AFRICA: CONSTITUTION-BUILDING VS. COUP-MAKING

COMMENTARY ARCHIVES, 29 Apr 2009

Winluck Wahiu and Paulos Tesfagiorgis

The coup d’état was a common device of regime-change in post-independence Africa. The failures of governance of post-independence states even led some observers to see the coup as in some circumstances a necessary evil – when it removed a predatory and autocratic regime, and could be regarded as facilitating a transition to democracy. There are two problems with this argument.

The first (one of principle) is that – whatever the motives of a coup – the extra-constitutional transfer of and claim to power is inherently corrupting of governance and inconsistent with constitutional rule. The second (one of practice) is that those who assumed power through coups have amply demonstrated their incompetence, by mismanaging the economies of their countries and destroying the social fabric of African peoples.

These flaws notwithstanding, the coup has not disappeared from Africa’s political landscape. The most recent successful coups d’état in Mauritania (August 2005) and Madagascar (March 2009) have resulted in regimes that are struggling to govern amidst uncertainty, insecurity and isolation. There have been further attempts in recent years to seize power through force or other unconstitutional means in the Central African Republic (CAR), Guinea-Bissau, Cote d’Ivoire, and Sao Tome & Principe.

Yet if these events might suggest that Africa is witnessing a resurgence of coups, another trend is equally visible: regional and continental efforts in the wake of such actions to find effective solutions via mediation. This reaction was apparent in the aftermath of the CAR, Guinea-Bissau, Cote d’Ivoire cases, and in Sao Tome & Principe (in the last, the military renegades who seized power in July 2003 quickly restored it to the elected regime following mediation).

All coups or attempted coups are a cause for concern. But it is notable that the African Union (AU) swiftly condemned the coups in Mauritania, Madagascar and Guinea-Bissau; demanded the immediate "restoration of the legitimate, constitutional and democratic institutions" of the three countries; and suspended their membership of the AU. All this demonstrates that Africa is no longer tolerant of such unconstitutional assumptions of power. The African people have clearly spoken, through their continental body, that they have no desire for and cannot any longer tolerate unconstitutional changes of government.  

This contribution to the International IDEA/openDemocracy debate on democracy-support article places this important development in the context of the challenges and achievements of the process of constitutional-building in contemporary Africa.  In doing so it poses three questions:

▪ how will Africans get to the point when they can speak of Madagascar as Africa’s "last" coup?

▪ in the meantime, what role can constitutions play in protecting African states from regime-change through coup-making?  

▪ if Africa is consistently to deny unconstitutional transfers of power the chance to succeed, what new governance norms will emerge around the constitution-building process?   

The new constitutions

The answers to these questions can in part be sought in what might be called the "mediated normalisation" of political regime-change (that is, the transfer of power between regimes). At the heart of this process is an energetic attempt to bolster a country’s constitution and its practical legitimacy.

African regime-change since the imperatives of cold-war polarisation lost their agency has (with very few exceptions) been conducted through constitutional means. The constitution has become the roadmap to power, and has displaced the coup or revolution as the basis for reform. South Africa’s constitutional pact, which in ending race-based minority rule can be seen as Africa’s last great act of liberation, is the classical example on the continent. In some other cases (such as Kenya) regime change without constitutional change has remained incomplete and volatile. The example of Zimbabwe makes clear that regime change will have a much better chance of being peacefully implemented and taking root if it were done on the basis of a substantive new constitutional pact.   

Hence, the hypothesis of successful and peaceful regime change by constitutional means is being largely vindicated. This is less because it is wholly crisis-proof than because it has performed better at managing crises (both South Africa and Kenya are positive examples).   

The real African choice for regime change is via the constitution. It is not that constitutions by themselves cause successful and peaceful regime-change, but rather that by their nature they contribute to making it a real possibility and then a probable reality. In this sense, constitutions are integral to the answer to the question about when the "last coup" in Africa will occur.

Most contemporary African constitutions provide the citizen with the power to choose his or her leaders in free and fair elections through the entrenchment of a bill of rights. Most also put the military )and the security forces generally) under the control of civilian authorities, with a responsibility loyally to obey political decisions and uphold the constitution.   

The results of such constitution-making in Africa have included the spread of greater public awareness: of the nature of constitutional principles; of the sense of social ownership of a process that has fostered a plurality of political voices, actors and forces; and of the need to avoid the danger of democratically and constitutionally elected executives seeking to manipulate constitutions by (for example) overstaying or extending term-limits.  

Constitution-building is about the systemic strengthening of constitution-based institutions and processes. But the people of a country that seeks to build a new constitution after repeated experience of violent regime-overthrow already have grounds for scepticism. An echo of the pro-coup argument cited above may even be heard: that in light of the lived experience of serious conflict and/or the failed ideals of earlier constitutions, the idea of building a constitution sounds irrelevant or abstract.   

Yet these very same experiences largely shape the motivation for constitutional reforms. In this respect, the quality of a constitution and its practical legitimacy for all actors is vital to its endurance and ability to withstand threats. In francophone Africa, five of the nine countries that since 1988 have held national conferences to agree constitutional changes subsequently experienced successful regime-change; in anglophone Africa, almost all national dialogues succeeded in securing constitutional term-limits for the elected executive.

A constitution cannot be expected to act as a panacea for all political problems. Many constitutions were negotiated by parties locked in a sort of entrenched political stalemate, where despite their unequal power neither could hope to exert long-term domination over the other. These constitutions were primarily designed to protect and then reinforce democratic change, by allow those who already held power without democratic legitimacy to risk ceding it.  Yet they were also written in a way that could clearly envisage a wider transformation of the state based on accommodating competing interests in shared visions of reality.

Today, more substantive options for constitution-builders in Africa are available than was the case at the time of independence or during the left-right polarisation of the cold-war era. These options are propelling a new constitutionalism that is concerned with classic themes (governance, rule of law, human rights and stability) but as much with other issues that have more recently emerged onto the agenda (political inclusion, diversity, cultural safety, eradicating corruption, environmental regeneration, justice, livelihood, HIV/Aids and food security).    

This highlights the point that the process and outcome of constitution-building are not matters of form alone, but extend to the nature of the constitution in the eyes of its national ownership.   

A charter for progress

A potent contemporary aspect of the successful constitutional democracy now being consolidated in countries such as Ghana, Mauritius and South Africa is the desire for a measure of constitutionalism that will also re-energise society. Indeed, many citizens view their new constitution as a possible instrument in the improvement of economic livelihoods. Constitutions have addressed this aspiration in several ways: by recognising economic and social rights, by designing new institutions to enforce such rights, and by enabling powers of initiative at a local level under some form of democratic framework such as an elected chief or local government. The link between culture and economics is important; cultural organisation at a local level, for example, can also determine political behaviour and economic pursuits.   

Constitution-building has also been a process of identity-development, for example among citizens and members of particular associational groups moving from contest against to (ultimately) negotiation with the central authority. The way that often marginalised people living in (say) a Bedouin village or a San (Kalahari) settlement participate in constitution-building can be described as a sort of localisation of political energies in order to strengthen the inclusiveness and thus the stability of national politics.   

The new constitutions have tried to multiply the spaces for politics and allow for more actors as a means of making political pluralism work – and politics less dangerous. The success here lies in establishing the constitution as the only accepted roadmap to power. The promise is that regimes that come to power constitutionally will enjoy legitimacy, security and even regional support to drive their agenda. In this respect Madagascar’s current crisis is in vivid contrast to its relatively peaceful regime-change effected through elections in 2001 and a court decision in 2002: a precedent that needs to be recalled.   

Constitution-building has also aimed at transforming the state, to make its different components more active and thus able to deal with modern social, economic and cultural problems. This makes the demands placed on the new constitutions – in addition to the requirements of democratic transition – even heavier and more numerous. The biggest tests are still to come; and the experience of seeing how the constitutions cope will teach further lessons about what kind of constitutions are needed in Africa.   

The consensual nature of the new African constitutions lowers the underlying risks of coups in the emerging political environment. Africa needs more constitution-builders and greater constitutional knowledge in order to realise the promise of its new instruments.   

An encouraging measure is the adoption in 2007 by the African Union (AU) of the Charter on Democracy, Elections and Governance. The charter, which tightens the African Union’s own social contract on governance norms, has a significant punch. In the event that a government’s opponents overthrow a regime and then acquire and hold power by unconstitutional means, the charter requires the body to suspend the relevant member-state (which, incidentally, cannot unilaterally withdraw). The charter is based on one of the fundamental principles of the Constitutive Act of the African Union (adopted in July 2000, and the basis for the formation of the present-day African Union): that is, the condemnation and rejection of "unconstitutional changes of government".   

The strictures of the Charter on Democracy, Elections and Governance also relate to "any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections"; and to "any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government".  

In the recent history of African Union intervention, constitutional has become associated in the political mind with electoral legitimacy – hence the strong and explicit emphasis on democratic elections in the charter. The supporters of the charter are emboldened that when coups happen the AU has rejected an attitude of non-interfering indifference. The body, for example, quickly moved to prevent Mauritanian coup-makers becoming comfortable with their actions; the same is true in Madagascar.    

Africa’s constitutional future

What then is needed to make 2009 the year of the "last" successful coup in Africa? It is worth noting that the AU charter has arrived at a moment when new and ongoing processes of constitution-building are establishing goals and values that clearly define the danger posed by coups to proper governance norms. To emphasise the point, these are constitutions negotiated between competing groups in contexts of transition and with efforts at sustained national ownership and public support. They are transitional charters that aiming to protect the democratic transition and signpost the transformation of the state in a broader context. They are constitutions whose raison d’être is to lower the risks of politics while creating background conditions for safely assuming, holding and leaving power.   

By addressing constitutions and the practice that they foster in power-transfer, the AU has recognised that the soundness of constitutions is rooted in their ability to shape power-dynamics, the form of the state, and the quality of democracy. When power is allowed arbitrarily to determine what the constitution is, this soundness is lost.   

The move from sovereignty as an alibi for inaction to constitutional legitimacy as a basis for action is a watershed. But it is one that will fully materialise only when African Union member-states themselves respect their own constitutions – including over the transfer and holding of power. The political admirers of those who were in the past successful revolutionaries and who still cling to power must also hear this message.  

The problems with coup-making, referred to in the first paragraph above, are clear: violation of legitimacy, destruction of society, increased corruption, exposure of civilians to horrible suffering. Even non-violent coups invariably spur political instability and can (as in Thailand after its 2006 coup) lead to greater polarisation and violence. The assets of constitution-making are equally evident: the chance of sustainable and inclusive governance based on shared values, including mechanisms for peaceful and smooth transitions of power. The rewards of a constitution with practical legitimacy include a built-in deterrent to coup-making.

The success of the work of strengthening constitutional institutions and processes can be assured only by committed constitution-builders backed by the active support of the people. This is an area where international attention, provided it does not aim to override national ownership of the constitution process, could be really useful.   

______________________________

– Winluck Wahiu is a constitutional lawyer and project manager of the constitution-building programme at International IDEA.
– Paulos Tesfagiorgis is senior advisor on democracy and constitution-making based at International IDEA’s regional office in Pretoria.

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