Africa's "constitutionalism revival": False start or new dawn?

International Journal of Constitutional Law

Volumn 5, Issue 3, 2007, Pages 469-506

  Prempeh, H Kwasi ^a  

^a SETON HALL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547862719     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom016     Document Type: Article

References (152)

1. See GORAN HYDEN, AFRICAN POLITICS IN COMPARATIVE PERSPECTIVE 107-108 (Cambridge Univ. Press 2006) (noting parallels between the Benin National Conference and the French Third Estate of 1789).
2. The term "constitutional moment" is Bruce Ackerman's famous coinage for those dramatic episodes in a country's constitutional development when previously settled understandings as to the nature and meaning of the extant constitutional order are repudiated and replaced by new understandings that are widely accepted as legitimate, even though the discontinuity might have occurred without recourse to the formal processes of constitutional change. See generally BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (Harvard Univ. Press 1998).
3. Mary L. Dudziak, Who Cares About Courts? Creating a Constituency for Judicial Independence in Africa, 101 MICH. L. REV. 1622, 1630 (2003) (reviewing JENNIFER A. WIDNER, BUILDING THE RULE OF LAW: FRANCIS NYALALI AND THE ROAD TO JUDICIAL INDEPENDENCE IN AFRICA (2001)).
4. See, e.g., State v. Grootboom 2000 (11) BCLR 1169 (CC) (state has judicially enforceable constitutional duty to enact and implement reasonable legislative measures to meet the housing needs of populations living in destitute conditions)
5. August v. Electoral Commission 1999 (4) BCLR 363 (CC) (constitutional right to vote extends to convicted and remand prisoners, and electoral authority is obligated to make appropriate arrangements to enable such citizens to register and to vote).
6. As social scientists C.R.D. Halisi and Scott Bowman have observed, African exceptionalism - the "idea that the problems that plague Africa are uniquely African" and thus must be analyzed without reference to or reliance on "universal categories of explanation" "has become the golden rule of analysis" for many students and observers of Africa. C.R.D. Halisi & Scott Bowman, Theory that Matters: The Intellectual Legacy of Richard L. Sklar, in AFRICAN POLITICS IN POSTIMPERIAL TIMES: THE ESSAYS OF RICHARD SKLAR lXi (Toyin Falola ed., Africa World Press 2002).
7. See SAMUEL HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWEENTIETH CENTURY (Univ. of Oklahoma Press 1991).
8. Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771 (1997).
9. See Christopher Fomunyoh, Dermocracy in Fits and Starts, 12 J. DEMOCRACY 37 (July 2001) (reviewing the various national conferences held in francophone Africa following the Benin example).
10. GORAN HYDEN, AFRICAN POLITICS, supra note 1, at 20 ("[S]ince the early 1990s ... being voted out of power is an increasing possibility. Eighteen heads of state have lost elections and been replaced by someone else.")
11. E. Gyimah-Boadi, The Rebirth of African Liberalism, in DEMOCRATIZATION IN AFRICA 34 (Larry Diamond & Marc F. Plattner eds., Johns Hopkins Univ. Press 1999).
12. Larry Diamond, Introduction to DEMOCRATIZATION IN Africa, supra note 10, at ix.
13. RENÉ DUMONT, FALSE START IN AFRICA (Andre Deutsch 1966).
14. Achille Mbembe, Democratization and Social Movements in Africa, 1(1) AFRICA DEMOS 4 (1990)
15. Richard Joseph, The Reconfiguration of Power in Late Twentieth-Century Africa, in STATE, CONFLICT, AND DEMOCRACY IN AFRICA 61 (Richard Joseph ed., Lynne Rienner 1999) ("African regimes were eventually prepared to reconfigure their political institutions to make continued flows of aid and loans from Western financed bilateral and multilateral agencies possible").
16. H.W.O. Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an African Political Paradox, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 65 (Douglas Greenberg et al. eds., Oxford Univ. Press 1993).
17. Nigerian professor Adebayo Olukoshi has defined "Afro-pessimism" as "that state of mind whereby nothing good is seen as presently or potentially coming out of Africa in the near term." Adebayo Olukoshi, State, Conflict, and Democracy in Africa: The Complex Process of Renewal, in STATE, CONFLICT, AND DEMOCRACY IN AFRICA, supra note 13, at 451.
18. See LUCIAN W. PYE, ASPECTS OF POLITICAL DEVELOPMENT 71 (Little Brown 1966) ("Nationalist leaders in debating the righteousness of their cause customarily employed the vocabulary of liberal democracy").
19. Crawford Young, Africa: An Interim Balance Sheet, in DEMOCRATIZATION IN AFRICA, supra note 10, at 64.
20. See, e.g., T. O. Elias, The New Constitution of Nigeria and the Protection of Human Rights and Fundamental Freedooms, 2 (2) J. INT'L COMMISSION OF JURISTS (1960) (examining the important political and civil liberties provisions of Nigeria's Independence Constitution).
21. THE EDITORS OF THE SPARK, SOME ESSENTIAL FEATURES OF NKRUMAISM 39 (International Publishers 1965).
22. See generally KWAME NKRUMAH, AFRICA MUST UNITE (Heinemann 1963).
23. NKRUMAH, supra note 19, at 39.
24. Id. at 38.
25. See, e.g, JULIUS K. NYERERE, FREEDOM AND DEVELOPMENT/UHURU NA MAENDELEO 174 (Oxford Univ. Press 1973) ("[T]he Independence Constitution of Tanganyika was neither particularly suited to the needs of development nor was it entirely ours").
26. See BEREKET H. SELASSIE, THE EXECUTIVE IN AFRICAN GOVERNMENTS 39 (Heinemann 1974).
27. See Robert H. Jackson & Carl G. Rosberg, Sovereignty and Underdeveloprnent: Juridical Statehood and the African Crisis, 24 J. MOD. AFR. STUD. 1 (1986).
28. ALEX THOMSON, AN INTRODUCTION TO AFRICAN POLITICS 256 (Routledge 2004).
29. See, e.g., Arnold Rivkin, The Role of Institution-Building in Africa, in NATIONS BY DESIGN: INSTITUTION BUILDING IN AFRICA 8 (Arnold Rivkin ed., Anchor 1968) ("At independence, every new African country is a state in the limited sense only of having acceded to international sovereignty, i.e., general recognition by the community of international states and membership in the United Nations. Beyond this nominal quality of statehood, the new African countries came to independence with the shell rather than the substance of statehood")
30. MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM 287 (Princeton Univ. Press 1996).
31. See generally THE EARLY STATE IN AFRICAN PERSPECTIVE (S.N. Eisenstadt, Michel Abitol, and Naomi Chazan, eds., Brill 1988).
32. Abubakar Tafawa Balewa, who would later become Nigeria's first federal prime minister, noted in 1948 that, "Since 1914 the British Government has been trying to make Nigeria into one country, but the Nigerian people themselves are historically different in their backgrounds, in their religious beliefs and custom and do not show themselves any signs of willingness to unite.... Nigerian unity is only a British invention." Quoted in MARTIN MEREDITH, THE FATE OF AFRICA, FROM THE HOPES OF FREEDOM TO THE HEART OF DESPAIR: A HISTORY OF FIFTY YEARS OF INDEPENDENCE 8 (Public Affairs 2005).
33. K. A. BUSIA, AFRICA IN SEARCH OF DEMOCRACY 37-38 (Praeger 1967).
34. Id. at 38.
35. MEREDITH, supra note 29, at 151.
36. It was the policy of the Belgian colonial authorities not to educate Congolese to assume roles much higher than clerks. Thus, at independence clerks were among the best-educated classes in the Congo. See CRAWFORD YOUNG, POLITICS IN THE CONGO (Princeton Univ. Press 1965).
37. TOM MBOYA, FREEDOM AND AFTER 159 (Little Brown 1963) (quoting Tanzanian president Julius Nyerere).
38. NYERERE, supra note 22, at 54.
39. See, e.g., REPUBLIC OF KENYA, AFRICAN SOCIALISM AND ITS APPLICATION TO PLANNING IN KENYA (Government Printer 1965) ("The sharp class divisions that once existed in Europe have no ... parallel in African society. No class problem arose in the traditional African society and none exists today among Africans").
40. MBOYA, supra note 34, at 85 ("[I]t is difficult to form genuine political parties. The divisions there might be would be those of tribe or individual ambition, but very rarely could there be genuine ideological or class differences").
41. W. ARTHUR LEWIS, POLITICS IN WEST AFRICA 55 (Oxford Univ. Press 1965).
42. See Donald Rothchild, The Limits of Federalism: An Examination of Political Institutional Transfer in Africa, 4 J. MOD. AFR. STUDS. 275 (1966).
43. Malawi's postcolonial president Hastings Banda spoke for his peers in the newly emergent states of Africa when he stated that "So far as I am concerned, there is no Yao in this country; no Lomwe; no Sena; no Chewa; no Ngoni; no Nyakyusa; no Tonga; there are only 'Malawians.' That is all," quoted in Leroy Vail & Landeg White, Tribalism in the Political History of Malawi, in THE CREATION OF TRIBALISM IN SOUTHERN AFRICA 151 (Leroy Vail ed., James Currey 1989).
44. See also Dennis Austin, The New Ghana, 59 AFR. AFFAIRS 20, 21 (1960) (quoting Nkrumah as saying,"... In Ghana in the higher reaches of our national life there should be no reference to Fantis, Ashantis, Ewes, Gas, Dagombas, 'strangers' and so forth ... we should call ourselves Ghanaians"). In practice, of course, political mobilization, manipulation, and construction of ethnicity became and remain important components of the modus operandus of Africa's postcolonial leaders.
45. JULIUS NYERERE, UJAMAA - ESSAYS ON SOCIALISM 12 (Oxford Univ. Press 1968) ("We in Africa have no more need of being 'converted' to socialism than we have being 'taught' democracy. Both are rooted in our own past - in the traditional society which produced us").
46. See, e.g., NKRUMAH, supra note 19, at 166 ("[T]he Soviet Union, in a little over thirty years, has built up an industrial machine so strong and advanced as to be able to launch the Sputnik and follow it up by being the first to send a man into space. There must be something to be said for a system of continental organization allied to clearly defined socialized objectives that made this remarkable achievement [possible]...").
47. Quoted in Robert B. Seidman, Constitutions in Independent, Anglophonic, Sub-Saharan Africa: Form and Legtimacy, 1969 WIS. L. REV. 83, 105.
48. The Ghanaian authorities under Nkrumah similarly leaned on Roosevelt's in fact unsuccessful court-packing plan for precedent when they decided in 1964 to push through an amendment to the Ghana constitution to allow the president to remove judges at pleasure: "In the United States of America, the President has power to 'pack' the Federal Supreme Court, that is, to appoint new Judges of his liking. He also has the power to retire Judges before the stipulated retiring age. These were powers which President Franklin Roosevelt Delano Roosevelt used very effectively in the mid-nineteen-thirties when he was fighting for his New Deal Programme. This is what the proposed amendment seeks to do." Quoted in HENRY L. BRETTON, THE RISE AND FALL OF KWAME NKRUMAH: A STUDY IN PERSONAL RULE 91-92 (Praeger 1966).
49. For example, "The Governor had certain 'reserved powers' by which he could invalidate legislation; and he could, in time of extreme emergency, suspend the [colonial] constitution and rule by decree." NKRUMAH, AFRICA MUST UNITE, supra note 19, at 165.
50. PATRICK CHABAL, POWER IN AFRICA: AN ESSAY IN POLITICAL INTERPRETATION 75 (St. Martin's Press 1994).
51. Okoth-Ogendo, supra note 14, at 71.
52. DENNIS AUSTIN, POLITICS IN AFRICA 32 (Univ. Press of New England 1984).
53. See also Abu Mayanja, Letter to the Editor, A Reply to Pincho Ali, 37 TRANSITION 14, 15 (1968) ("[F]ar from wanting to change the out-moded colonial laws, the Government of Uganda seems to be quite happy in retaining them and utilising them, especially those laws designed by the Colonial regime to suppress freedom of association and expression").
54. AUSTIN, supra note 47, at 69 (quoting Nyerere).
55. Seymour Martin Lipset, Some Social Requisites of Democracy: Economic Development and Political Legitimacy, 53 AMER. POL. SCI. REV. 69 (1959).
56. See also SEYMOUR M. LIPSET, POLITICAL MAN: THE SOCIAL BASES OF POLITICS (Doubleday 1960).
57. YOUNG, supra note 33, at 54.
58. See, e.g., SAMUEL HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES (Yale Univ. Press 1968).
59. See, e.g., LEWIS, supra note 38;
60. K. A. BUSIA, supra note 30;
61. PYE, supra note 16.
62. Denis V. Cowen, African Legal Studies - A Survey of the Field and the Role of the United States, 27 LAW & CONTEMP. PROBS. 545, 562 (1962).
63. See, e.g., A.S. Alexander, Jr., The Ivory Coast Constitution: An Accelerator, Not a Brake, 1 J. MOD. AFR. STUDS. 293 (1963).
64. GEOFFREY BING, REAP THE WHIRLWIND: AN ACCOUNT OF KWAME NKRUMAH'S GHANA FROM 1950 TO 1966 222 (MacGibbon & Kee 1968).
65. B.O. NWABUEZE, CONSTITUTIONALISM IN THE EMERGENT STATES 302-303 (Fairleigh Dickinson Univ. Press 1973).
66. The "cult of personality" built around Africa's "founding fathers" runs deep and has often survived their death or loss of power. For example, in 1966, soon after Kwame Nkrumah - "the Black Star of Africa" - was overthrown in Ghana's first coup d'état, African scholar Ali Mazrui drew a storm of protest from certain other African scholars when he published an essay on Nkrumah in which he opined that, while Nkrumah had been a great African, he had fallen short of becoming a great Ghanaian. See Ali A. Mazrui, Nkrumah: The Leninist Czar 26 TRANSITION 8 (1966), reprinted in 75/76 TRANSITION 106 (1997).
67. Mazrui's essay was condemned by his critics as irreverent and an attempt to diminish Nkrumah's place in history. See, e.g., James N. Karioki, African Scholars versus Ali Mazrui, 45 TRANSITION 55 (1974)
68. Ali A. Mazrui, A Reply to Critics, 32 TRANSITION 48 (1966).
69. See, e.g., Thandika Mkandawire, Crisis Management and the Making of "Choiceless Democracies," in STATE, CONFLICT, AND DEMOCRACY IN AFRICA, supra note 13, at 124 ("The quest for legitimacy was an important feature of postindependence politics, and authoritarian rule did not diminish the centrality of this quest, as power was justified on the ability and willingness of political authorities to promote public welfare").
70. See Goran Hyden, The Failure of Africa's First Intellectuals 28 TRANSITION 14, 17 ("Plato's idea of the philosopher-king has hardly anywhere been more deliberately put into practice than in Africa. As the philosopher-kings, the intellectuals in power have often been considered the 'national conscience'").
71. Mazrui, Nkrumah, supra note 56.
72. For example, between 1960 and the end of the 1980s, Nigeria experienced five coups d'état, as did Ghana; Uganda experienced four; Togo three; and Benin six.
73. RICHARD SANDBROOK, THE POLITICS OF AFRICA'S ECONOMIC STAGNATION 2 (Cambridge Univ. Press 1985).
74. Claude Ake, As Africa Democratises, 1 AFR. F. 13 (1991).
75. BASIL DAVIDSON, THE BLACK MAN'S BURDEN: AFRICA AND THE CURSE OF THE NATION-STATE 290 (Random House 1992).
76. THOMSON, supra note 25, at 206.
77. Id. at 183.
78. MICHAEL BRATTON & NICOLAS VAN DE WALLE, DEMOCRATIC EXPERIMENTS IN AFRICA: REGIME TRANSITIONS IN COMPARATIVE PERSPECTIVE 8 (Cambridge Univ. Press 1997).
79. THOMSON, supra note 25, at 233.
80. Adebayo Olukoshi, State, Conflict, and Democracy in Africa: The Complex Process of Renewal, supra note 15, at 457.
81. See generally DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE (Cambridge Univ. Press 1990).
82. See Rod Alence, Political Institutions and Developmental Governance in Sub-Saharan Africa, 42 J. MOD. AFR. STUD. 163 (2004).
83. Under the OAU Charter, member states committed themselves to the "principle of noninterference in the internal affairs of States." OAU Charter of Rules and Procedures, art. 3, para. 2, May 25, 1963.
84. At its summit in Copenhagen in 1993, the EU agreed on a series of criteria that all countries would have to fulfill as a condition of admission to membership: "Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union." Presidency Conclusions, European Council (June 21-22, 1993) at 12.
85. See KANIYE S. A. EBEKU, THE SUCCESSION OF FAURE GNASSINGBE TO THE TOGOLESE PRESIDENCY: AN INTERNATIONAL LAW PERSPECTIVE (Nordic Africa Institute, Current African Issues No. 30, 2006).
86. NWABUEZE, supra note 55, at 302-303.
87. Nicolas van de Walle, Africa's Range of Regimes, 13 J. DEMOCRACY 66, 78 (2002)
88. see also Njunga M. Mulikita, A False Dawn? Africa's Post-1990 Democratization Waves, 12 AFR. SEC. REV. (2003) ("Of the 37 African constitutions that were in force by 1994, all but four contained provisions for term limits"), available at http://www.iss.org.za/pubs/ASR/12No4/Emulikita.html.
89. ROBERT H. JACKSON & CARL G. ROSBERG, PERSONAL RULE IN BLACK AFRICA: PRINCE, AUTOCRAT, PROPHET, TYRANT 71 (Univ. of California Press 1982).
90. Okoth-Ogendo, supra note 14, at 75.
91. Gyimah-Boadi, supra note 10, at 40.
92. Robert B. Seidman, Law and Economic Development in Independent, English-Speaking, Sub-Saharan Africa, 1966 WIS. L. REV. 999, 1022.
93. See, e.g., RESOURCE FLOWS TO AFRICA: AN UPDATE ON STATISTICAL TRENDS, available at http://www.un.org/africa/osaa/reports/ Resource%20fl ows%20to%20Africa%20An%20update%20of%20 Statistical%20trends.xls (remittances from Africans working abroad in the period 2000 - 2003 averaged about $17 billion per annum, overtaking foreign direct investment fl ows which averaged about $15 billion per annum during the same period). For example, Ghanaian government officials estimate from official records that remittances from their nationals abroad in 2005 amounted to $1.5 billion, up from $680 million in 2002. See Papa Owusu-Ankomah, Minister of the Interior, Republic of Ghana, Keynote Address at the 39 th Session of the Commission on Population and Development: Emigration from Ghana: A Motor or Brake for Development (Apr. 4, 2006), available at http://www.un.org/esa/population/cpd/ cpd2006/CPD2006_Owusu_Ankomah_Statement.pdf.
94. See Papa Owusu-Ankomah, Minister of the Interior, Republic of Ghana, Keynote Address at the 39th Session of the Commission on Population and Development: Emigration from Ghana: A Motor or Brake for Development (Apr. 4, 2006), available at http://www.un.org/esa/ population/cpd/cpd2006/CPD2006_Owusu_Ankomah_Statement.pdf.
95. See, e.g., http://www.ghanaweb.com; http://www.ghanacybeHgroup.com: http://www.nigeriaworld.com; http://www.nigeriansinamerica.com; http://www.kenyansabroad.com; and http://www.ethioforum.org.
96. For example, in 2006 a Diaspora Voting Committee formed by Ghanaians abroad and coordinated largely through the Internet successfully campaigned for legislation in Ghana that grants voting rights to overseas Ghanaian nationals in Ghanaian parliamentary and presidential elections.
97. For example, article 162 of the Ghana Constitution contains, among others, the following two provisions: "(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a license as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information"; and "(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications."
98. Eboe Hutchful, Reconstructing Political Space: Militarism and Constitutionalism in Africa, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 218 (Douglas Greenberg et al. eds., Oxford Univ. Press 1993).
99. Robert Mattes & Michael Bratton, Learning about Democracy in Africa: Awareness, Performance, and Experience, AFROBAROMETER, Working Paper No. 31, at http://www.afrobarometer.org/papers/ AfropaperNo31-version 3b.pdf
100. Hutchful, supra note 84, at 218.
101. Press Statement, Kayode Fayemi, Director, Centre for Democracy & Development: Reflections on Ghana's Recent Elections (Dec. 10, 2004), available at http://www.cddwestafrica.org/ index.php?option=com_content&task=view&id=56 (last visited Oct. 20, 2006).
102. See H. Kwasi Prempeh, Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, 80 TULANE L.REV. 1239, 1250-1256 (2006) (discussing judicial behavior in early postcolonial Africa).
103. For an account of the history and evolving jurisprudence of the Benin Constitutional Court, see Anna Rotman, Benin's Constitutional Court: An Institutional Model for Guaranteeing Human Rights, 17 HARV. HUM. RTS. J. 281 (2004).
104. See Bruce A. Magnusson, Testing Democracy in Benin: Experiments in Institutional Reform, in STATE, CONFLICT, AND DEMOCRACY IN AFRICA, supra note 13, at 226-227.
105. State v. President of Malawi (Ex parte Malawi Law Society), [2002] ICHRL 15 (2002) (Malawi), available at http://www.worldlii.org/ cgi-worldlii/disp.pl/int/cases/ICHRL/2002/ 15.html?query=%22malawi+law+society%22.
106. New Patriotic Party v. Attorney-General, [1993-95] S. Ct. G.L.R. 1 (Ghana).
107. See Fomunyoh, supra note 8, at 45.
108. See INTERNATIONAL COMMISSION OF JURISTS, ZAMBIA: ATTACKS ON JUSTICE 407 (2002), available at http://www.icj.org/IMG/pdf/ zambia-2.pdf.
109. See, e.g., Ssemogerere & 5 others v. Attorney General, Const. Pet. No. 5 of 2002 (Const. Ct., Uganda) (unreported) (declared unconstitutional a section ofa new political parties law that would have allowed limited political party organization and activity at the national, but not local, level), discussed in Barya v. Attorney-Gen., Const. Pet. No. 5 of 2002 (Const. Cit., Uganda).
110. See also Alexander Kibandama et al., The Role of the Courts in the Transition Dynamics of Uganda (March 2005), Chr. Michelson Institute, Univ. of Makerere (2006), available at http://www.makerere.ac.ug/socialsciences/Uganda%202006%20elections/ documents/judiciary-march-monthly-update.pdf.
111. [1961] G.L.R. (pt. II) 523 (holding that the Ghana Constitution of 1960 imposed no substantive judicially enforceable restraint on presidential or legislative power; thus upholding as constitutional a "preventive-detention act" that empowered the president to order the detention of persons for up to five years at a time without charge or trial).
112. [1966] E.A.L.R. 514 (validating, on Kelsenite grounds, the extraconstitutional abolition of Uganda's 1962 constitution by then prime minister Milton Obote and his subsequent installation of a new 1966 Constitution).
113. Lord Denning's famous statement in Candler v. Crane, Christmas & Co. [1951] 1 All ER 426, that the progressive development of the common law requires judges to be "bold spirits," not "timorous souls," appears to have influenced immensely the thinking of Africa's common law lawyers (for whom Denning the jurist is a sort of folk hero). especially their views regarding judicial responsibility for the demise of constitutionalism in postcolonial Africa.
114. See, e.g., Chidi Anselm Odinkalu, The Judiciary and the Legal Protection of Human Rights in Common Law: Allocating Responsibility for the Failure of Post-Independence Bills of Rights, 8 AFR. SOC'Y OF INT'L & COME. L. PROC 124, 136-137 (1996) ("[The first generation of the Constitutions and Bills of Rights in Common Law Africa was destroyed not so much by the intolerance of the executive as by the enthusiastic abdication of judicial responsibilities by the persons and institutions mandated under those Constitutions to perform them ...").
115. See also T. PETER OMARI, KWAME NKRUMAH: THE ANATOMY OF AN AFRICAN DICTATORSHIP 13 (Africana 1970) ("Three things must be held responsible for ... the Ghanaian's loss of liberty under [the 1960] Constitution - President Nkrumah, the Justices of the Supreme Court and Parliament. Of these three, the judiciary must take most ofthe blame").
116. See Prempeh, supra note 88, at 1256-1274 (attributing cases such as Akoto and Ex parte Matovu to the absence of legitimacy for constitutionalism and judicial review in the early postcolonial period).
117. AUSTIN, supra note 47, at 51.
118. THOMSON, supra note 25, at 114.
119. Nigerian social scientist Peter Ekeh has described postcolonial African society as consisting of "two publics," with ethical practices and a high sense of moral duty confined to the "traditional" or ethnocommunal realm, while amoralism and self-dealing characterizes the African's dealings with the modern state. See generally Peter Ekeh, Colonialism and the Two Publics in Africa: A Theoretical Statement, 17 COMP. STUD. IN SOC'Y & HIST. 91 (1975).
120. See generally ROBERT H. BATES, MARKETS AND STATES IN TROPICAL AFRICA: THE POLITICAL BASIS OF AGRICULTURAL POLICIES (Univ. of Calif. Press 1981) (showing how public policy in postcolonial Africa caused Africa's agricultural decline by squeezing the productive rural sector to subsidize urban consumption).
121. Ali A. Mazrui, Constitutional Change and Cultural Engineering: Africa's Search for New Directions, in CONSTITUTIONALISM IN AFRICA: CREATING OPPORTUNITIES, FACING CHALLENGES 20, 21 (J. Oloka-Onyango ed., Fountain 2001).
122. Nicolas van de Walle, The Impact of Multi-Party Politics in Sub-Saharan Africa, 1-2001 F. DEV. STUD. 31 (2001).
123. See, e.g., Siri Gloppen, The Accountability Function of the Courts in Tanzania and Zambia, in DEMOCRATIZATION AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF THE COURTS IN NEW DEMOCRACIES 119 (Siri Gloppen, Roberto Gargarella, & Elin Skaar eds., Frank Cass 2004) ("multiparty elections and constitutional changes had failed to diminish the dominance of the executive president").
124. Okoth-Ogendo, supra note 14, at 74.
125. See, e.g., Peter Burnell, Legislative-Executive Relations in Zambia: Parliamentary Reform on the Agenda, 21 J. CONTEMP. AFR. STUD. 47 (2003).
126. Citizenship Act 591 of 2000. See in particular § 16(2)(a) and 16(5).
127. See, e.g., Kim Stanton, The Subsidiary Legislation Process in Ghana: Review and Recommendations for Reform, [2003] CRIT. PERSP. 13-17.
128. See generally ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (Houghton Mifflin 1973).
129. See, e.g., CARNES LORD, THE MODERN PRINCE 96 (Yale Univ. Press 2003) ("the general trend in democracies today seems to be in the direction, if anything, of a further strengthening of the executive element, especially at the expense of legislatures")
130. Gary Rosen, The Time of the Presidents, N.Y. TIMES, July 16, 2006, at 6-21 ("Around the world, the imperial presidency appears to be alive and well").
131. See, e.g., Kwadwo Boateng Mensah, Discretion, Nolle Prosequi and the 1992 Constitution of Ghana, 50 J. AFR. L. 47 (2006) (noting the persistence of the preconstitutional-era problem of "unregulated discretion of public officials").
132. As a descriptive category, democracy is concerned simply with the process and method of selecting governments (and with such safeguards or rights as are deemed necessary to lend electoral legitimacy and credibility to such selection). See, e.g., ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 163-170 (Yale Univ. Press 1989).
133. Constitutionalism addresses a different concern. It is concerned not with deciding who gets to exercise public power, but with the control and regulation of public power. Constitutionalism thus insists on limits and constraints on the exercise of public power, regardless of who holds such power. The most influential recent reminder of the importance of keeping the distinction separate has come in the form of Fareed Zakaria's coinage of the epithet "illiberal democracy" to describe, in essence, a democracy without constitutionalism. Fareed Zakaria, The Rise of Illiberal Democracy, 76 FOREIGN AFF. 22 (1997).
134. See generally JOHN RAWLS, A THEORY OF JUSTICE (Harvard Univ. Press 1971).
135. During the struggle to end colonialism, Ghana's Nkrumah implored his peers and followers to focus their energies on capturing political power above everything else with his famous statement "Seek ye first the political kingdom and all other else shall be added unto you."
136. See generally Ivo D. DUCHACEK, POWER MAPS: COMPARATIVE POLITICS OF CONSTITUTIONS (ABC-Clio Press 1973).
137. I define structural constitutionalism as involving constitutional limitation and restraint of governmental and executive power primarily through vertical and horizontal dispersion of state power.
138. See generally Prempeh, supra note 88.
139. See, e.g., CLAUDE E. WELCH, PROTECTING HUMAN RIGHTS IN AFRICA: STRATEGIES AND ROLES OF NON-GOVERNMENTAL ORGANIZATIONS 306 (Univ. of Pennsylvania Press 1995) ("Lawyers in Africa are few in number, overwhelmingly concentrated in national capitals ... and not affected by extensive pro bono obligations").
140. See Alfred Chanda, Freedom of Expression and the Law in Zambia 30 ZAMB. L.J. 123 (1998).
141. The act provides as follows: "Any person who does any act or utters any words or publishes any writing calculated to or liable to insult, ridicule or to show disrespect to the President, the National Flag, the Armorial Ensigns, the Public Seal, or any protected emblem or protected likeness, shall be liable to a fine of 1,000 pounds and to imprisonment for two years." See RUTH WALDEN, INSULT LAWS: AN INSULT TO PRESS FREEDOM (World Press Freedom Committee 2000).
142. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 29 (2ded., Yale Univ. Press 1986) (1962).
143. Id.
144. See generally H. Kwasi Prempeh, A New Jurisprudence for Africa, in THE GLOBAL DIVERGENCE OF DEMOCRACIES 260 (Larry Diamond & Marc F. Plattner eds., Johns Hopkins Univ. Press 2001).
145. Id. at 139-143 (describing characteristics of a jurisprudence of executive supremacy, and drawing contrasts with a jurisprudence of constitutionalism).
146. Id. See also Gloppen, supra note 106, at 118 ("Despite notable recent developments, the overall assessment must be that the Tanzanian courts have not been able to significantly limit executive dominance or the 'hyper-presidential' nature of Tanzanian politics").
147. Okoth-Ogendo, supra note 14, at 80.
148. See Richard Joseph, Africa: States in Crisis, 14 J. DEMOCRACY 159, 163 (2003) ("Whatever the rhetoric, the reality is that those who win governmental office concentrate on serving themselves and their narrow circles of supporters").
149. Id. at 165 ("In Nigeria, the roster of presidential candidates in the April 2003 elections included many who have held executive, parliamentary, and other political positions over the decades of predatory military and civilian governments").
150. Gyimah-Boadi, supra note 10, at 46.
151. FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (Free Press 1992).
152. Gyimah-Boadi, supra note 10, at 43 (paraphrasing Larry Diamond).