THE PRIMACY OF POWER AND LIMITED VISION WITHIN CONTEMPORARY AFRICAN CONSTITUTIONALISM[1]

In the last blog, I made the claim that the rise in juristocracy was at the expense of the more representative arms of the State and thus inimical to representative democracy. In this instalment, I make the claim that the masses have been complicit in and actively sanctioned the amassing and sustenance of imperial powers by the executive branch.


Professor H.Kwasi Prempeh

 According to renowned author and academic Kwasi Prempeh, the huge burden placed on the judiciary to promote and sustain constitutionalism is demonstrative of the failure to build credible checks and balances into the “political half of the state.”[2]In other words, excess power within the executive leaves people with no option but to approach the courts to level the playing field. In fact, African leaders’ preference for an authoritarian State model has its roots in the colonial state and its indelible features of “…a unitary and internally unaccountable executive (the colonial governor), possessed of extraordinary powers, a centralized administration, subordinate courts, compliant chiefs with no organized opposition party,”[3] Given this history of unchecked powers at the executive level, post-colonial leaders sought to regain imperial status; legitimizing their colonial nostalgia in the name of urgent developmental goals and achieving greater unity.[4] Coupled with the wealth of what scholars call the ‘large reservoir of unrivalled legitimacy’ that comes with founding fathers’ “founder rights,” many African States, as in Zimbabwe, revised and replaced the post-colonial parliamentary model with an executive presidency. Thus, “the process of reconfiguring legitimacy within the postcolonial state and society had but one beneficiary, the president.”[5] Legislative and constitutional changes only took the constitutional order closer and closer to the colonial past.

 

Interestingly, in spite of various waves of constitution building, no African state has opted to return to the parliamentary model with its system of checks and balances and parliamentary sovereignty. To the contrary, the imperial presidency has thrived. Further to various constitutional reform exercises, it was noted that the emerging Presidencies retained the monopoly of policy initiatives, dominated law-making and thus remained “the real source of the laws governing society’s routine social and economic activity.”[6] The irresistible conclusion was the existence of a cosy relationship between the people, or at least political elites, and the imperial presidency. Concordantly, it was noted that calls for political change in Africa were driven more by a desire to be part of government rather than to seek to reform it.[7] In this vein, emerging constitutions were more concerned with elections and the politics of turnover in high office rather than the rule of law, constitutionalism, checks and balances and reducing the powers of the executive. This preoccupation with elections is driven, fundamentally, by a confirmation bias and failure to problematize institutional excess. That is to say, people believe their own person will use those same (excessive) powers with greater moral aptitude, not indistinct from Dambisa Moyo’s advocacy for a benevolent dictator.[8]

The Principals to the Inclusive Government who overwhelmingly endorsed the Constitutional Draft

Comparing the outcome of Zimbabwe’s constitutional reform process to the pitfalls noted by scholars in other jurisdictions is both informative and illuminating. This is more so because the Constitution of Zimbabwe represents a significant constitutional consensus. It was approved by 94.49% of voters in a referendum held in March 2013. It had the support of President Mugabe’s ZANU PF, Morgan Tsvangirai’s MDC-T and Professor Welshman Ncube’s MDC. In fact, leaders of newly emerging political parties such as Tendai Biti of the People’s Democratic Party (PDP), Elton Mangoma of the Renewal Democrats of Zimbabwe (RDZ) and Joyce Mujuru of Zimbabwe People First (ZPF) were all in support of its enactment. The only significant opposition took the form of a ‘Take Charge’ campaign led by the National Constitutional Assembly (NCA) together with the Zimbabwe Congress of Trade Unions (ZCTU), a faction of the Zimbabwe National Students Union (ZINASU) and the Progressive Teachers’ Union of Zimbabwe (PTUZ). Outside of this coalition, the constitution was universally accepted. It is a reflection of some shared understanding of politics, power and constitutionalism in Zimbabwe.

However, if the pitfalls noted by Prempeh and others were warnings, they were not heeded. The President’s powers remain substantially intact. He retains exclusive powers to choose an unlimited number of cabinet ministers and deputy ministers[9] who, including the President, are the real source of laws for the palpably weak legislature (which he can dissolve if it does not pass his national budget or passes a vote of no confidence in his government[10]). He retains a wide array of appointing powers and remains both head of state and government. The only restraint on the presidency is the imposition of the two-term limit. Thus, in the words of Prempeh, it is the rules of entry and exit and not the rules of play which have changed. As succinctly put by scholars: “…the contemporary African president generally retains within the constitutional and political orbit the essential attributes of imperium long associated with presidential power in postcolonial Africa. The imperial presidency in Africa has been term-limited but not tamed.”[11]

This begs the question of how such a broad civic and political consensus would support retrogressive provisions already warned of by scholars. There could have been enthusiasm over other provisions in the constitution (expanded declaration of rights, constitutional commissions, affirmative action for women) as well as the view/hope that the spirit of the constitution would overcome any seemingly retrogressive text (both views which have surely been discredited).

 

 

Another possibility, which I would opine more accurately accounts for this consensus, is the fact that people follow the power. They prefer leaders who wield immense power albeit without an appreciation of its truly corrosive effect. It is not just ZANU PF which supports an all-powerful leader. Steps taken over a long time have increased the amount of power wielded by Morgan Tsvangirai, the leader of the main opposition MDC-T. In national politics as in opposition politics, leaders have amassed immense powers for themselves with the people’s consent. Thus people not only want powerful leaders, but want to follow powerful coalitions which are likely to lead to electoral victory. This would explain why the parties to the Inclusive Government were in agreement over the imperial presidency. It can be argued that African peoples, broadly, have more intimate encounters with power in the form of chiefs who are not themselves representatives of limited executive power; meaning more people are inclined to believe in benevolent paternalism than limited power through checks and balances, making constitutionalism and the rule of law an exercise in social engineering.

This preference for power replicates itself at all levels, including in civil society where one continues to witness power being amassed in the hands of individuals and is legitimized in the broader context of fighting an (equally) evil regime. The same “founder rights” are used to legitimise wealth accumulation and exclusive use of resources by a small clique of powerful civic elites. Like Agent Smith replicating himself throughout the Matrix in the Matrix trilogy, the self-serving habits of the dictatorship are reflected and replicated throughout society and are sanctioned and given constitutional approval.

Like Agent Smith replicating himself throughout the Matrix in the Matrix trilogy, the self-serving habits of the dictatorship are reflected and replicated throughout society and are sanctioned and given constitutional approval.

Making an appeal to the greater good or showing evidence of malfeasance either by the regime or its opponents to a member of either is akin to trying to convert a religious person, that is to say, it is all about the power and the glory. No matter what argument is advanced, persons will align with the centre they believe holds real power; be it the power of incumbency (ZANU PF) or power of numbers (MDC-T), what will hold sway will not be the power of the principle (democracy/constitutionalism/rule of law). As long as constitutionalism and the rule of law continue to hold illusory power and/or value, the popularity of the imperial presidency, with its ostentatious exhibitions of power and authority, will continue to hold sway.

 

David T Hofisi is a human rights lawyer and writes in his personal capacity

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[1] “Limited Vision Behind Contemporary African Constitutionalism” is a phrase by H.Kwasi Prempeh and a sub-heading in his paper: “Africa’s “constitutionalism revival”: False start or new dawn?”

[2] See H.Kwasi Prempeh Africa’s “constitutionalism revival”: False start or new dawn?

[3] See Number 1 supra

[4] See the rhetoric of Mwalimu Julius Nyerere: “Development must be considered first…Our question with regard to any matter – even the issue of fundamental freedom – must be, ‘How does this affect the progress of the Development Plan:”

[5] See Number 1 supra

[6] See Number 1 supra

[7] See Number 1 supra.

[8] “In a perfect world what poor countries at the lowest rungs of economic development need is not a multi-party democracy, but in fact a decisive benevolent dictator to push through the reforms required to get the economy moving”  ― Dambisa Moyo, Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa

[9] See Sections 104 and 105 of the Constitution of Zimbabwe

[10]See Sections 143(3) and 109(4) of the Constitution of Zimbabwe

[11] See Number 1 Supra

IN COURTS WE TRUST: JURISTOCRACY AND CITIZEN DISEMPOWERMENT THROUGH EXCESS FAITH IN THE COURTS

In this blog post, I make the claim that insistence on litigation has unduly given prominence to the judicial branch of government at the expense of the representative arms of the State; thereby disempowering the masses.

The putative father of the Constitution, James Madison, thought the legislative branch of government would emerge as the government’s strongest arm;

“In republican government, the legislative authority necessarily predominates.”[1] 

He posited that as the branch of most proximate to the people, coupled with its law making ability, it would emerge the most powerful.[2] However, with the post-World War II emergence of global constitutionalism and its features of written constitutions with declarations of fundamental freedoms, judicial review and rejection of legislative sovereignty, the power of courts, particularly Constitutional Courts, has grown exponentially.[3]

It has long been understood why policy makers would rather delegate policy making authority to the courts thereby allowing for their growing influence. This reduces their own decision making costs and shifts responsibility to institutional apparatus. Further, politicians can rely on the judiciary's apolitical and professional image to gain more support and legitimacy for otherwise controversial and possibly outrageous policy choices.[4] In this way, political decisions are insulated from popular political pressure. This has been the gradual progression from democracy to juristocracy, where more and more decisions are left to and thus made by the least representative branch of government – shielded from the fundamental base of any democratic matrix: the people.

 

However, and particularly in Zimbabwe, there is a similar relationship between citizens and the judiciary. Just like the policy makers, the general populace would rather shift the decision making role to the courts in lieu of demanding it from their elected representatives. The last general election was held further to a court challenge. It was the judiciary which set the date for the election. The decision to outlaw child marriages was made by the judiciary and not the legislative branch. In fact, activists are now advocating for the legislative branch to follow up on the court’s decision. A myriad of issues including ZBC licensing and absence of laws on devolution have been brought to the courts ahead of popular expression or sustained lobbying of representative arms of government.

There are many possible reasons for this phenomenon and it is, indeed, not anomalous for the courts to be called on to resolve controversies. What is remarkable is the extent to which they have been called in Zimbabwe at the expense of other branches of government. People generally have more confidence in the courts due to their professional and apolitical image. Further, legitimacy questions arising from elections have reduced people’s faith in their elected representatives and the political architecture. There is also the scourge of violence that is unleashed on any form of popular expression that is deemed to be against the State. Thus, just as the policy makers would rather that the Courts sanitise any controversial policy measure, the people would rather the Courts reduce the personal risk and political costs of any disapproval from the State through their cloak of legitimacy; everyone can hide behind the adage that the courts have spoken! Thus the politician can remain in power, safe from public pressure whilst the people can also have a binding decision reached whilst safe from police brutality. The courts become the great sanitiser in that scenario.

 

Another reason though, is that of lack of access. Parliament is detached from the people. Demonstrating within a proximity of parliament is actually prohibited. Further, once people elect their representatives, their voice is only heard through committee hearings (which do not need to take their views into account) or public demonstrations (which tend to involve violent confrontations with the police). By contrast, the Slovenian constitution provides for popular initiatives. That is to say, four thousand voters can get the legislature to vote on a proposed legislative initiative whilst forty thousand voters can get a referendum to reject proposed legislation.[5] Other legislatures provide for a process of recall of legislators by voters. In Zimbabwe once the election is done, participation in governance tends to also be over. Similarly, the executive is insulated from the people with no mechanisms for engagement. This leaves only the judiciary as the accessible avenue for redress. 

Thus as other branches of government retreat from the popular political pressures, the judiciary’s power and influence grows. However, since the Judiciary itself is appointed by the executive – this growing influence can be manipulated by the executive by delegating controversial measures to the unelected branch of government (which the populace views with a semblance of legitimacy) as a ploy to keep the masses without a voice and disempowered.

When political parties filed an urgent application for the release of election results in 2008, every other action was halted and strategy suspended until the courts had spoken. This is just one example of how institutional features such as rules of sub judice make the courts particularly disempowering. Any movement which is led by legal practitioners is likely to overstate the role which litigation should play in the democratic process. It is vital to hold all branches of government accountable and to revive their representative function rather than burden one branch of government in the (mistaken) hope that, because of their professional and apolitical outlook, they will always be the ‘good guys.’

 

David T Hofisi is a human rights lawyer and writes in his personal capacity

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[1]See:  http://www.enotes.com/homework-help/from-reading-no-51-federalist-papers-please-198543

[2] See number 1

[3] See Dejonge Matthias,Faculty of Ghent University, Academic Year 2014-2015: Constitutional Courts: Democracy vs. Juristocracy?

[4] See Number 3 at page 25

[5] See also the Constitution of Croatia