Part II The Relationship Between the Legislature and the Executive, 3 Parliamentary Sovereignty or Presidential Imperialism?: The Difficulties in Identifying the Source of Constitutional Power from the Interaction Between Legislatures and Executives in Anglophone Africa
Francois Venter
From: Separation of Powers in African Constitutionalism
Edited By: Charles M. Fombad
(p. 95) 3 Parliamentary Sovereignty or Presidential Imperialism?
The Difficulties in Identifying the Source of Constitutional Power from the Interaction Between Legislatures and Executives in Anglophone Africa
1. Introduction
In the process of colonial emancipation of Anglophone Africa, the constitutional institutions that were established were mostly fashioned in the image of the metropolitan example: Westminster. This example seldom migrated well: parliamentary sovereignty could easily be made into executive authoritarianism;1 in the absence of a symbolic and unifying monarchy, the separation of head of state and head of government could only confuse;2 and the notion of a professional bureaucracy, unmoved by political change, was made very difficult, especially given the outgoing example of colonial administrators that could be bound only by colonial political interests.3
This chapter deals with examples of the constitutional relationships between the executive and the legislature in Anglophone Africa. The approach is comparative, but not encyclopaedic. The constitutional analysis is concentrated on four countries jointly having a population of at least 110 million people, viz Ghana, Kenya, Namibia, and South Africa. The choice of these examples is motivated by the consideration that the chosen constitutions may be said to represent recent autochthonous African intentions to incorporate and sustain the precepts of constitutionalism, qualified by often traumatic local history and circumstances.
Following a brief discussion of the reception of constitutionalist ideas in Anglophone Africa from sources on both sides of the North Atlantic, the constitutional arrangements in the four chosen constitutional orders regarding the presidents, the executives, parliaments, and the discernible patterns of interaction between executives and legislatures are set out sequentially. Based on this exposition some conclusions are drawn. It (p. 96) is not possible to draw conclusions from this comparative overview of a widely shared view on the nature of the relationship between executives and legislatures in Anglophone Africa that will allow for the identification of a settled continental pattern. It is however possible to identify certain encouraging trends and common challenges that need to be overcome if the roots of lasting constitutionalism is to be established on African soil.
2. The Reception of Constitutionalist Thinking in Anglophone Africa
Some fifteen years ago Jonathan Hyslop wrote that contemporary African democratization had to be located in the realm of international and increasingly transnational politics:4
By the time of the collapse of the East European and Soviet states in 1989–1991, there was … a striking delegitimisation of ideologies of benevolent authoritarianism throughout Africa. It was simply no longer plausible to claim that military or single-party regimes would bring great benefits. They had been tried and had failed. There was an ideological exhaustion … Thus, the turn to liberal democratic forms was in part a result of the discrediting of most of the available options. Multi-party democracy was the only ideological option that was not obviously in serious trouble.
Anglophone African constitutionalism had to be planted and germinated in colonial soil. Colonial conceptions of governance and legislation were however not particularly conducive to the establishment of notions associated with twenty-first-century constitutionalism. In fact, colonial possession implied the undemocratic imposition of (foreign) demands; selective allocation, if at all, of power or influence to indigenous entities; and imposition of constitutional structures and ideas conceived abroad, and allowing indigenous institutions to function only insofar as they were useful for control and administration of the population.
Post-colonial African constitutionalism also had to be imported, notably not by force, but under the unrelenting pressures of globalization. This brought about its own challenges, not unique to Africa, as can be clearly seen in regions such as Eastern Europe, China, and the Arab world. The power of the notion of constitutionalism, developed over centuries in ‘the West’, is nevertheless simply irresistibly attractive—even to those that do not believe in it but nevertheless succumb to its constitutional aesthetics. Where it did not originate (as in Africa), it needs to be nurtured anew, and more often than not under conditions much different from the original seedbeds of constitutionalism.5
(p. 97) In significant ways, some of the current constitutions6 contain indications that constitutionalism is taking root in Anglophone Africa. This is evidenced by various recently adopted and well written, democratically legitimized constitutions. Like most contemporary constitutions, these documents contain a number of notions associated with constitutionalism, including popular sovereignty, the rule of law, democracy, and justiciable rights. Nevertheless, as is true of every constitutional order, the question remains whether the notions of constitutionalism embraced in a constitutional text are hollow clichés, cornerstones on which constitutionalism is being built, or true reflections of political and institutional reality. Thus, one must ask whether, in a particular constitution ‘we the people’ means democratic popular sovereignty: are the elected bodies and persons representing their electorates or merely exercising power drawn from ‘the people’? Closely related to this question, is the fate and role of parliamentary opposition in legislative and overview processes. Not all of these aspects can be dealt with in detail here, but a consideration of the constitutional arrangements regarding executives and legislatures does reveal much relevant information on the issues.
A further consideration is the potential uncertainty about the nature of constitutionalism. This question too, is not one that is relevant only in the African context, since clarity on the matter is difficult enough to find in the constitutional orders that inspired or influenced current constitutionalist African orders. Regarding Anglophone Africa the lack of clarity on constitutionalism can be traced to, inter alia, disparate influences from different sides of the Anglophone North Atlantic.
A cornerstone of text-based constitutionalism is the assumption that a supreme constitution represents the binding ethos of a state to which a democratic majority and all the organs of state and the population are subject until it is amended in accordance with the provisions of the constitution. The effects of this assumption are however seen differently in the United States and in Britain. Since both models have been influential in the process of African constitutionalization, the differences between them may be significant for the understanding of current responses in African countries to the demands of received constitutional notions.
In this connection, Bruce Ackerman distinguished between a monistic and a dualistic approach.7 Dualism assumes that the supreme constitution is the supreme expression of ‘the will of the people’, which is to be distinguished from the will of the incumbent government. If an organ of state should therefore, regardless of its status as being legitimized by the latest election, act in contravention of the constitution, it acts against the popular will, except if ‘the people’ can be persuaded at the juncture of what Ackerman has termed ‘a constitutional moment’, to adapt their will in terms of a constitutional amendment or by adopting a new constitution.
In the English system, for obvious historical reasons the constitutional paragon of Anglophone colonial Africa, parliamentary practice traditionally did not raise constitutional concerns about government conduct, with the House of Commons routinely (p. 98) giving its majority support to government proposals. The underlying assumption is that, if the will of the popular electorate is not complied with, there will be a change of government after the next general election; until such time neither the judiciary, nor the House of Lords nor the Crown will interfere. This approach might be labelled ‘monistic’.8
Commentators with a monistic perspective would tend to see the outcome of a democratic election to be paramount, even if the actions of the majority government challenge the constitution. This goes some way to explaining arguments around the ‘counter-majoritarian difficulty’: if the majority makes the laws and the policies, how dare an unelected bench of a few judges declare such conduct unconstitutional, presumably against the wishes of the current majority of ‘the people’? The dualist explanation would simply be that the court is entrusted with the guardianship over the will of the people as it is enshrined in the ‘higher law’, the supreme constitution. Changing the expression of this will require an onerous and inclusive process. Until that happens, the judiciary is charged with the responsibility to preserve ‘the will of the people’ by judging in accordance with the constitution and not necessarily in accordance with the wishes of the current political majority.
For present purposes the relevance of the distinction between a monistic and a dualistic approach lies in the question what the thinking behind a particular African constitution might be. Due to their colonial past, most Anglophone African states inevitably built their constitutions on a British colonial foundation. Many leading African constitutional lawyers and political leaders have however been influenced by American thinking. As has been pointed out earlier, there may be profound differences between Anglophone notions of democracy drawn from the opposite sides of the North Atlantic. Undoubtedly the American example did influence African constitution-making despite its eighteenth-century thinking having become slightly quaint, while the example of Westminster is one lacking a written constitution, dependent on an understanding of numerous conventions.
Against this background, it is quite likely that a monistic confusion between the political preferences of the incumbent government and the imperatives of the constitution may occur. Such confusion can only be addressed by obtaining clarity on the foundations of the authority of the constitution.
Justification of the supremacy of the constitution may realistically be founded upon an historic sense of the inevitability of a negotiated compromise, such as in the case of South Africa. The primary authority of the constitution may alternatively be based on an understanding that its content and tenor are prerequisites for universal recognition—the background to the writing of the Namibian constitution might be considered to be a case in point. Another justification can be that the international community had been directly involved in the process of constitution-making. The role (p. 99) of international law in constitution-making processes which are undertaken under international supervision and stricture can indeed be significant.9 Whatever the source of the justification might be, the result of constitutions providing pre-eminent norms binding upon all authority-bearing organs—executive, legislative, and judicial—represents significant progress towards the establishment of constitutionalism in Africa.
Justifications of this nature for the superior authority of a constitutional text all relate to the founding history of the constitution concerned. This applies particularly to the American experience. Significantly, in the American constitutional psyche, the groundbreaking work of the ‘founding fathers’ achieved an elevated, quasi-religious status. Davis poignantly described this attitude in the following terms:10
The Pledge of Allegiance is our creed, the Constitution is our scripture, and our founding fathers are our patriarchs. We are devoted to democracy, we pray for our progress, and we are committed capitalists. Our prisons are our civil religion's purgatory, where we hope the criminal perpetrators prove penitent. We celebrate our saintly soldiers on Memorial Day, and we praise our political prophets such as Martin Luther King, Jr.
This national American attitude lies at the root of the dualism between the sanctity of the founding document and the capricious outcome of politicized elections resulting in relatively frequent policy changes.
It is to be doubted that the founding history of any African constitution has achieved, or will ever achieve, a status in African thinking even approaching the hallowed eminence that the US constitution gathered in the minds of Americans over more than two centuries. It is in fact possible, if not probable, that the powers that be in any particular case, may consider the history of constitution-making to be flawed exactly because of, for example, the external pressures or the internal need for compromise under which the texts were adopted.
Therefore, should presidential imperialism prove to continue to be a prominent characteristic of twenty-first-century African constitutionalism, being defended on the basis of the British notion of monism as a reflection of the ‘supreme will of the people’ for the time being, constitutionalism itself may become the victim. The dichotomy of a presidency fashioned on the dualistic American model, managed in terms of monistic constitutional conceptions derived from Westminster, has the potential of creating a warped form of constitutionalism in Africa. The danger is that African constitutionalism may descend into perpetual concentration of power in an individual or party/movement/organization capable of manipulating the institutions provided for by the ‘supreme’ constitution, thereby diluting or even destroying their ability to defend the precepts of constitution as such.
(p. 100) Another conceptual difficulty, which an analysis of African constitutionalism needs to take account of, is the increasing lack of realism of our constitutional terminology. Thus, for example, due mostly to the historical vagaries of the drawing of boundaries during the period of colonialism, African states, as others around the world, cannot realistically be said to be ‘nation-states’.11 Nevertheless, the vocabulary of nineteenth-century liberal democracy is still very strongly in evidence in current constitutions. Constitutional law and also international law still operate on the assumption that a state exists for the benefit and protection of its ‘nation’: thus the famous opening words of the US constitution of 1789 ‘We the People’ and the French constitutional principle of ‘government of the people, by the people, for the people’,12 are strongly in evidence in constitutions, even some of the most recent ones in Anglophone Africa.13 It should therefore be kept in mind that notions such as ‘nation-building’, ‘national interest’, and ‘nationality’ have in the twenty-first century lost much of their meaning beyond political rhetoric.
3. Presidents
Presidentialism is ubiquitous in Africa—but, one may ask, on what foundations do Anglophone African constitutions base their presidencies? Should we think in terms of a unique African form of presidentialism, or are we dealing with a conceptual confusion of the role of the head of state and the head of government, alien to the example of Westminster but also not founded in the eighteenth-century dualist thinking in which the American constitution is rooted? This may even affect one’s thinking regarding constitutional differences between directly elected presidents and those elected by their parliament.
3.1 Powerful presidencies
A survey of the four chosen examples makes it clear that Anglophone African constitutionalism is built around powerful presidencies.
The president of Ghana is head of state, head of government, and Commander-in-Chief of the armed forces.14 Article 57(2) of the constitution of Ghana provides:
The President shall take precedence over all other persons in Ghana; and in descending order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take precedence over all other persons in Ghana.
References(p. 101) Article 57(4)‒(6) then goes on to privilege the president while in office and for three years after leaving office not to be liable to proceedings in any court for the performance of his functions, nor to be personally liable to any civil or criminal proceedings.
In Ghana the president is entrusted with the executive authority, which extends to the ‘execution and maintenance’ of the constitution and all laws. Although the president may exercise the executive power through ‘officers subordinate to him’, ‘all executive acts of Government shall be expressed to be taken in the name of the President’.15
The president of Kenya is head of state and head of government, the Commander-in-Chief of the Kenya defence forces, chairperson of the National Security Council, and ‘symbol of national unity’.16 As such, the president is required to respect, uphold, and safeguard the constitution, safeguard the sovereignty of Kenya, promote national unity, and ensure the protection of human rights and the rule of law.17
During the term of office of a president, no criminal or civil proceedings may be instituted against the incumbent, but the immunity does not extend ‘to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity’.18 The effect of this provision was demonstrated by the summonsing of President Uhuru Kenyatta before the International Criminal Court in terms of the Rome Statute.19
The president of Namibia is the head of state, the head of government, and the Commander-in-Chief of the defence force.20 A core responsibility of the president is set out in article 32(1) of the constitution:
As the Head of State, the President shall uphold, protect and defend the Constitution as the Supreme Law, and shall perform with dignity and leadership all acts necessary, expedient, reasonable and incidental to the discharge of the executive functions of the Government, subject to the overriding terms of this Constitution and the laws of Namibia, which he or she is constitutionally obliged to protect, to administer and to execute.
In terms of article 31 of the constitution, the Namibian president enjoys immunity from civil proceedings during and after his term of office for acts done in his official capacity. Regarding immunity from criminal prosecution, article 31(2) provides:
No person holding the office of President shall be charged with any criminal offence or be amenable to the criminal jurisdiction of any Court in respect of any act allegedly performed, or any omission to perform any act, during his or her tenure of office as President.
Long before the adoption of the current constitution, in post-colonial South Africa the British colonial governmental model of a prime minister in the image of Westminster References(p. 102) being head of government, symbolically subordinate to the monarchical head of state, prevailed. When this model was revised in 1983,21 the functions of the symbolic head of state were merged with those of the prime minister, thus creating a state presidency at the pinnacle of both the executive and legislative branches. The state president’s position of power was thereby rendered constitutionally unassailable, except from within, that is, through internal party political processes. After the relatively brief existence of the Government of National Unity provided for in 1993, the 1996 constitution re-established this arrangement. Currently the South African president is both head of state and head of the national executive.22 There is however no constitutional provision that grants the incumbent president with immunity from prosecution or civil action.
3.2 Democratic legitimation of presidential power
For the election of the president of Ghana, an absolute majority (more than 50 per cent of the number of valid votes cast in the election) is required in a direct popular presidential election.23 The term of office is four years and the office may not be held by the same person for more than two terms.24
The election of the president of Kenya occurs on the same day as the general election of the members of parliament.25 All registered voters may vote in the presidential election. To be elected a candidate requires more than half of all the votes cast in the election, as well as ‘at least twenty-five per cent of the votes cast in each of more than half of the counties’,26 a ‘county’ being one of forty-seven regions of Kenya.27 The term of office is the same as that of parliament and a person may not hold office as president for more than two terms.28
The president of Namibia is elected by absolute majority vote by ‘direct, universal and equal suffrage’ for a term of five years and may serve not more than two terms.29
The South African president is not elected popularly, but indirectly at the first sitting of the National Assembly after a general election.30 The legitimacy of this election is however founded upon the assumption that the person whose name appears first on the list of candidates of the political party that obtains the majority of the seats in the proportional election of members of the National Assembly, will be elected president.
3.3 Presidents as supreme executives
Although Anglophone African constitutions do not explicitly entrust arbitrary powers to their presidents, the British example of dividing head of state and head of government responsibilities between different functionaries, has disappeared. Generally, References(p. 103) presidents lead the executive, but retain head of state functions to be exercised with a greater degree of independence. Their powers of appointment are extensive.
Certain key appointments are made at the discretion of the president of Ghana, including the Commissioner for Human Rights and Administrative Justice, the Auditor-General, the members of the Public Service Commission, the Lands Commission, and the Electoral Commission.31 For these appointments the president must consult the Council of State, but does not seem to be bound by its advice.32 The Council of State is composed of a former Chief Justice, a former Chief of the Defence Staff, a former Inspector-General of Police, the President of the National House of Chiefs, elected representatives of each of the regions, and eleven members appointed by the president.33 The president also determines the emoluments payable to the Speaker and members of parliament, the judges, the Auditor-General, and the holders of similar positions.34
Key appointments made by the president of Kenya include the Attorney-General,35 the ‘principal secretaries’ (that is, the administrative heads of state departments) with the approval of the National Assembly,36 and diplomats. The presidential authority to appoint includes the authority to dismiss.37
The Namibian president has the power to appoint at his discretion diplomats, the prime minister, ministers and deputy-ministers, the Attorney-General, the Director-General of Planning,38 on the recommendation of the Judicial Service Commission the Chief Justice and other judges, the Ombudsman and Prosecutor-General, on the recommendation of the Public Service Commission the Auditor-General and the Governor of the Central Bank, and on the recommendation of the Security Commission the Chief of the defence force, the Inspector-General of Police and the Commissioner of Prisons.39 The president is in the position to determine the majority membership of the recommending commissions.40
As head of government, the South African president not only appoints the deputy president and the cabinet ministers, but may also dismiss any of them at any time.41 This places the leader of the political party that obtains the majority vote in a general election in a position where every member of the executive is completely dependent for his or her political, executive, administrative, and legislative activities on the goodwill and approval of the president. An inordinate amount of power of patronage is thus concentrated on the incumbent of the presidential office.
As head of the executive the president of South Africa also appoints the commander of the defence force, the national commissioner of police, and the heads of the intelligence services.42 The president has a decisive role in senior judicial References(p. 104) appointments,43 and appoints the National Director of Public Prosecutions44 and diplomatic representatives.45
The power of an elected head of state and head of government to make political appointments goes organically with such an office. Appointing powers regarding functionaries and institutions that are intended to serve as guardians over political conduct, such as the Commissioner for Human Rights and Administrative Justice in Ghana, the Attorney-General in Kenya, the Ombudsman in Namibia and the National Director of Public Prosecutions in South Africa, however do potentially put an inordinate measure of political influence over constitutional checks and balances in presidential hands.
3.4 Is African presidentialism unique?
Presidentialism is without doubt the prime characteristic of African constitutionalism. Does that however make it uniquely African? One might argue that most of the extensive powers in the hands of the presidents of Anglophone Africa are also found in the hands of heads of state and heads of government in the rest of the English-speaking world. Peter Leyland for instance writes:46
Enormous power is focused on the office of Prime Minister. The most important political decisions are generally taken not by the full Cabinet, but through Cabinet committees, many of which are chaired by the Prime Minister … Indeed, ‘elective dictatorship’ is useful shorthand for the executive dominance which is a central characteristic of the UK constitution. It refers to the ease with which the government is able to secure a majority in Parliament for nearly all legislative proposals.
With reference to Article II of the US constitution, Barron and Dienes wrote:47
The need for prompt, informed and effective action in domestic and foreign affairs has meant that power has tended to flow to the Executive. While many of the vague, open-ended executive powers provided in the Constitution are shared with Congress, presidential initiatives have generally produced only congressional acquiescence and the courts have tended to avoid judicial review of executive actions, especially in the area of foreign affairs and national security. Indeed, it has been suggested that separation of powers questions involving the allocation of powers between Congress and the Executive should generally be treated as political questions inappropriate for judicial resolution.
A curious remnant of the historical transition from monarchy to democracy in many constitutional orders around the world is the prerogative, a discretionary power originally retained by kings even after their sovereignty migrated to democratic References(p. 105) institutions.48 In some of the African constitutions under discussion, British royal prerogatives, such as the granting of mercy to convicted offenders, were placed in the hands of presidents,49 and in other cases they ceased to be understood as prerogatives, but nevertheless remained in place.50
It seems that the only real difference between Anglophone African presidentialism and that of the Western constitutional paragons may lie in the level of public awareness and preparedness of electorates to react to routine government action, and government sensitivity to public reaction between elections. Due to various factors such as the social penetration of media coverage of public affairs, the level of awareness and engagement of civil society, political culture, levels of education and wealth, etc., scrutiny of government conduct by electorates can be expected to be more effective in older democracies. There are, however, encouraging signs of positive developments in Africa in this regard.51
4. Executives
The executive authority of Anglophone African states is almost exclusively situated in the hands of their presidents, although the other members of the cabinets are entrusted with the execution of most of the routine executive functions.
4.1 Appointment of cabinet members
The vice-president of Ghana is a person designated by the successful presidential candidate before the presidential elections and takes office on the election of the president.52 The ministers of state are appointed by the president in terms of section 78(1) of the constitution ‘with the prior approval of Parliament from among members of Parliament or persons qualified to be elected as members of Parliament, except that the majority of Ministers of State shall be appointed from among members of Parliament’. The Namibian cabinet is composed of the president, the prime minister, ‘and such other Ministers as the President may appoint from the members of the National Assembly … for the purposes of administering and executing the functions of the Government’.53 Similar to Ghana, the deputy president of Kenya is elected with the president, since the successful presidential candidate would have nominated the deputy before the elections as required by article 148 of the constitution. The rest of the cabinet consists of ‘Cabinet Secretaries’ (that is, ministers) nominated and appointed by the president with the approval of the National Assembly. The president assigns the References(p. 106) portfolios and may dismiss cabinet secretaries.54 The executive authority of South Africa is vested in the president55 who is the ‘head of the Cabinet’ which consists of the president, the deputy president and ministers appointed by the president.56 The deputy president assists the president ‘in the execution of the functions of government’.57 True to the model of elected heads of government, the presidents of all four countries are constitutionally empowered to surround themselves with trusted deputies and ministers. The only qualification on this power may be political circumstances where some form of coalition is required (such as in Kenya since 2008), forcing the president to negotiate with coalition partners before making appointments.
4.2 Executive responsibilities
In Ghana the executive authority of the president is not shared by the cabinet, but the cabinet, consisting of the president (who calls all cabinet meetings and presides over them), the vice-president, and between ten and nineteen ministers of state ‘assist the President in the determination of general policy of the Government’.58
In terms of article 130(1) of the Kenyan constitution, ‘the national executive of the Republic comprises the President, the Deputy President and the rest of the Cabinet’. The inclusion of the deputy president and the cabinet seems not to indicate that they are entrusted with independent executive authority, since article 131(1)(b) provides that the president ‘exercises the executive authority … with the assistance of the Deputy President and Cabinet Secretaries’. From this provision it may be deduced that the president’s executive authority is not curbed by an obligation to consult the rest of ‘the national executive’, nor to be bound by its advice. The cabinet secretaries of Kenya are expressly accountable individually and collectively to the president ‘for the exercise of their powers and the performance of their functions’.59
The president of Namibia presides over cabinet meetings.60 Article 27(3) provides:
Except as may be otherwise provided in this Constitution or by law, the President shall in the exercise of his or her functions be obliged to act in consultation with the Cabinet.
According to Mbahuurua the executive power of Namibia vests in both the president and the cabinet and that ‘in consultation with’ requires not only that the president must consult the cabinet, but also that ‘the President together with Cabinet would have to decide as to when, and how the President must exercise his or her powers’.61 This seems to be an unlikely interpretation, given the fact that it should be assumed that the power to appoint ministers includes the power to dismiss them. After all, article 41 of References(p. 107) the constitution renders ministers accountable ‘both to the President and to Parliament’. Parliament may force the dismissal of a minister by adopting a vote of no confidence in the member concerned, but that cannot be the only route available to the president to replace a minister. These considerations justify the conclusion that article 27(3) requires no more of the president than to consult his cabinet, whose advice he may or may not accept, since if he should not agree with the ministers, he can in his discretion replace them with others.
The prime minister of Namibia does not bear the responsibilities of head of government, but is ‘the leader of Government business in Parliament’, coordinates the work of the cabinet and advises and assists the president in the execution of the functions of government.62 In the event of the office of president becoming vacant, the prime minister is first in line to act in the office.63 Given the fact that the Namibian president is not only head of state, but also head of government, the position of the prime minister is quite different from that of the Westminster model: the position might just as well have been named ‘deputy-president’ or something similar.
Section 85(2) of the South African constitution provides:
(2) The President exercises the executive authority, together with the other members of the Cabinet, by—
(a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the Constitution or in national legislation.
There can be no doubt that the presidents of the four states concerned are in full control of the executive power. Despite the nominal responsibility of the executives to their parliaments, the presidential powers of appointment, including dismissal, divert the actual ministerial responsibility in practical terms on their political leaders, the presidents.
4.3 Confirmation of executive action
In terms of article 58(5) of the constitution of Ghana, executive (and other) official actions taken by the president must be authenticated by the signature of a minister. It does not seem likely that this requirement places the ministers in a position to veto presidential acts, since the president may revoke the appointment of a minister at any time.64
Decisions of the president of Kenya must be in writing, bearing the seal and signature of the president,65 but no other signatures, for instance of a cabinet secretary, are required.
References(p. 108) The constitution of Namibia does not require ministerial signatures for the confirmation of executive actions, but article 32(8) requires appointments made and actions taken by the president to be announced by him by proclamation in the Government Gazette.
Section 101(2) of the South African constitution provides that ‘[a] written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member’. The requirement of ministerial counter-signatures does not seem to indicate effective control over presidential discretion.
4.4 Government involvement in and censure by parliament
The president of Ghana is required to report at least once annually to parliament on the steps taken towards the realization of the constitutional policy objectives provided for in Chapter Six of the constitution.66 The parliament of Ghana may consider and pass by a majority of two-thirds, a vote of censure against a minister, in which case the president ‘may, unless the Minister resigns his office, revoke his appointment as a Minister’.67 The president may be removed from office by a two-thirds vote of all the members of parliament.68
Although parliament may cause the dismissal of a Kenyan cabinet secretary in cases of gross misconduct, and cabinet secretaries are obliged to appear before parliamentary committees and answer questions relating to their responsibilities and must provide parliament with regular reports,69 they are not otherwise accountable to parliament. The president can be impeached by a two-thirds majority vote in each of the two Houses of Parliament.70
The prime minister of Namibia leads ‘government business’ in parliament.71 Article 39 of the Namibian constitution obliges the president to terminate the appointment of any member of the cabinet if the National Assembly by a majority of all its members resolves that it has no confidence in that member. The president can be impeached by a two-thirds majority vote in each of the two Houses of Parliament.72
A member of the South African cabinet is appointed by the president to be ‘the leader of government business in the National Assembly’.73 A motion of no confidence may be passed by an ordinary majority of the National Assembly in the cabinet, excluding the president, in which case the president must reconstitute the cabinet. If the motion includes the president, he, and all the ministers and deputy ministers, must resign.74
References(p. 109) 5. Parliaments
The stock liberal–democratic response to the question as to what is the foundation of the claim that the constitution is supreme, is that the constitution is the product of a social contract between ‘the people’, composed of sovereign individuals who have willingly surrendered a measure of their freedom to the state in exchange for the protection of their interests and their inalienable human rights. Thus for instance in Ghana it was stated as an ideal for the development of a new constitution in 1969 that ‘the individuals who form the body politic of Ghana should be elevated above the state’.75 Contemporary Anglophone African constitutional law developed against the background of the British notion of parliamentary sovereignty, which was the result of the drawn out historical competition for supremacy between the Crown and parliament (notionally representative of ‘the people’). A similar contest did not take place in African history before the reception of constitutionalism presented the polities with elected legislatures exercising their legislative competencies in close interaction (as in Westminster) with the executives.
Despite the familiarity and assumed triteness of the constructions of liberal democracy, it is remarkable that they are largely unrealistic, purely theoretical, and in fact wholly romantic. No state in Africa or anywhere else in the world can be said to owe its sovereignty to a popular contract, nor can any government claim that its political actions and goals are altruistically designed and executed purely in the interests of the whole of the citizenry. Nevertheless, African constitutions, like most others around the world, continue, in the absence of more realistic alternatives, to maintain the vocabulary of the fictitious social contract. Popular democracy, regardless of the quality of democratic structures and electoral procedures, but no doubt to be preferred above autocracy and arbitrary dictatorship, unabatedly animates the language of constitutionalism.
The interplay between the elected legislatures and the presidential executives in the countries under discussion reveals the actual, as opposed to the rhetorical, nature of the power relations between them.
5.1 Democratic composition
In terms of article 93(2) of the Ghanaian constitution, the legislative power is vested in parliament, a unicameral body composed of no less than 140 elected members.76 The members of the parliament of Ghana are elected from single-member constituencies demarcated by the Electoral Commission.77 Multi-party democracy is guaranteed by section 55 of the constitution.
Article 94(1) of the constitution of Kenya provides that ‘[t]he legislative authority of the Republic is derived from the people and, at the national level, is vested in and References(p. 110) exercised by Parliament’ and clause 5 guarantees that only parliament can make or authorize the making of law. Parliament is composed of the National Assembly and the Senate.78 The National Assembly is composed of 290 members elected from single-member constituencies, one woman elected by each of the forty-seven counties, twelve members nominated proportionally by the successful political parties, and the Speaker of the National Assembly, who is an ex officio member.79 The Senate has forty-seven elected members each from one of the counties, sixteen women nominated proportionally by the political parties represented in the Senate, one man and one woman representing young people, one man and one woman representing persons with disabilities, and the Speaker of the Senate being an ex officio member.80
In terms of article 44 of the constitution of Namibia, the legislative power is vested in the National Assembly, and article 45 provides:
The members of the National Assembly shall be representative of all the people and shall in the performance of their duties be guided by the objectives of this Constitution, by the public interest and by their conscience.
Seventy-two members of the National Assembly are popularly elected ‘by general, direct and secret ballot’, and at most six members may be appointed by the president ‘by virtue of their special expertise, status, skill or experience’, although such members do not have a vote in the Assembly.81 Chapter 8 of the constitution provides for the establishment of the National Council, which is representative of the regions and is in principle capable of reviewing legislation passed by the National Assembly. Although ‘parliament’ is defined as consisting of both the National Assembly and the National Council,82 the actual constitutional status of the National Council seems to be limited.83
The South African parliament consists of the National Assembly and the National Council of Provinces.84 In terms of section 42(3) of the constitution, the National Assembly:
is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.
The 400-member National Assembly is elected in a simple proportional election based on universal adult franchise.85 The National Council of Provinces is required ‘to ensure that provincial interests are taken into account in the national sphere of government’.86
References(p. 111) 5.2 Speakers
In Ghana, the office of Speaker plays an important role in parliamentary and related matters. In terms of article 95 of the constitution, the Speaker is elected by parliament from amongst its members, or from amongst persons ‘who are qualified to be elected as members of Parliament’. In parliamentary proceedings the Speaker has no vote, neither an original, nor a casting vote.87 In terms of article 112 of the constitution, the Speaker summons parliament, determining the dates of its meetings, but a meeting must be summoned should at least 15 per cent of the members request it.
The Speakers of the Kenyan parliamentary Houses are elected by the House concerned from outside its membership, but Deputy Speakers are elected by each House from amongst its members.88
The Namibian Speaker is elected by the National Assembly from amongst its members89 as are the Speakers of both Houses of Parliament of South Africa.90
5.3 Presidential assent to laws
Presidential assent to bills passed by the parliament is required by all four constitutions under consideration. The presidents may refer bills back to parliament for reconsideration but, in the unlikely event that a parliament should wish to overrule the presidential objections, re-adoption by a two-thirds majority is possible.91
6. Patterns of Executive/Parliamentary Interaction
The general pattern regarding executive involvement in parliamentary proceedings in Anglophone Africa appears to be a combination of the presidential and parliamentary examples: the parliaments generally emulate Westminster, except that the head of government (the president) does not normally take part directly in routine parliamentary proceedings, and has the additional status of head of state.
At the beginning of each session of the parliament of Ghana and before its dissolution, article 67 of the constitution requires the president to deliver ‘a message on the state of the nation’. The appointment by the president of ministers of state, the majority of who must be members of parliament, is subject to the prior approval of parliament.92 should the president resign before the end of the term, it is done in writing, addressed to the Speaker of parliament.93
In Kenya, the pattern leans stronger to the presidential system. The president is required to address the opening of a newly elected parliament and report annually to parliament ‘on all the measures taken and the progress achieved in the realisation of the References(p. 112) national values’.94 Cabinet secretaries (ministers) are not members of parliament,95 nor is the president or the deputy president. The constitution provides for procedures for the removal of the president by majority vote of the National Assembly on the grounds of physical or mental incapacity,96 and for the impeachment of the president by a two-thirds majority vote in both Houses.97 Although the presidential appointment of the principal secretaries requires the approval of the National Assembly, the president may re-assign any of them and if they resign, they do so by giving notice to the president.98
Article 32(2) of the Namibian constitution explicates executive/legislative interaction as follows:
In accordance with the responsibility of the executive branch of Government to the legislative branch, the President and the Cabinet shall each year during the consideration of the official budget attend Parliament. During such session the President shall address Parliament on the state of the nation and on the future policies of the Government, shall report on the policies of the previous year and shall be available to respond to questions.
The cabinet ministers of Namibia are members of the National Assembly, where they are required to initiate bills,99 ‘to formulate, explain and assess for the National Assembly the budget of the State and its economic development plans and to report to the National Assembly thereon’,100 ‘to attend meetings of the National Assembly and to be available for the purposes of any queries and debates pertaining to the legitimacy, wisdom, effectiveness and direction of Government policies’,101 and to perform various other explanatory and guiding functions.102 It is nevertheless within the power of the president to dissolve the National Assembly before the expiry of its term on the advice of the cabinet ‘if the Government is unable to govern effectively’, thereby bringing about a fresh general election within ninety days of the dissolution.103
The South African president is elected by the National Assembly at its first sitting from amongst its members, but vacates his seat on being elected.104 The president is therefore not a member of parliament, but the rest of the cabinet (excepting no more than two ministers) are appointed from amongst the members of the National Assembly,105 where they perform a leading role by introducing bills.106 In terms of section 92(2) of the constitution, ‘[m]embers of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions’. It speaks for itself, however, that the cabinet can command the support of the majority in the National Assembly. Notwithstanding not being a member of parliament, the president may attend and speak in the National Assembly.107 Although References(p. 113) it is not required by the constitution, the president addresses a joint sitting at the annual opening of parliament which is generally deemed to be an important opportunity for the executive to announce its policies and plans. The time of parliamentary sittings is determined by parliament itself,108 but the president may summon parliament ‘to an extraordinary sitting at any time to conduct special business’.109 On a resolution of the National Assembly to that effect (not taken before three years have elapsed since its election), the president dissolves parliament.110
Despite the variation regarding direct and indirect election of the presidents of the four constitutional orders, no apparent indications are evident that the election processes increase or diminish the position of any of the presidents at the pinnacle of governmental power. In all four cases the presidents and their cabinets are nominally responsible to their parliaments, but are fully capable of dominating the legislative process and its outcome. Seen against the background of the conflation of the British (-colonial) and American examples of constitutional design, Anglophone African constitutions appear to sing the words of monism on the melody of dualism.
7. Conclusions
Taking into consideration that the separation of powers is a key element of the notion of constitutionalism and that it is focused on the avoidance of a concentration of power, the consideration of the interaction between Anglophone African parliaments and presidents reveals uncertainties regarding the foundational source and appropriately balanced allocation of constitutional powers. The constitutional configuration of the presidencies project a monistic superiority of executive authority while the parliaments are conceived along dualistic lines reminiscent of parliamentary sovereignty. The difficulty lies therein that both American dualism and British monism presuppose regular shifts in electoral outcomes based on political performance, whereas the African pattern tends towards long-term incumbency of dominant political groupings. This begs the question whether the power in the Anglophone African state originates in ‘the people’, the ‘supreme’ constitution, or in the ability of patriarchal politicians to retain power by means beyond constitutional reach.
The mystical social contract can no longer be considered, if it ever could, to be the foundation of state sovereignty,111 neither in the Western world, and even less so in Africa. Sovereignty is rooted in effective norms contained in constitutional and international law emerging from historical events. The authority of a constitutional state and of its constitution depends on the understanding and acceptance, especially by the organs of the state entrusted with authority, of the precepts of constitutionalism, including an effective separation of powers.
References(p. 114) Anglophone African constitutions of the late twentieth and early twenty-first centuries were written and legitimized with more inclusive popular involvement and comparative finesse than those produced in the foregoing colonial and post-colonial phases. Nevertheless, none of them can be said to have the same iconical status as the original ground-breaking founding actions of the American constitution builders of the late eighteenth century, making it unlikely that Founding as an interpretative and authenticating notion will shoot deep roots into African constitutional soil. A fictional reconstruction of the supposed hallowed intentions of ‘founding fathers’ and mothers, as in monist American views, is therefore not an option in Africa. Nor can constitutional dualism in the Westminster mould explain Anglophone African understanding of the source of constitutional power, given the evident differences existing between African and British electoral cultures and the constitutional construction of the relationships between presidents and parliaments.
The upshot is that, in the constitutional orders discussed here, neither the prime example of the presidential system of the United States, nor the parliamentary system characteristic of colonial Britain112 can be said to prevail. The merging of head of state and head of government functions in African presidencies, combined with the phenomenon that executives usually control the legislative processes and majority policy opinions in the parliaments, appear to have the effect of promoting presidential imperialism despite constitutionalist rhetoric to the contrary. The general pattern in Anglophone Africa is that the legislative checks on the executive are nominal or symbolic, the balance of power being in the hands of the executives under the predominating leadership of the presidents. Constitutional variation of this pattern between the states discussed appears to be mostly cosmetic and dependent on political reality: loss by a president of personal political clout would conceivably be a more effective check on his powers than parliamentary censure of his conduct during his term of office.
Nevertheless, emerging from colonialism, authoritarian arbitrariness, and popular suffering under political extremism, Anglophone Africa shows encouraging signs of sprouting constitutionalism in the form of constitutional balances between popularly elected legislatures tasked with executive overview and governments led by presidents who are at least notionally responsible to their parliaments. Westminster parliamentary sovereignty, from the outset a non-starter beyond the shadows of Westminster, has been replaced by superior constitutions. Presidentialism is constitutionally curbed by executive responsibility to elected parliaments, at the very least in form, if not consistently in substance.
The line between an effective separation of powers and the concentration of effective power in an individual head of state is thin. Constitutional guarantees against abuse of power and the manipulation of resources can easily become empty rhetoric in the hands of cynical and opportunistic politicians able to mobilize electoral majorities through patriarchy. This is true for any constitutional order, but especially in situations (p. 115) such as in contemporary Anglophone Africa where the operation of constitutionalist precepts has but a short history of governmental accord and a long history of popular subjection to concentrated power.
Formal constitutional foundations for the growth of constitutionalism in Anglophone Africa have been laid in some of the leading states on the continent, albeit on incongruous foundations derived from both sides of the Atlantic. Although monistic separation of powers between the executive and legislative branches is not a cornerstone of the constitutional structures built upon those foundations, such a separation has been proven in monistic British constitutionalism not to be a sine qua non for constitutional merit. The prospects for future constitutional stability logically depend on developmental and economic progress, but it is highly desirable that sound and apposite theoretical justifications for the constitutional award of state authority be developed in the African context. The competing notions of constitutionalism that migrated from different contexts and were incongruously written into fine constitutions do not hold sufficient promise for the emergence of a sound construction of African constitutionalism.
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Footnotes:
2 Such was the case prior to the adoption of the current Kenyan 2010 constitution when a prime minister (Odinga) vied for power with the president (Kibaki).
3 John Hatchard, Muna Ndulo, and Peter Slinn, Comparative Constitutionalism and Good Governance in the Commonwealth—An Eastern and Southern African Perspective (Cambridge University Press 2004) 14, for example, states: ‘Colonial rule was philosophically and organisationally elitist, centralist, and absolute and left no room for either constitutions or representative institutions. The colonial administration not only implemented policy, it made it as well.’
4 Jonathan Hyslop, African Democracy in the Era of Globalisation (Witwatersrand University Press 1999) 1‒2.
5 For more details on the reception of Western constitutionalism, see Chs 2 and 3; Hatchard, Ndulo, and Slinn (n 3) 12‒27; Kofi Quashigah, ‘Constitutionalism and Constitutional Reforms in Ghana’ in Morris Kiwinda Mbondenyi and Tom Ojienda (eds), Constitutionalism and Democratic Governance in Africa: Contemporary Perspectives from Sub-Saharan Africa (Pretoria University Law Press 2013) ch 5.
6 It would not serve much of a purpose to include constitutional rogue states such as Swaziland and Zimbabwe in a comparison of this nature for the obvious reason that they represent retrogressive constitutionalism.
8 Whether Ackerman’s description of British democracy in the 1990s is still accurate without qualification more than two decades later, can be doubted in view of the current human rights regime in the UK as a member of the EU and reforms relating to the ‘watchdog’ function of parliament (see, for example, Peter Leyland, The Constitution of the United Kingdom—A Contextual Analysis (Hart Publishing 2012) 141 et seq, but this does not detract from its explanatory value for present purposes).
9 An historical example would be Germany, and more recent instances seem to increase in number: see, for example, Philipp Dann and Zaid Al-Ali, ‘The Internationalized Pouvoir Constituant—Constitution-Making under External Influence in Iraq, Sudan and East Timor’ (2006) 10 Max Planck Yearbook of United Nations Law 424‒63.
10 AP Davis, ‘International Civil Religion: Respecting Religious Diversity While Promoting International Cooperation’ (2011) 34 Hastings International and Comparative Law Review 87, 97.
11 African constitutions routinely contain provisions concerning the recognition of traditional institutions, linguistic and cultural pluralism, and regional or tribal interests, all obviously indicative of social diversity rather than nationhood.
13 Amongst others, the preamble of the Namibian constitution employs the phrase twice, the preambles of the South African and Kenyan constitutions open with it, as does the Zambian first draft constitution of 2012.
14 Art 57(1) of the constitution of the Republic of Ghana of 1992 (hereafter constitution of Ghana).
19 See, for example, ICC-01/09-02/11 The Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/icc01090211/court%20records/chambers/pretrial%20chamber%20ii/Pages/382.aspx> accessed 31 March 2015.
32 Art 70(1) provides that the president acts ‘in consultation with the Council of State’, which is to be distinguished from acting on the (binding) advice of a body.
46 Leyland (n 8) 188.
47 Jerome A Barron and C Thomas Dienes, Constitutional Law in a Nutshell (5th edn, Thomson West 2003) 137.
48 See Francois Venter, ‘Confusing Grace With Amnesia: Reviewing Acts of the Head of State’ (2012) 4 Constitutional Court Review (Pretoria University Law Press 2012) 167‒88.
50 Section 84(2)(j) of the constitution of the Republic of South Africa, 1996 and art 133 of the constitution of Kenya 2010.
51 See, for example, Charles Fombad and Nathaniel A Inegbedion, ‘Presidential Term Limits and Their Impact on Constitutionalism in Africa’ in Charles Fombad and Christina Murray (eds), Fostering Constitutionalism in Africa (Pretoria University Law Press 2010) 22‒3.
61 VH Mbahuurua, ‘The Executive Power in the Namibian Constitution: Precept and Practice’ in Manfred O Hinz, Sam K Amoo, and Dawid Van Wyk (eds), The Constitution at Work—10 Years of Namibian Nationhood (University of South Africa 2002) 49.
75 Quashigah (n 5) 122.
76 Art 93(1) of the constitution of Ghana. Currently there are 230 seats in parliament: cf. <http://www.parliament.gh/content/376/45> accessed 7 July 2014.
83 Cf. Mbahuurua (n 61) 54.
91 Art 90 of the constitution of Ghana; arts 109(1), 115, and 166(1) and (2) of the constitution of Kenya; arts 56 and 64 of the constitution of Namibia; ss 79 and 81 of the constitution of the Republic of South Africa, 1996.
