The excessive concentration of powers and the abuses that go with it have been one of the greatest impediments to Africa’s development and its attempts, especially in the last two decades, to establish polities which promote constitutionalism, good governance, democracy, and the rule of law. The stakes are very high and have global dimensions. On UN projections, four billion people will be added to the world’s population between now and the year 2100. Three-quarters of them will be born in Africa. The kind of states in which these people will grow up is one of the key issues of the next century. It will, as ever, matter a great deal to the individuals themselves, but the decisions these states will make about how to govern their people, their resources, and their relations with the rest of the world will affect everyone.

It is for this reason that the first volume of this series of books on African constitutionalism starts with the old and very well-known issue of separation of powers and its contemporary characteristics on the continent. How do different systems in Africa understand and make use of the doctrine, and how successful are they in achieving its rationale of constraining the abuse of power? These questions are venerable for the good reason that they represent great and enduring problems for states to solve. Africa has long been troubled by excessive centralized power, and the separation of that power is a time-honoured response; as the continent turns increasingly to the task of building better states, the finer details of such responses take centre stage. The chapters in this volume consider how Africa’s executives, legislatures, and judiciaries relate to one another; three also speak to the growing cast of other institutions that are joining the traditional tripartite picture in Africa, as elsewhere.

The state of the continent’s inherited legal traditions represent one important variable in this picture, and today a lawyer’s glance across Africa reveals important signs of progress. As Charles Fombad notes in the first chapter of this volume, African states wrote many constitutions in the years immediately after obtaining independence, but those efforts met with little success. In many states, an honest study of constitutionalism was often a matter of documenting its breach and its absence. It is only in the most recent generation that the continent has seen a trend towards constitutionalism that is often worth taking seriously. No longer is Africa a collection of states gone variously awry plus a Botswana exception: there are now many systems that merit sustained legal attention.

Given its far-reaching effects, there is some irony but no surprise in the fact that colonialism, a central cause of Africa’s problems of authoritarianism and lack of stable structures of accountability, also sets many of the basic terms of the legal response to this situation today. As Fombad writes in Chapter 1, ‘the most significant, if not (p. 2) dominant influence’ in African systems in this regard ‘is the legal system within which they were adopted and operate’. Other big-picture themes also matter, as he goes on to discuss. The post-colonial pattern of concentration of power lives on in the high proportion of dominant party systems on the continent. This political structure draws strength from the one-party traditions of socialist revolution and the variants of African-style socialism, and will continue to be a crucial subject of discussion. Indigenous or customary law remains a matter of some uncertainty, with a complex relationship to the past and a contested relevance for the future. International human rights law has had an important impact in Africa (one that will be explored in more detail in contributions to the second volume of this series), and so has the chief regional instrument, the African Charter on Human and Peoples’ Rights. Although it is not a focus of this volume, Islamic law is a pillar of many North and West African systems; indeed, increasingly so.

Given its legal focus, however, the starting point of the contributions to this volume is most often with membership of different legal families, and what this membership entails for the separation of powers and reformist efforts to promote it. As we will see, distinctions between civil and common law inheritors, between Anglophone and Francophone, Lusophone and Hispanophone states, matter a great deal, particularly when it comes to institutional structures, procedures, and the professional self-understandings and expectations of legal personnel. In Chapter 2, Fombad offers an overview of this issue to prepare the ground for the more specific enquiries to come. He considers what each tradition implies for understandings of the separation of powers and for the testing of its boundaries: how readily do different systems accept members of one branch performing tasks usually or conceptually associated with another, for example. The distance various African states have travelled from their colonial legal inheritance also varies, as he goes on to discuss. Anglophone states, in line with global trends, have broken with the unwritten constitutional traditions of their former colonial power. The constitution of the United States has been an important source for many systems, although the range of influences is naturally broader today as models of written constitutionalism have multiplied. Anglophone states, however, usually retain parliamentary systems; two (historically shifting) exceptions, Kenya and Nigeria, are discussed in later chapters. Francophone systems, meanwhile, generally take as their starting point the model of the executive-driven French Fifth Republic. They have therefore also run into its problems, including its apparently unrealistic assumption that the party of the separately elected president will also control the legislature. Some African states (like the French themselves) have made important reforms, including the area of judicial review; this is true of Benin, Francophone Africa’s most obvious legal success story. Others still resemble something close to the traditional Gaullist model, with the executive generally allowed to prevail when he decides this is necessary and the other branches assigned, at best, the status of second among equals.

After this introductory Part, the three chapters of Part II address the relationship between the legislative and executive branches in Anglophone Africa. Francois Venter’s examination of this relationship in four Anglophone systems, including a survey of relevant textual details, reflects both the tensions between the inherited Westminster model and the borrowed US one, on the one hand, and the differences between the (p. 3) British and US systems and African ones, on the other. Since African systems had no national monarchies, the separate British powers of head of state and head of government have been concentrated in strong presidencies. Since no African constitution (and its associated founding myth) has yet attained the status of the American one, appeals to the ‘will of the people’ are more likely to be harnessed in the name of executive rather than constitutional power. The result, argues Venter, is a hybrid arrangement in need of its own theoretical conceptualization. Westminster parliamentary supremacy has been displaced by constitutional supremacy, to the extent that appeals to popular sovereignty are not used to support strong executives and dominant parties. However, those constitutions usually continue to understand parliaments in the Westminster tradition as the central institutional check on the executive, a role that appears to be attracting increased textual support, albeit with patchy realization in practice. The switch to constitutional supremacy might now be a foregone conclusion as a technical matter, and this Venter sees as ‘significant progress’, but the tangle of institutional inheritances reflects what remains to be worked out.

Conrad Bosire devotes Chapter 4 to an examination of the striking case of the 2010 Kenyan constitution, which reflects the mix of US and Westminster elements. He sets out its drafting history, recording how a late political settlement led to the decision to establish a presidential system instead of the parliamentary system that previous drafts and public discussions had contemplated. That said, the original motive of limiting executive power has had several important impacts on the details of the presidential system that ultimately emerged. Presidential powers have been reduced: as Bosire concludes, ‘Parliament now controls its own agenda and calendar without any direct controls by the national executive as was the case in the past’. Power has also been delegated downwards to forty-seven county governments, and a unicameral legislature has been replaced by a bicameral system with a Senate representing federal interests. In addition, while the shift to a presidential system may have been produced by a political settlement, it comes with its own motivations for reducing executive power. As in its US home, presidentialism at least aims to reduce executive powers by a stricter separation of powers; in Kenya, with its history of executive control of the legislature, there is a reason to keep the president separate from parliament. Although Bosire notes the differences between the US Senate and its new Kenyan counterpart, two chambers make it harder for the president to control the legislature, and he notes perverse confirmation of this in the early moves by the president, with the connivance of his fellow party majority leader in the National Assembly, to side-step the Senate instead. The judiciary has, however, shown its willingness to resist this and vindicate the Senate’s status, while the National Assembly, which recently rejected a presidential nominee, has signalled its own independent status as well.

Sylvester Shikyll concludes the Part with an examination of another presidentialist Anglophone case, Nigeria. In line with Venter’s argument, Shikyll notes that the 1999 constitution places a high premium on the representative legislature in light of the idea that power in the state is derived from the people, but that in practice the legislature has not been very effective as a check on the executive. He describes the strength of the Nigerian executive and identifies causes both in the colonial and post-colonial history of the country, including the institutionally erosive influence of the military on (p. 4) government, and the presidential nature of its system: Nigeria is another instance where US presidentialism has not travelled well. Surveying various aspects of the relationship between the executive and legislature in Nigerian constitutional arrangements, Shikyll emphasizes that to work at its best, presidentialism requires some cooperation between the separated powers of the two branches, and that to the country’s great cost this has often been absent. This experience stands as an important datum for the younger presidentialist system in Kenya.

Part III examines relationships between the political branches and the judiciary. It begins with Fernando Loureiro Bastos’ overview of judicial–executive relationships in Africa’s Lusophone systems, Angola, Mozambique, Guinea-Bissau, and the island nations of Cape Verde and São Tomé and Príncipe, which are often neglected in the English-language literature. As a result not only of their colonial background but also an ongoing process in which Portuguese sources are widely used and judicial officers and academics often receive training in Portugal, these systems continue to follow the Portuguese system closely even today. The result, Loureiro Bastos argues, is the persistence of a view of the separation of powers in which the judiciary is subordinate to the legislature and the executive, and to the law that those branches alone create, and in which its role is understood chiefly as a resolver of disputes between private parties. A further constraint on judicial operations is practical: staffing and other problems, especially at the lowest levels, cause delays both directly and by increasing the workload of the judges and magistrates who are in place. Finally, while the constitutions of these states offer textual protection for the judiciary’s independence, only Cape Verde has made important strides to realizing this in practice. Executive influence over the judiciary is strong, including in the crucial matter of appointments: the Angolan Constitutional Court has upheld this view of judicial appointments on the basis of the judiciary’s limited democratic legitimacy, in keeping with a system that, as Loureiro Bastos notes, has a strong understanding of the executive even by the standards of Portugal’s semi-presidential system.

André Thomashausen picks up this thread in his discussion of Angola in Chapter 7, another rare English-language analysis focused on Lusophone Africa. After recounting the history of constitutional developments in Angola leading up to the 2010 constitution, he discusses the relationship between the Constitutional Court, created by statute in 2008, and the powerful ‘hyper-presidentialist’ executive. The executive merits the epithet because it combines indirect election with very strong presidentialist powers. The first name on the party list in parliamentary elections is deemed elected as the president—functionally the same as in parliamentary systems where one party commands a clear majority—but the president may only be removed by impeachment and has considerable powers, including, following an older Portuguese tradition, the ability to legislate by decree in some areas. In a recent decision, which Thomashausen quotes and analyses in detail, the Court substantially supported this hyper-presidentialist model. It held that the 2010 constitution had reduced the powers of parliament as compared to the previous text and that parliament now lacked the power to put questions to the executive or to summon ministers to hearings before it. Since these are presidential powers, the Court held, parliament may not appropriate them, though it may request the president to supply information or order his ministers to appear (p. 5) before it. While criticizing the interpretative techniques behind the decision and noting the politically suspect events surrounding it, Thomashausen offers several defences of it. In context, strong presidentialism is seen by some Angolans as preferable to granting too much power to a sharply fractured party system. More pragmatically, some may prefer to leave intact President Dos Santos’ 34-year rule rather than risk instability or a return to civil war. They may look to the instability in some other African systems as a reason to prefer incremental, cautious reforms. Thomashausen goes as far as to suggest that in such conditions the Chinese system may offer an important model of governance for African states like Angola; he also notes, however, that the Court’s decision, despite the criticisms, has the merit of confirming the supremacy of the constitutional text.

In Chapter 8, James Fowkes identifies a particular tendency in African scholarship to see the executive as, at best, a potential threat, and the judiciary as the body that should serve as guardian against it. This therefore prompts calls for more constitutional protections, greater insulation of judges from politics, and bolder judicial activity. Given the often sad history of the rule of law in Africa and the general dominance of executive power on the continent, this focus is both understandable and far from misplaced. But the chapter argues that it should not blind us to other configurations the separation of powers can assume. Comparative experience suggests that judicial power can escalate rapidly, a possibility that deserves the attention in the African context it already commands elsewhere, especially lest reform efforts aiming to strengthen the courts lose sight of the possibility that the judiciary, too, may need to be checked in time. Executives may also pursue more admirable constitutional goals, and in that case a relationship of substantial cooperation, rather than conflict, will be possible without sacrificing judicial independence or other constitutional goals. Case studies, including of Africa’s most successful constitutional states, suggest that this situation may be important to that success, and if so a reflex position of distrust will not always be appropriate or prudent. A distorting focus on executive dominance to the exclusion of these other dynamics is therefore likely to mislead, and separation of powers thinking should be adjusted accordingly.

In Chapter 9, Kofi Quashigah offers a succinct overview of the post-independence constitutional history of the important case of Ghana. In his account, the story begins in 1960 with the subordination of the judiciary by the executive, a relationship effectively conceded by the judges of the time. Judges were therefore complicit in the descent of the Nkrumah government into dictatorship, but began to assert more power under the 1969 constitution, which expressly entrenched the power of judicial review for the first time. This continued under the subsequent military regimes, against which the judiciary offered some protection. With the return to civilian rule, the new 1992 constitution goes so far as to provide that the failure of the president or vice-president to respect a Supreme Court order constitutes high treason. In the years since, the judiciary has made bold orders against the government and these have generally been upheld. Quashigah concludes by observing the extent to which meaningful judicial power is possible given the confluence of adequate textual protection of the judiciary’s authority, a conducive political environment, and a commitment on the part of the judges themselves to uphold the rule of law impartially.

(p. 6) Complementing Shikyll’s earlier discussion of legislative–executive relations in Nigeria is Ameze Guobadia’s Chapter 10, focusing on judicial relationships. She sketches the history of assertions of judicial power by Nigerian courts, including the bold, though promptly reversed, 1966 action by the Supreme Court to assert the continued validity of the 1963 constitution in the face of a military coup. Central to her analysis are questions of the role of the National Judicial Council in appointing and disciplining judges, an important contemporary issue in many systems. She recounts the saga surrounding a president of the Court of Appeal, Justice Salami, which raises the troubling prospect of the Chief Justice ‘packing’ the Council and possibly colluding with the executive to pursue political goals, and discusses the issue of Council disputes with state governors over the appointment of state chief justices, who are appointed by governors on the Council’s recommendation. She also offers the Nigerian perspective on control over judicial budgets and administration, another issue of wider importance, noting that current arrangements are rather better at safeguarding judicial independence in relation to the latter than the former. The chapter concludes with a review of some significant cases, revealing a mixed pattern: assertions of judicial power and some erosion of the political question doctrine, coupled with examples of open non-compliance by the executive and some signs that the judiciary may practise self-imposed restraint in some sensitive cases.

In Chapter 11, Assefa Fiseha introduces the position of the judiciary in Ethiopia. The country adopted a parliamentary system of government, but by contemporary standards, it has some unusual features. Its governments have historically blended judicial and executive functions, and today final authority in constitutional matters lies not with the courts but the House of Federation, the second legislative chamber whose members are in practice indirectly elected by the states. This leaves the position and role of the judiciary somewhat unclear, and the Supreme Court has not tended to assert its power: as Fiseha argues, ‘the highest court has taken the position that whatever the legislature takes away remains valid and courts are mandated to interpret whatever is left’. Although independent and fiscally accountable only to parliament on the face of the text, the judiciary in fact submits budgets to the executive, which also has substantial control over appointments. There are signs of the use of legislative overrides to reverse individual decisions, and of ouster clauses to transfer jurisdiction on various issues from the courts to administrative tribunals within the executive. Although lower courts have attempted to review decisions of these tribunals, the Supreme Court has overruled them on the basis that they lack jurisdiction. The highest ranks of the judiciary therefore seem to be accepting of a vision of the separation of powers in which other branches define the judicial role.

Walter Khobe Ochieng discusses the Kenyan executive–judicial relationship in Chapter 12. As he explains, Kenya has long seen a deferent, politically controlled judiciary. The 2010 constitution, however, takes a number of steps to safeguard judicial independence, in line with the general concern to limit executive power that was also a theme of Conrad Bosire’s chapter on executive–legislative relationships in the new system. The 2010 reforms include the creation of a Judicial Services Commission that aims to end the previous presidential control of appointments and the insulation of judicial funding from executive control. Several aspects of the new appointment (p. 7) procedures have already been defended in decisions of the High Court. Ochieng concludes his discussion by examining a number of important recent cases which demonstrate, as he says, how ‘the Courts have reformed to the extent of boldly questioning executive decisions’. His cases also show executive compliance, although as he notes the executive has sometimes been slow to comply with decisions that go against it, and several prominent political leaders, including the president, have criticized the courts for ‘activism’. The work of establishing and enforcing the 2010 constitution is only just beginning, but the chapter reflects that important early steps have been taken.

Nico Horn concludes Part III with a discussion of judicial power in Namibia. He begins with the assertiveness of the judicial bench during the 1980s, when Namibia was still controlled by the South African apartheid government. Namibian judges relied on the rights contained in a quasi-constitutional transitional instrument (of lesser legal status) and on the common law to invalidate several abuses of power, though the South African Appellate Division, deferent to the apartheid regime here as in many other contexts, generally reversed these decisions. As Namibia moved towards transition, this record bolstered the judiciary, but it did not escape the politics surrounding a largely white judiciary inherited by the new black government, nor did these tensions disappear as more black judges were appointed to the bench. Horn’s conclusion, however, is that while non-trivial, these tensions have not reached the point of representing a genuine threat to judicial independence. His examples include decisions on the important structural issues of the constitutional status of prosecutorial decisions (a topic of Part IV of this volume) and protections for the independence of magistrates. He also discusses the influence that public homophobic statements by senior officials had on the Supreme Court’s failure to protect Lesbian, Gay, Bisexual, Transgender/Transsexual and Intersexed (LGBTI) rights. The Court here acted apparently as willing partner, taking the statements as evidence of the values of the Namibian people.

Part IV concerns issues lying at the borders of the traditional doctrine of the separation of powers, or entirely outside it. Charles Fombad opens this Part with a discussion of hybrid institutions: bodies like auditors general and election commissions. As he notes, such bodies have long existed around the world, but they have traditionally been created by legislation. A number of recent African constitutions have begun to extend them formal constitutional status; he pays particular attention to the important South African case, which has influenced several other more recent African constitutions in this regard. Fombad welcomes this trend as a timely re-imagining of the traditional separation of powers, but emphasizes the need to ensure the budgetary and political independence of such bodies, and also warns against the temptation of creating a plethora of expensive new hybrid bodies as a reflex paper solution to stubborn problems.

In Chapter 15, Jeffrey Jowell addresses the important question of the precise constitutional status and role of the public prosecutor. As he notes, this has not only been an area of recent controversy in several jurisdictions but ‘bristles with problems about divisions of functions that are necessary in a constitutional democracy’. On the one hand, public prosecutors are legal officials supposed to be independent and impartial; on the other hand, their decisions may legitimately take account of public policy and (p. 8) therefore may in principle be legitimately influenced by elected officials and the stance of the government of the day. Jowell links debates on these issues in Anglophone Africa to those in other Commonwealth jurisdictions and to the growing body of soft law on the point in international and European instruments. He argues that public prosecutors should be permitted to take public policy into account and should therefore be permitted to consult elected officials, but should not consider themselves bound by the advice received. He notes the concerns about undue political influence, as well as the difficulties that arise when courts are called upon to review decisions that implicate this prosecutorial discretion. Such exercises in review, like other efforts to ensure transparency and accountability here, may be facilitated by the giving of reasons for specific decisions not to prosecute (or at least the presence of public general guidelines), and by the possibility for input from victims and their families. Jowell’s chapter shows that both these areas, like the broader problem itself, merit more attention.

Charles Fombad and Horace Adjolohoun ask the corresponding question about public prosecutors in Francophone Africa in Chapter 16, in a discussion that also has relevance to countries that inherited other continental European legal systems. They note that the French themselves have implemented significant reforms in this area in response to rulings of the European Court of Human Rights (ECHR), but that Francophone African countries have only followed suit to a limited extent and still largely follow the old French system. (As they note, African regional bodies have done much less to date in this area than the ECHR, so a corresponding regional influence has not yet materialized.) What reforms have occurred give judges a greater role in some prosecutorial decisions, but the independence of prosecutors remains an area of significant concern. Their appointment is generally subject to substantial political control, and although they receive identical training to judges and are similarly judicial officers, they enjoy fewer institutional protections, for example against transfers by the executive. Their decisions are also ultimately subject to the Minister of Justice, and given both continental traditions of bureaucratic obedience and African ones of submission to a powerful executive, this can be a powerful constraint on independent prosecutorial activity. Fombad and Adjolohoun offer a number of case studies of the concerns and abuses that have arisen in practice. They conclude that the issue of the tangled roles of the Francophone prosecutor, who must represent multiple interests before and during trials and who institutionally serves multiple masters, merit the same concern and reform in Africa that it has been receiving in the European systems from which these arrangements originated.

Michaela Hailbronner rounds off the volume by interrogating the emphasis on the separation of powers as a device for curbing power, especially executive power, and reflecting on the persistent theme of legitimacy, especially judicial legitimacy. She notes that while some African systems can be plausibly understood as exercises in revolutionary constitutionalism, as in the United States, most probably cannot. Their constitutions today often reflect important reforms, but commonly feature similar groups and people in power after the constitution as before it. Revolutionary legitimacy may not be available for courts to draw upon, but they may still rely on the reformist imperative to avoid past mistakes as a source of legitimate authority—something several African courts in this volume may be observed doing. She also notes that the (p. 9) separation of powers is a device intended to underpin an efficient allocation of tasks to the branches that can best perform them. This aspect is neglected by arguments focusing on limiting executive power, but it should be important in African systems. It may provide a more appropriate paradigm for parts of the new texts, such as socio-economic rights, since the strong developmental states African constitutions aspire to be are imperfect fits for traditional negative understandings of constitutions and courts as restraints on power. Following through on this line of reasoning, she argues that African systems may plausibly place an emphasis on judges as checks on executive abuses but would also do well to develop doctrines of legitimate judicial deference on the basis that another branch is better suited to perform a particular task. Models from similarly situated countries in the Global South, or from modern constitutional exemplars such as Germany, may be better guides here than the United States and the former colonial powers which are the traditional focus.

These seventeen chapters offer a wealth of local detail on the current state of power relations in African constitutional systems, and taken together offer a valuable perspective on the current state of the state in Africa. The view is certainly a mixed one, as we should expect: as some systems succeed, and different systems succeed in different areas, generalizations, including the generalization that is Afro-pessimism, will become less and less useful. Such a result, however, is itself far more useful than its indeterminacy can make it appear. It is when the picture is mixed that comparison becomes most feasible and instructive, and opportunities for mutual learning by those inside and outside Africa most plentiful, and thus when the value of inclusive scholarly conversations promises to be greatest.(p. 10)