Constitutionalism in Africa Programme

The Constitutionalism in Africa Project was a result of a tripartite collaboration between the governments of South Africa, Switzerland, and ACCORD. It was one of the few programmes that brought together government and civil society to pragmatically address conflict management in Africa. The project was launched in November 2000 and ended in November 2002. It was financed by the Swiss Federal Department of Foreign Affairs.

The project was based on the concept that constitutions in Africa are the product of a colonial legacy, which explains why they lacked ownership, legitimacy and relevance to the African context. ACCORD’s assumption was that the dysfunction of the states in Africa could be corrected if African countries could have ownership of their institutions and if those institutions were to be relevant to the conditions in Africa and the aspirations of the African people. Our conscious view is that the legacy of the colonial State needs to be overcome if an African renaissance is to be realized and that entails looking for alternative democratic and truly African models of constitutional democracy.

Contribution of the project

The project was steered through the support of a panel of African and international experts, drawn from different disciplines. The panel was co – chaired by Ambassador Francis Deng, Special Advisor to the UN Secretary General and Prof. Jakes Gerwel, former Director General to President Nelson Mandela. Other members of the panel included Dr. Nicholas Haysom, former legal advisor to President Mandela and Adv. Richard Sizani, Director General of the KwaZulu Natal Provincial and Local Government. The project relied on the expertise of selected members of the panel to provide support to the Rwanda Constitutional and Legal Commission; Kenya Constitutional Review Commission and the Swiss-supported Somali Constitutional and Technical Working Group. In the later stages of the project, a Sudan Expert Reference Group, chaired by Amb. Francis Deng, was formed to critically interrogate the ongoing Sudan peace process and formulate principles that could guide the drafting of a transitional constitution in that country.

Lesotho

The project engaged in projects in a number of countries, including Lesotho, in the run up to the elections held there in May 2002. Project staff took part in a series of workshops aimed to bring about a multi party consensus on the new electoral model prior to the elections. A post-election audit which examined the degree to which the new electoral model had brought about stability in Lesotho was produced and disseminated in the region.

The Sudan

Other countries of engagement included the Sudan, where the project convened a series of workshops that brought together experts from the panel, Sudanese experts and a facilitator from the Sudan peace process. The experts examined the peace models that were being drafted as the peace process moved forward. The workshops were held before and after each negotiation session, and benefited from the participation of one of the facilitators of the peace process.

A set of principles and guidelines for drafting a transitional constitution that could help create a new basis for unity in diversity resulted from those workshops.

Tanzania

In Tanzania, the project worked with the Mwalimu Nyerere Foundation to set up a National Platform on Constitutional Development in Tanzania, which involved stakeholders from government, political parties, parliament, civic society, academics and the media to assess the state of constitutionalism in Tanzania. Sets of recommendations were channeled to all political parties and members of the parliamentary constitutional and legal committee. The platform was situated within the framework of bilateral talks that were taking place between the ruling and opposition parties with a view to making constitutional reforms as a result of the impasse that had arisen from the electoral dispute in August 2000. The National Platform has since been taken over by the Mwalimu Nyerere Foundation and more sessions are envisioned.

Current developments in the project

The initial grant from the Swiss Department of Foreign Affairs to establish the Constitutionalism in Africa Programme has officially come to an end. ACCORD, however, continues to address the issue of constitutionalism in Africa through its own efforts, or in collaboration with donors. For instance, project staff are currently involved in a German-funded programme to popularize the Promotion of Administrative Justice Act of South Africa. Secondly, a selected set of publications which were produced during the project time frame are being published and disseminated for wider use.

New issues and areas of engagement

Project staff are also finalizing plans for a research project that will tackle the dynamics of constitutionalism in specific countries of the Great Lakes region. The project will be both investigative and policy oriented and will rely on applied field research and policy dissemination that will cover DRC, Uganda, Rwanda and Burundi. The purpose is to interrogate models that could integrate the African normative context and modern constitutional ideas in a comprehensive framework. That way, ACCORD will remain true to its call for alternative democratic and truly African models of constitutional democracy that could form a basis for wider policy engagement.

Considering that many African countries are still in the process of nation-building, it is absolutely critical that the political and constitutional framework should be constructed in a manner which balances unity with national diversity and which fosters a commonality to which all groups can confidently identify. When national groups find themselves threatened with minority status, excluded, or marginalised they would rather rebel against the national framework and exit if they have the chance to engage in armed struggle. This has always posed a serious challenge to the legitimacy of the state, and has led to wars in several African countries. The main point is that while constitutional democracy, broadly defined in terms of normative ideals or principles, is universally valued, it needs to be made relevant to the African reality and normative context to make it more home-grown and reflective of national diversities. This is the biggest challenge facing constitutionalism in Africa and one which requires the active support and engagement of Africans, Africanist scholars and supporters of Africa from the international community.