Constitutions are not written in a vacuum nor do they fall from the sky. They are often prepared in a particular political context and with particular social aims. In the late 1950s and early 1960s it was almost taken as axiomatic by African states clamouring for independence that a constitution was a condition or a concomitant of independence. In the absence of a dominant model constitution which could act as guide, it was understandable that the emerging independent states simply accepted and adapted the models prepared by the colonial powers based on their own legal systems. Therefore, (p. 23) the first main and perhaps dominant influence on African constitutions was the colonial legal system within which these constitutions were crafted. In framing these constitutions, the colonialists did not completely ignore the African social, legal, and political cultures that were in place. Several aspects of the indigenous political systems as well as religious beliefs, such as Islam, were incorporated in diverse ways in these constitutions. Since these constitutions were adopted, like all modern constitutions, their development has been influenced by the borrowing of ideas, concepts, principles, and institutions from other jurisdictions, especially the states with which they share a common legal heritage.³⁸ At some stage, many African constitutions were influenced by socialist ideology. However, in the last two decades, regional and international influences have played a very significant role in the considerable strides that have been made to entrench constitutionalism in Africa. It is now necessary to see to what extent each of these diverse influences has shaped the form and structure of these constitutions over the last five decades.

3.1  The colonial influence

The colonial powers, in order to exercise effective control as well as maintain the law and order necessary to facilitate maximum exploitation of their colonial territories, imposed their legal systems on the colonies. Even those countries managed under the League of Nations Mandates and subsequently the UN trusteeship agreements were authorized to apply their laws to these territories.³⁹ It was during this period that the English common law was exported to Anglophone Africa, French civil law to Francophone Africa, and Portuguese and Spanish civil law to Lusophone and Hispanophone Africa respectively.

The diverse efforts over the years to group jurisdictions around the world into a handful of legal families, systems, or traditions have become a hotly contested issue amongst comparatists in recent years.⁴⁰ In spite of the criticisms levelled against the different taxonomies it is argued that it would be a mistake to ignore the legal tradition in which a country’s constitution was crafted and within which it actually operates. (p. 24) Although some writers argue otherwise,⁴¹ a critical look at African constitutions will show that there is a strong correlation between the constitutional ‘system’ and the legal system from which it has emerged. This reality has not been diminished by the dramatic constitutional changes taking place, not only in Africa but globally, which show that there are many signs of convergence of national constitutional systems.⁴² There remain however many differences, sometimes quite significant, which can be explained only by the legal tradition from which the constitution was crafted and has evolved. In this respect, it is to be noted that two main legal traditions have taken hold on the continent, the common law tradition in Anglophone Africa and the civil law tradition in Francophone, Lusophone, and Hispanophone Africa. But as we shall see later, it is not merely these two legal traditions but also others which have influenced the evolution of African constitutions.

All Anglophone African countries inherited Westminster-type constitutions which were mainly drafted at Whitehall. By contrast, the French simply transplanted the Fifth Republic Constitution of 1958 to all its colonies, with the exception of Guinea, which at independence had opted out of any association with France. In present day DR Congo, their constitution, in the form of the Loi Fondamentale of 1960 was strongly influenced by the Belgian constitution.⁴³ So too was the autochthonous constitution of Burundi. In spite of the tremendous developments that have taken place since these constitutions were adopted at independence, the present generation of African constitutions, still bears clear and distinctive features of the legal tradition from which it emerged. A number of examples which will illustrate both the continuous influence of the colonial legal heritage and the distinctive features of each of the systems will be discussed in some depth. From this discussion, it will be seen that the colonial influences on the different African constitutions have not necessarily been exactly the same.

In spite of the post-1990 reforms being very closely linked to the inherited colonial patterns, there are some indications that these colonial influences may be reduced with time especially if, as we will see later, the African Union (AU) plays a more proactive role in promoting the adoption of common constitutional standards. This is however just one of the several other important influences on modern African constitutions which cuts across the Francophone, Anglophone, Lusophone, Hispanophone, and Arabophone divides which we shall now proceed to consider, starting with ideological influences.

3.2  Ideological influences

By the time African countries were being granted independence in the early 1960s, in many cases after armed struggle against the colonial powers, the former Soviet Union (p. 25) as a superpower and socialism as an alternative ideology were at the height of their appeal to Third World countries. In fact, by the end of the Second World War, China and the Soviet Union as the main promoters of the Marxist–Leninist ideologies, had thrown their weight behind all the different independence movements across Africa and became identified with anti-colonial ideologies, especially in the Portuguese colonial territories.⁴⁴ As a result of this, at the time of independence or at some later stage, many African countries adopted constitutions that were influenced by socialist ideology, or what are sometimes referred to as ideological constitutions.⁴⁵

Ideological constitutions were influenced by the socialist constitutional models then in vogue in both China and the former Soviet Union. The socialist constitutional models were instruments that were supposed to be designed for social transformation and incorporated ideological goals intended to map the historical progress of society, charting its movement toward the final state of communism.⁴⁶ It is however necessary to distinguish the ‘socialism’ espoused by some of these constitutions from the ‘African socialism’ that was promoted by some African leaders like Julius Nyerere and Leopold Sedar Senghor.⁴⁷ Although the term is borrowed from Marxist–Leninist thinking, many forms of this so-called African socialism had more to do with populism and African communitarian traditions than socialism in its strict sense.⁴⁸ In fact, attempts were made by the proponents of African socialism to distinguish it from non-African socialism. One of its most eminent promoters, Senghor, boasted thus: ‘We have rejected prefabricated models. We have not let ourselves be seduced by Russian, Chinese, or Scandinavian models.’ He then went further to describe the communist blueprint as a ‘soul-less monster’ whose ‘purely materialistic and deterministic postulates’ ill accords with the African environment and argued that the communist thesis of the class struggle would tend to produce and accentuate social divisions at a time when national unity was the key to national construction.⁴⁹ In almost similar terms, his contemporary, Julius Nyerere rejected what he referred to as ‘European’ or ‘doctrinaire socialism’ for seeking to build a society on a philosophy of inevitable conflict between man and man and an illogical form of socialism which can only co-exist with its (p. 26) ‘father—capitalism’.⁵⁰ Some of the main features of this African socialism included the ownership of land by the community rather than individuals, the sharing of the wealth of the community, and the recognition of the whole society as an extension of the basic family unit. One common feature which it shared with the so-called doctrinaire socialism was the primacy of the ruling party as the vanguard of the people. This led in most cases to a blurring of the distinction between party and government.⁵¹ Some countries even claimed to have evolved to a point where they had replaced African socialism with what they termed scientific socialism, which was a euphemism for the adoption of non-African socialism.⁵²

Generally, the few countries that adopted socialism and socialist-style constitutions at independence often corresponded with those which had achieved independence through violent and protracted struggle such as Algeria, under the French, and the former Portuguese colonies of Angola, Cape Verde, Guinea Bissau, Mozambique and Sao Tome, and Principe. Besides this, numerous other African countries such as Benin, the Central African Republic, Comoros, Egypt, Ghana, Guinea, Mali, the Republic of Congo, Tanzania, Togo, and Tunisia at one stage or another became subject to the socialist influence or adopted elements of the socialist constitutional model. A number of concepts originating mainly from the former Soviet Union and sometimes Chinese socialist constitutionalism found their way into many of the pre-1990 African constitutions.⁵³

It will suffice to mention a few of those socialist ideological influences on African constitutional developments. The first feature was the language, the style, and the developmental and programmatic formulation of these constitutions. The texts often proceeded in the historicist mode by narrating the exploitative past, the socialist present, and the communist future of the country.⁵⁴ A typical example of such an approach could be seen in the preamble to the independence constitution of Algeria of 1963⁵⁵ and articles 3 and 4 of the 1975 independence Constitution of Cape Verde.⁵⁶ (p. 27) The idea behind this approach is to underscore the fact that the constitutions were to be used as instruments of transformation to guide the development of the country in accordance with socialist principles in order to eliminate the exploitation of one citizen by another and pave the way for a pure communist classless society in the future.

A second feature was the constitutional entrenchment of the dominant and all pervasive role of the ruling party based on the theory of democratic centralism. Although during this period, almost all African countries had adopted the single-party system either de facto or de jure, this was hardly spelt out in such clear and elaborate terms as was done in the constitutions adopted by those countries that had openly declared themselves as socialist.⁵⁷ For example, article 35 of the 1969 Constitution of Congo Republic had declared the new single party, the Congolese Labour Party to be the ‘vanguard organisation … created in order to lead the Congolese people to national liberation and to the construction of scientific socialism … ’ Articles 23 and 27 of the constitution of Algeria of 1963, declared the single party as the ‘vanguard party’ that would ensure stability and serve as the only ‘powerful organ of impulsion’. The duties of the party were also laid out: the party ‘will mobilize, form and educate the popular masses’, ‘perceive and reflect the aspirations of the masses’, and ‘draw up and define the policy of the nation and supervises its implementation’. The effect of this was that socialist-type constitutions were not so much intended to limit government as they were designed to express the idea that the constitution was, in a sense, limited by the ruling party.⁵⁸ This effectively ensured that in all these countries the party controlled the executive and the government as a whole.⁵⁹ Even under the Algerian socialist-style constitution which adopted a French-style presidential system, there were provisions in the constitution which gave the party, the National Council of the Algerian Revolution, full control over the National Assembly and the president: in fact, the party was given the powers to nominate Assembly candidates and presidential candidates and thus effectively dominate both branches of government.⁶⁰

Another feature of socialist-styled constitutions was the approach to dealing with human rights. Many of them contained provisions that purported to recognize and protect fundamental human rights. They were however couched in heavily qualified language which allowed such rights to be enjoyed only if they did not, for example, ‘hinder the emergence of the socialist state’, ‘combat the revolution’, ‘encroach upon the interests of the collectivity’, or ‘threaten the interest of the state, the people or the (p. 28) revolution’.⁶¹ The right to private property was also restricted in many of these constitutions. For example, the Benin constitution of 1975 did not recognize the right to private property whereas this was recognized, albeit subject to numerous qualifications under some constitutions like those of Congo and Madagascar.⁶² Generally, most of these constitutions were either silent or contained very few provisions on economic, social, and cultural rights.⁶³

Although examples of these socialist-inspired influences on so-called socialist countries in Africa before the 1990s could be multiplied, the reality was that there were numerous contradictions. For example, the substratum of the legal system within which these socialist constitutional principles had to operate was from the Western legal systems. This was because the structure and organization of courts in most of these countries remained closer to what had been left behind by the Western colonial powers than anything that was copied from the socialist system. This gave rise to challenges between the liberal legalism of the inherited Western legal systems and the supremacy and dominance of the ruling parties. It was a contradiction that was easily resolved by the control exercised by the party and the executive over the judiciary. And besides, the programmatic nature of these socialist constitutions, with provisions which read more like political manifestoes and programmes of action, did not yield a set of justiciable rules of law. The repressive one-party system, although grounded in socialist theories of democratic centralism, did not only reflect a logical continuation of colonial authoritarianism but as we have seen, found some justification in African social and cultural tradition.

In spite of the widespread flirtation with socialism in Africa, apart from what was stated in the constitutions and the addition of the symbolic phrase ‘People’s Republic’ to the country’s name, there was in substance little that could distinguish many socialist from other non-socialist states in pre-1990 Africa. In fact, the commitment of some countries who toyed around with socialism at one stage or another, such as Ghana and Benin, was palpably shallow and rhetorical, and was often contrived to play the West against the East for foreign aid. Even those countries, like Algeria, which adopted socialist constitutions right from independence, still incorporated some elements of their former colonial master’s system, France, by introducing a presidential system and a National Assembly elected by universal suffrage.⁶⁴ It was therefore no surprise that on the demise of the Soviet Union, the former socialist countries in Africa quickly and easily changed their constitutional ‘coats’ with hardly any of the hangovers that the (p. 29) former Soviet Republics experienced. For example, Benin, which from 1975 to 1990 operated under a typical socialist constitution, was at the forefront of the new wave of constitutionalism in Francophone Africa and today has one of the most liberal French Fifth Republic constitutional models in Francophone Africa. Nevertheless, although the socialist constitutional model seems to have substantially lost the influence it once had on African constitution-builders, there remain traces of socialist ideological influences in some of the former socialist states which have now apparently adopted the Western concept of liberal constitutionalism. For example, the constitutional entrenchment of lay judges, whose role is limited to dealing with issues of fact and not law, emanated from the socialist ideology of popular justice and citizens’ participation in the justice system.⁶⁵ In fact, the socialist orientation has remained a dominant feature of Mozambique’s post-independence legal landscape.⁶⁶ The historicist approach of formulating a preamble which bemoans the ills and mistakes of the past and looks positively to the future has not only survived in some of the old socialist constitutions, such as the preamble to the 1992 constitution of Cape Verde,⁶⁷ but also features in others such as the preamble to the 1996 constitution of South Africa.⁶⁸ Whilst it is clear that the era of the theory of democratic centralism at the heart of which is a single party which is supposed to act as the vanguard and voice of the people is gone, the ghost of excessive centralization and one-party mentality lingers on, but this is so both in states that were once identified as socialist and, those that were not.⁶⁹ Unlike other factors that have influenced modern African constitutionalism such as religion, to which we shall now turn, the socialist constitutional model appears to have suffered a fatal blow with the collapse of the Soviet Union and the increasing retreat of (p. 30) China from its rigid socialist ideological stance in the new globalized world.⁷⁰ The socialist model has clearly lost whatever influence it once had, especially because of popular scepticism towards the concentration of powers and the dictatorship associated with it as African constitutionalism has increasingly come under the globalizing hegemony of neoliberal and Western democratic principles.

3.3  Religious influences

The only religion that has since independence influenced the content of many African constitutions has been Islam. Its impact has depended, predictably, on whether or not the country has a predominantly Muslim population. In non-Muslim countries or in those countries where Muslims do not constitute a significant part of the population, the constitutional provisions on religion have usually been limited to recognizing the freedom of worship and state neutrality in religious matters.⁷¹

Although a detailed examination of the influence of Islam on modern African constitutions is beyond the scope of this chapter,⁷² the role it has played in shaping the evolution of constitutionalism in Africa, even if limited, cannot be ignored. This is particularly so since the rise of Islamic fundamentalism in the wake of the 11 September 2001 attacks in the United States. However, it is the Arab uprisings which began in Tunisia in December 2010 and quickly spread to other countries in the region that has made the inclusion or reinforcement of sharia in the constitutions of African countries with dominant or significant Muslim populations a cause célèbre. Militant groups have since sprung up both in countries with dominant Muslim majorities such as Algeria, Egypt, Morocco, and Tunisia and those with fairly significant Muslim populations such as Burkina Faso, Mali, Niger, Nigeria, and Senegal advocating for Muslim states based entirely on the Koran and sharia law. Some of the continent’s longest serving dictators in Northern Africa, most of whom had gone to great lengths to reduce the influence of Islam on the constitution and their societies in general, were swept aside and the opportunity was provided for the numerous Islamic political groups that had been at the forefront of this revolution to reshape the constitutions of these countries. Other extremist Jihadist groups who have sought to achieve their ends through terror have sprung up elsewhere. Two of the most notorious ones, Boko Haram and Al-Shabaab, have actually taken control of large territories in certain countries and brought them under their rule. Boko Haram⁷³ is based in northeast Nigeria but also operates in (p. 31) Cameroon, Chad, and Niger. It controls some territory in north eastern Nigeria where it has established a so-called ‘Islamic caliphate’.⁷⁴ The other Jihadist group, Al-Shabaab,⁷⁵ has at various stages controlled large parts of central and southern Somalia which it rules under strict sharia law.⁷⁶ In spite of the resurgence of Islamic fundamentalism and the efforts of these militant groups to establish Islamic states through coercion and terror, the influence of Islam on modern African constitutions has not changed fundamentally from what it was before 2010. In fact, the new Egyptian and Tunisian constitutions of 2014 underscore this point.

During the drafting of the Tunisian constitution, three main topics created tension between the Islamic political groups, who dominated the Constituent Assembly and secular movements. These were: the role of Islamic law in the constitution and in domestic legislation; the prohibition of blasphemy in both the constitution and in the Penal Code; and the constitutional rights of women. Proposals that provisions should be included in the constitution which made Islam the main source of legislation, criminalized blasphemy, and stated that women had a complementary role to men in family life rather than being their equal, were rejected after fierce opposition in the Assembly supported by protests in the streets.⁷⁷ A comparison of the influence of Islam in Tunisia’s 1959 independence constitution and its 2014 constitution will give an idea of what appears to be happening. The preambles to both constitutions are fairly similar in their references to Islam. Article 1 of both constitutions declares Islam to be the state religion. The only difference is the addition to the 2014 constitution provision stating that ‘this article cannot be amended’. In the 1959 constitution, article 37 declared that the religion of the president of the Republic is Islam. In similar but perhaps more emphatic language, article 74 of the 2014 constitution declares that only Tunisian nationals ‘whose religion is Islam shall have the right to stand for election to the position of President of the Republic’. There is therefore no practical difference insofar as Islamic provisions in the two constitutions are concerned.

By way of contrast, in Egypt, after the ousting of Mubarak and the election of Mohamed Morsi of the Muslim Brotherhood as president in December 2012, the latter proceeded to replace the 1971 Egyptian constitution with one based on Islam with the support of a parliament which was dominated by the Muslim Brotherhood. Concern over the role Islam was going to play in the political life of Egyptians was one of the reasons for the overthrow of Morsi and the replacement of the 2012 constitution with a new one in 2013 but which was approved by a referendum and took effect in 2014. (p. 32) A brief comparison of the influence of Islam in the two constitutions is indicative of the impact Islam is having in the content of present constitutions.⁷⁸ First, the 2014 constitution removed one of the most radical and controversial changes introduced by the 2012 constitution viz, the legislative role reserved for Al-Azhar. The 2012 constitution made it imperative that the Al-Azhar, one of the Islamic world’s most venerable institutions, had to be consulted in all matters pertaining to Islamic law. There were concerns because although the courts retained the power to interpret and apply the law, it was unclear what weight was to be given to the opinions of the Al-Azhar, especially where the courts disagreed with them. Second, the 2014 constitution removed an article in the 2012 constitution which made it a crime to ‘insult any messengers or prophets’. Third, both constitutions recognize Islamic law as the principal source of legislation but the 2014 constitution eliminated an article which sought to define Islamic law in language which many feared could be used to impose a specific vision of Islamic law. Fourth, the preamble to the 2012 constitution called women ‘the sisters of men’, but the 2014 constitution is more explicit and states that women are equal to men and commits the state to the ‘protection of women against all forms of violence’. Finally, the 2014 constitution explicitly forbids the establishment of political parties ‘formed on the basis of religion’.⁷⁹ This latter approach is similar to that adopted in the earlier Moroccan constitution of 2012 which declares Islam a state religion and also includes a provision which prohibits political parties founded on a religious basis.⁸⁰

Generally, the role given to Islam in present African constitutions, especially the new ones adopted since the beginning of the Arab uprisings differs according to whether the country has a dominant Muslim population or not. In most countries with a dominant Muslim majority, the preamble to the constitutions often refers to Allah and principles of sharia law.⁸¹ The constitutions also usually have an explicit reference to Islam as the official state religion.⁸² Some of the more tolerant states in this category expressly allow (p. 33) for freedom of worship.⁸³ In some of these countries, believers sometimes do not have the same rights as non-believers.⁸⁴ In addition to this, some of these constitutions also directly or indirectly refer to Islam as the main source of law.⁸⁵ By way of contrast, the main constitutional concession made by countries with a significant or minority Muslim population has been with respect to the recognition of sharia law in regulating matters of personal status such as marriage, divorce, and inheritance, and the establishment of Islamic courts.⁸⁶ The possible reason for the absence of any references to Islamic courts in the constitutions of countries with dominant Muslim constitutions could be that such courts are assumed to be part and parcel of the Muslim way of life that need not be expressly spelt out.

Be that as it may, it would seem that in spite of the rise of Islamic fundamentalism and activism and attempts to establish Islamic republics in many African countries with the backing of al-Qaeda-affiliated groups, the majority of Africans, even in countries where Muslims are the dominant majority, like Egypt and Tunisia, are not yet ready for Islamic states or radical constitutional changes based on Islam. Thus, although the populations of both Egypt and Tunisia were happy to vote for Islamic parties, they opposed the introduction of constitutional provisions which could lead to Islamic states in which amongst other radical changes, the rights of women would be forfeited. It seems increasingly unlikely, therefore, that the limited role that Islam has played in determining the content of African constitutions will change significantly.⁸⁷

3.4  Indigenous influences

Before colonial rule, African indigenous institutions of administration in which the traditional ruler and his traditional council exercised executive, legislative, and judicial powers were firmly in place to ensure peace, security, and stability. These were however (p. 34) quickly dismantled by the colonial powers.⁸⁸ Although written constitutions were introduced into Africa only during the colonial period, not every aspect of their content was based only on Western ideas.⁸⁹ A number of constitutional institutions and principles which have their roots in African indigenous culture and traditions found their way into some of the early constitutions and have now become a common feature of modern African constitutionalism. There is however considerable variety in how these institutions look and what effective role they play today and are likely to continue to play in the future.

With respect to institutions, the limited powers that the colonialist allowed traditional rulers to exercise was not out of any particular desire to protect the cultural heritage of the people but rather because it was consistent with the general colonial policy of indirect rule. By collaborating with the traditional rulers, the exploitation of the colonies was made cheaper and more effective. Besides some limited powers of administration, traditional rulers retained much of their judicial powers which were exercised through the traditional dispute settlement agencies. Many aspects of the traditional dispute settlement institutions and processes survived the ravages of colonial rule. The traditional courts had jurisdiction only over Africans and their powers during the colonial period were progressively reduced. As such, by the end of this period, these traditional courts hardly had any jurisdiction over criminal offences. Furthermore, the scope of application of customary law was restricted to the local population but by the end of the colonial period, the traditional courts were in most instances relegated to mere informal and optional methods of settling disputes because the imposed European-style formal court system had become completely dominant. Besides this, customary law was recognized and lawfully enforced only if it was not repugnant to natural justice, equity, and good conscience or incompatible directly or indirectly with any written law in Anglophone Africa (the so-called repugnancy test) or contrary to ordre public (public order and good morals) in Francophone Africa.⁹⁰ Post-colonial African states for a long time retained the colonial attitude towards traditional African institutions, especially customary courts. Some states for a short while abolished these traditional courts shortly after independence whilst many retained them as an inferior system to the imposed colonial justice system, very much as it had been (p. 35) during the colonial period.⁹¹ For example, in Burundi and Zambia, the traditional courts for a long time had no official links with the formal judicial system and were merely tolerated. In Botswana, some of the traditional courts are officially recognized and integrated into the formal judicial system whilst others operate outside this system.⁹²

The issue of whether and to what extent traditional institutions should be incorporated into modern African constitutions has generated intense and sometimes acrimonious debate between the so-called ‘traditionalists’ and the ‘modernists’, or sceptics as they are sometimes referred to.⁹³ After decades of manipulation by the colonial and post-colonial governments and their complicity in the repression of the local population, some of the modernists feel that there are too many questions about what is really ‘traditional’ and how historically rooted these traditional institutions are. To the modernists, the traditional African institutions are an historical relic that belongs to antiquity because in many instances they act as a hindrance to the development and transformation of the continent. In many instances, they are undemocratic, divisive, and costly. For example, in South Africa, the collaboration of many traditional rulers with the apartheid regime⁹⁴ and elsewhere in Africa, their collaboration with some of the worst dictators and human rights abusers today has profoundly discredited them and paved the way for their loss of legitimacy, loyalty, and support amongst the younger generation. Many now wonder whether they have any place in a modern (p. 36) Africa still grappling with the challenges of entrenching an ethos of constitutionalism and respect for the rule of law.⁹⁵

The ‘traditionalists’ on the other hand, see African traditional institutions as part of an enduring heritage which not only play a critical role as custodians of African culture and traditions but also represent the best link between the government and the grassroots. In doing so, they act as a valuable instrument for maintaining peace, order, and stability. In spite of these debates, the reality is that many modern African constitution-builders, but by no means all, have in diverse ways blended traditional African institutions with those usually associated with modern liberal constitutional democracies.⁹⁶ There is however considerable variation in what these traditional institutions look like and the role that they play.

Generally, many contemporary constitutions specifically recognize and entrench the role of customary law and traditional courts as well as that of some of the pre-colonial traditional institutions. Some constitutions have retained the pre-colonial dual system of courts but formally integrated the traditional courts with the formal modern courts in a hierarchy which sees the former as the lowest courts.⁹⁷ Some have in addition given constitutional recognition to traditional rulers and specified inter alia, the principles under which they will operate, their functions, and the basis for their appointment and removal as well as their remuneration.⁹⁸ Botswana is one of the few African countries that have provided for a second chamber of parliament, called the Ntlo ya Dikgosi (House of Chiefs), composed only of traditional rulers. It is not and does not however play the role normally associated with a second chamber of parliament and is consulted only on issues pertaining to customary law⁹⁹ and bills relating to tribal land and chieftainship.¹⁰⁰ Like Botswana, Ghana in its 1992 constitution also provided for the establishment of a National House of Chiefs and Regional Houses of Chiefs.¹⁰¹ Although they have more powers than the Botswana House of Chiefs, they also do (p. 37) not act as a legislative body.¹⁰² Perhaps the most significant aspect of the Ghanaian approach is that the constitution expressly insulates traditional chiefs from partisan politics but allows any chief who wants to take part in active politics to abdicate from his position.¹⁰³ Swaziland illustrates an example of the failure to reconcile certain fundamental institutions of Swazi indigenous constitutional practices and customs with modern African constitutionalism. Its 2005 constitution, despite all appearances, does no more than give a veneer of constitutional legitimacy to what is at best a system of absolute monarchy supposedly based on Swazi culture.¹⁰⁴

However, the absence of formal constitutional recognition of traditional institutions in any African constitution does not necessarily mean that they have no role to play in the governance of the country. A typical example of this is Nigeria. Although the 1999 Nigerian constitution, unlike previous constitutions, does not formally recognize the institution of traditional rulers, they nevertheless exercise enormous influence over the lives and well-being of millions of Nigerians.¹⁰⁵ It can be said that the role of traditional rulers in constitutional governance has been treated in a pragmatic manner that gives them some de jure or de facto recognition depending on the possible influence that the particular traditional ruler has over his local community. Nevertheless, one of the few traditional institutions that appear to be experiencing a resurgence or revival is the traditional dispute settlement process. When considered as a part of the informal justice system, a recent study has indicated that they constitute a ‘cornerstone of dispute resolution and access to justice for the majority of the populations in developing countries because they usually resolve between 80 to 90% of disputes’.¹⁰⁶ For example, in Malawi, it is estimated that between 80 to 90 per cent of disputes are processed through traditional courts, and in the case of Burundi, the figure is about 80 per cent which goes through its Bashingantahe institution as a court of first or sometimes only instance.¹⁰⁷ The growing popularity of the traditional justice system is not surprising; it is more easily accessible (especially to the poor, uneducated, and marginalized), quicker, and provides affordable remedies. Although some recent African constitutions have retained and formally recognized the dual legal system (p. 38) which places traditional courts at the bottom of the hierarchy of ordinary courts,¹⁰⁸ others have been silent. As in the case with traditional governance institutions, the non-constitutionalization of the role of traditional courts in a country does not necessarily mean that such courts are not in operation.

Perhaps the most controversial problem concerning customary law in the immediate post-independence period was the failure of constitution-makers to boldly deal with those customary law principles and practices which actually or potentially discriminated against women and the youth or could not be reconciled with fundamental human rights principles. Many post-independence constitutions either glossed over this or dealt with it in an evasive and unhelpful manner by stating that customary law rules and practices constituted an exception to the constitutional prohibition of discrimination.¹⁰⁹ With perhaps the exception of Zambia,¹¹⁰ the constitutions of most Anglophone African countries now expressly retain customary law only to the extent to which it is consistent with the constitution.¹¹¹ This is a positive development that provides an opportunity for judges, especially those in the superior courts, to contribute to the modernization of customary law and aligning it to contemporary human rights standards.

Turning now to the indigenous African contribution to constitutional law principles, doctrines, and theory, this is more often than not, reflected in constitutional interpretation and application rather than the constitutional texts. One of the best examples of this appeared in the South African interim constitution of 1993. It is one of the first to use an important African constitutional concept, ubuntu, in the constitution.¹¹² It is (p. 39) not clear why this concept was excluded from the final constitution;¹¹³ nevertheless, the courts have repeatedly underscored its relevance not just in the interpretation and application of the constitution but also in dealing with South African law in general.¹¹⁴ Thus, in Port Elizabeth Municipality v Various Occupiers, the Constitutional Court said:

We are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.¹¹⁵

The exact meaning and scope of the concept of ubuntu remains a matter of considerable debate but its application as an important constitutional principle deeply rooted in African practice and culture is no longer in doubt. For example, ubuntu has frequently been invoked as an analogous concept to dignity.¹¹⁶ Besides this, several studies have shown that there were traditional checks and balances to ensure that African traditional rulers do not abuse their powers.¹¹⁷ Most of the traditional mechanisms for disciplining errant rulers were removed or curtailed by the colonial powers through the (p. 40) arbitrary removal and appointment of traditional rulers under appointment letters spelling out their powers and functions. The letters made these rulers serve at the pleasure of the colonial authorities and depend on them rather than on the wishes of their subjects.¹¹⁸ Generally, the colonial authorities deposed and executed traditional rulers when the latter failed to serve the need of the colonial government.¹¹⁹

Looking to the future, the scope for African indigenous ideas and institutions influencing future constitutional developments does not look particularly promising. Besides growing reservations about traditional rulers and their commitment to their people rather than opportunistic alliances with governments, many people now live in towns and have little contact, attachment, or loyalty to these rulers and even less to the institutions that they represent.¹²⁰ For example, the South African government has struggled for more than six years to introduce a Traditional Courts law aimed at giving traditional rulers an enhanced role to exercise certain judicial powers over those living within their communities, but it keeps coming up against serious opposition from many civil society and human rights organizations. In commenting on this, Christina Murray warns:

We must guard against the possibility that a new order revelling in its emancipation from (neo) colonial rule will abrogate its responsibility to its citizens in the name of a new Africanisation. The danger is that settlement with the lobby of traditional leaders will be a smokescreen for the failure to implement democracy where it really matters: at grassroots, in the material conditions of the ordinary existence of women and men.¹²¹

Another problem is that traditional institutions were suited to the rural and agrarian communities of the past not the modern communities where the chiefs hardly have any effective administrative powers. For the foreseeable future, and with perhaps the exception of traditional courts, the role that will be formally and expressly reserved for indigenous traditional institutions in modern African constitutions will be very limited. However, it must also be acknowledged that there are still many far-flung remote rural communities in Africa who have little access to government administrative and judicial services and thus by default still have to depend on their traditional administrative and dispute settlement systems.¹²² This is also the case in some conflict ridden countries, such as Somalia, South Sudan, and parts of DR Congo and Uganda where traditional institutions still dominate due to limited or no access to central (p. 41) government services.¹²³ In the absence of such exceptional circumstances, indigenous African influence on the form and content of modern constitutions is reducing at a time when the influence of external factors, through the process of internationalization, to which we must now turn, is increasing.

3.5  The impact of the process of internationalization

As the writers, Finer, Bogdanor, and Rudden rightly point out, constitutions differ widely because ‘different historical contexts have generated different preoccupations and priorities, and these in turn have led to quite different constitutional structures’.¹⁴⁸ Most African countries have gone through a fairly similar historical experience even if the colonizers were different. Because of this similarity of historical experience, the legal and constitutional traditions that were inherited have also been alike. The post-independence constitutional challenges have been comparable; so too have the efforts since the 1990s, to revive and entrench a culture of constitutionalism and respect for the rule of law. We will see how the colonial context has left an enduring impact and the main features that are emerging.

4.1  The colonial context as dominant influence

The colonial influence on African constitutions continues to be strong. It is not surprising that Michel Rosenfeld, using ‘prototypes constructed with reference to actual historical experiences’, distinguishes between seven distinct constitutional models, one of which is the post-colonial constitutional model.¹⁴⁹ African constitutions are all grouped under the post-colonial constitutional model, which he describes as comprising of ‘all constitutions adopted by former colonies in Africa and Asia that achieved independence after World War Two … ’.¹⁵⁰ In the light of the diverse influences to constitutional development discussed earlier, the question does arise as to whether there are any common patterns amongst African constitutions or some of them, which can justify placing them in a specific category, sub-category, system, or sub-system beyond the general categorization of ‘post-colonial constitutional model’.

From the various influences on the nature, content, and scope of African constitutions examined earlier, it is contended that the most significant, if not dominant influence, is the legal tradition within which they were adopted and operate. As noted earlier, this will mean classifying them into those derived from the common law tradition and those derived from the civil law tradition. There is indeed a strong case for arguing that African constitutions are inextricably linked with the legal system within which they were adopted and have operated since independence. This is mainly because, as we have seen, the independence constitutions were imposed by the departing colonial powers and in many cases, a typical example being the French, who simply transplanted the 1958 Fifth Republic Constitution with very few changes.¹⁵¹ It is also (p. 47) because, since independence, most African constitutions have been revised within the inherited colonial models. From this, it would seem that a classification based on the legal tradition is quite compelling, for as Cheryl Saunders rightly points out, the legal and constitutional systems complement each other.¹⁵² However, this conclusion is subject to a number of caveats.

First, Britain, without a written constitution itself, hardly transferred an exact replica of the British constitutional system to its African colonies. Second, perhaps because of the strong role of national history and culture in constitutional form, there is no automatic and inevitable link between the legal tradition and the constitutional system. For example, the American legal system, although based on the common law, has developed its own distinct constitutional system to cater for its peculiar concerns. In fact, the distinctive American approach underscores the fact that other factors such as the historical context, the ethnic, linguistic, and religious diversity of the country, and the fundamental concerns and preoccupations of the people also have a major impact on constitutional design and model.¹⁵³

Mindful of these caveats, it can be said therefore that a careful analysis of modern African constitutions suggests that although they cannot strictly be classified based on the legal system within which they operate, this legal tradition has in most countries been the dominant influence on the constitution. However, whereas the French legal tradition has given rise to a peculiar French constitutional tradition that was transplanted to Africa, only certain elements of the English constitutional tradition could for obvious reasons be incorporated into the written constitutions that were drafted in Whitehall for Anglophone Africa. Many other elements, as we shall see in other chapters of this book, were borrowed from the American constitutional system. To this extent it can be said that what was effectively adopted in Anglophone Africa was a mix of the English and American constitutional tradition. The constitutions adopted in Lusophone and Hispanophone Africa were also substantially influenced by the civilian traditions within which they were adopted. It could therefore be said that, from a taxonomic point of view, whilst African constitutional systems are not necessarily co-extensive with the legal traditions within which they were adopted, they are closely linked. If one were to adopt Patrick Glenn’s concept of ‘fuzzy’ boundaries¹⁵⁴—one could classify modern African constitutional systems into two main traditions—the civilian and the common law or Anglo-American model.

A majority of the African constitutions based on the civilian tradition, have been influenced by the French constitutional tradition. This category will include not only all of Francophone African constitutions but should also include those of Hispanophone and Lusophone Africa because of their deeply rooted civilian foundation.¹⁵⁵ The others can be described as belonging to the Anglo-American constitutional tradition because, (p. 48) although based largely on English constitutional law principles, institutions, and practices, many aspects of these constitutional institutions, principles, and practices have been borrowed from the American constitutional system. References to the common law constitutional tradition in Africa must therefore be mindful of the considerable elements of American constitutional law that have been incorporated into the post-independence Anglophone African constitutions. In a similar manner, references to the civilian constitutional tradition include not only the Francophone African constitutions based on the French Fifth Republic Constitution of 1958 but also Lusophone and Hispanophone African constitutions which incorporated elements of Portuguese and Spanish constitutional practices respectively. Such a broad classification is reasonable for as Cheryl Saunders has cautioned, ‘constitutional classificatory systems should err on the side of inclusion’, and thus allow for evolution and not freeze understanding around certain patterns.¹⁵⁶ It is necessary to see to what extent these two dominant influences have made African constitutional patterns distinctive vis-à-vis each other.

4.2  Distinctive features of the emerging common law and civil law constitutional traditions in Africa

Although the features that justify making a distinction in modern African constitutions between those that belong to the common law constitutional tradition and those that belong to the civil law tradition warrant a separate detailed treatment, in this chapter it will suffice just to briefly illustrate this with a number of examples. In the main, these constitutions can be distinguished from each other in terms of their general structure and their approaches to issues such as the judiciary, separation of powers, and independent regulatory and watchdog organizations.

As regards the overall structure, since the 1960s, the constitutions of Anglophone African countries have generally been much longer, more detailed, and explicit as compared to other constitutions, especially those of Francophone African countries which were usually shorter and often set out issues in broad outline, leaving the details to be fleshed out in ‘organic laws’.¹⁵⁷ Since the 1990s, most constitutions both civilian and common law models, have increased in length to reflect new issues such as the wide range of human rights recognized and protected, environmental protection, and as we shall soon see, new institutions designed to promote democracy and accountability.¹⁵⁸ Nevertheless, Anglophone constitutions have remained quite long, for (p. 49) example the 2013 constitution of Zimbabwe with 345 sections, Nigeria’s 1999 constitution with 320 sections, Ghana’s 1992 constitution with 299 articles, Kenya’s 2010 constitution with 264 articles and South Africa’s 1996 constitution with 243 sections. Although some civilian constitutions have now increased considerably in length as compared to the past, with the constitutions of Burundi (2005), Angola (2010), DR Congo (2005), and Rwanda (2003) having 307, 244, 229, and 203 articles respectively, they are still relatively shorter, with some being very short, such as Cameroon’s 1996 constitution which has only sixty-nine articles. Even for those post-1990 civilian style constitutions that have become lengthy, this increase in length is mostly in terms of the number of provisions adopted, not with respect to their scope, depth, or the details of issues covered.¹⁵⁹ One reason for the continuous differences in length and details seems to be that most modern Anglophone constitutions have in different ways copied the interventionist approach started in the South African constitution of 1996. It provided detailed provisions designed not merely to restructure power but also to facilitate societal change in what is now referred to as transformative constitutionalism. Key elements of this agenda of transformative constitutionalism,¹⁶⁰ which has also necessitated long and detailed constitutional provisions, are: broadly worded provisions recognizing a wide range of fundamental human rights which are enforceable vertically and horizontally, broad access to justice rules, and wide ranging institutions of accountability.¹⁶¹

Another area of differences concerns the structure and role of the judiciary. Three significant differences stand out when comparing common law- and civil law-styled constitutions in Africa. First, most Anglophone constitutions have maintained the common law approach of a single hierarchy of courts with jurisdiction to deal with all types of disputes but with specific courts to deal with certain matters such as labour and family disputes. By contrast, most constitutions with civilian roots provide for a hierarchy of at least three streams of courts viz, ordinary courts, administrative courts, and audit courts.¹⁶² The ordinary courts deal with disputes between private individuals, the administrative courts deal with disputes between private individuals and the state or quasi-public agencies, and the audit courts deal with disputes concerning financial matters. Sometimes, a court of conflicts is provided to deal with disputes over which one of these three jurisdictions has the power to deal with a certain matter. Such conflict may arise where for example, more than one of them claims jurisdiction over the matter or declines jurisdiction to entertain the matter. Second, whereas the courts that have powers to entertain disputes concerning the interpretation and application of (p. 50) the constitution in Anglophone constitutions are usually part of the ordinary hierarchy of courts, in the civilian-style constitutions, the courts that have exclusive jurisdiction to deal with these disputes are specialized centralized courts which do not form part of the hierarchy of courts.¹⁶³ Third, whilst some recent Anglophone constitutions, the best examples being those of South Africa and Zimbabwe,¹⁶⁴ have gone to considerable lengths to recognize and protect the independence of the judiciary, civilian-style constitutions do no more than pay lip service to this concept. Almost all these constitutions provide that the president will act as guarantor of the independence of the judiciary and in doing so, will be assisted by the Conseil Supérieur de la Magistrature (a body with some limited functional resemblance to the judicial service commissions in Anglophone Africa).¹⁶⁵ Since the president often controls this body both in terms of composition and agenda setting, this effectively limits the ability of the judiciary to operate independently.

Two other important area of differences, which are discussed in other chapters of this book concern the approaches to the doctrine of separation of powers and the hybrid institutions of accountability which complement it, which are becoming increasingly common.¹⁶⁶ As regards the approach to separation of powers, most Anglophone constitutions have adopted the English approach but with some elements of the American approach, whilst the approach adopted in the civilian jurisdictions is mainly based on the French 1958 Fifth Republic Constitution’s approach.¹⁶⁷ With respect to independent watchdog institutions to promote transparency and accountability, this is becoming a common feature of post-1996 Anglophone constitutions and actually started with the 1996 South African constitution.¹⁶⁸ The most elaborate examples of similar institutions now appear in articles 248–54 of the 2010 constitution of Kenya and sections 232–63 of the 2013 constitution of Zimbabwe. By contrast, it is (p. 51) only fairly recently that some civilian-style constitutions are beginning to entrench such institutions. However, apart from articles 126–30 of the 2014 constitution of Tunisia which contain a list of what it refers to as ‘independent constitutional bodies’ the practice is not well developed in the civilian jurisdictions.

In spite of these distinctive features there is also considerable evidence from the trend in most recent constitutions, especially those crafted after 2010 that as a result of the internationalization of constitutional law principles and the cross-fertilization of ideas there is increasing similarity and even possible convergence in terms of content and approaches in constitutional content in Africa today. This is particularly evident from the last point made above, which is the emerging trend of entrenching independent institutions to support the fledgling attempts to establish democratic and accountable governments. It is also evident from the fact that unlike in the past, most African constitutional courts have powers of both abstract and concrete review.¹⁶⁹ The approach to human rights protection has also changed. Whereas before the 1990s, most civilian-styled constitutions mentioned human rights mainly in their preambles, today, save for a few exceptions,¹⁷⁰ there are elaborate provisions recognizing and protecting human rights. In spite of these areas of convergence of approach, it is unlikely that this will lead to complete uniformity of constitutional content and approach in all African countries. Besides, as has been rightly noted: ‘[C]onvergence in form does not necessarily mean convergence in understanding, in values and priorities or in the operation of constitutional arrangements in practice in the face of a plethora of local contextual factors.’¹⁷¹