which Fall's view might yet be achieved.

Membership of the legislature

The calibre and make-up of parliament is key to developing an effective legislature. There are some standard, and largely uncontroversial, grounds relating to disqualification from membership.

Introduction

Access to the political system is an integral part of good governance and is fast becoming a normative rule of the international system. Increasingly, governments now have to recognise that their legitimacy depends on meeting the international community's expectations and that those seeking validation of the empowerment process must patently govern with the consent of the governed. ‘Access’ in this context raises several constitutional issues. These include, firstly, freedom to organise political parties and generally to participate in the political process, including ensuring fair access for women and minorities; secondly, freedom of political expression and the right to campaign free from intimidation or other undue influences; and thirdly, the right of the adult population to vote and to elect or re-elect governments at regular intervals in free and fair elections. It is on such issues that this chapter and the next focus attention.

Political parties and democratic governance

Political parties, defined as distinctive organisations whose principal aim is to acquire and exercise political power, are the dominant feature of contemporary organised political systems.

The exercise of presidential power

Like others the world over, constitutions in the ESA states typically provide for an executive arm of government with specific powers and responsibilities. Yet the necessity for government creates its own problems and in particular the problem of how to limit the arbitrariness inherent in government and to ensure that its powers are used for the good of society. In any political system, whilst the executive is often the major initiator and executor of public policies it also has the potential for operating as a super-ordinate branch of the political system with tentacles that stultify the other branches.

A president heads the executive branch of government in all the ESA states, with the exception of Lesotho and Swaziland. As Head of State, Head of Government and Commander in the Chief of the armed forces, the president necessarily enjoys considerable constitutional powers and duties. Responsibilities include assenting to Bills; convening and presiding over Cabinet meetings; appointing and dismissing Cabinet and other ministers; exercising the power of pardon and the prerogative of mercy; and declaring a state of emergency.

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. 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’. Yet millions of Africans live in acute poverty, have no access to safe drinking water and are illiterate. 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.

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.

The new ‘winds of change’ in the 1990s brought about dramatic constitutional changes throughout the ESA region. So much euphoria; so much hope. But the question remains as to whether the new constitutions are autochthonous, popular and durable documents that can help give people ‘a better future by establishing a socio-economic and political order … based on the principle of unity, peace, equality, democracy, freedom, social justice and progress’.

The answer depends upon many factors, not the least of which being the political will to make constitutionalism take root in the ESA states. The starting point, however, is to examine the adoption of a national constitution through a process which can affect fundamentally the document's substance and legitimacy. This is the focus here. It is argued that the process must come from the integration of ideas of the major stake-holders in the country including the government, political parties, both within and without Parliament, organs of civil society and individual citizens. It follows that the process is one which the government should neither control nor unduly influence nor should it be a merely formal technical exercise. But it involves the making of a complex bargain between the various stake-holders with often fiercely contested political trade-offs. Further the process must be transparent, i.e. it must be undertaken in full view of the country and the international community. Such a process provides the best opportunity for a state to adopt an autochthonous, popular and durable constitution.