A number of sub-Saharan countries have amended their constitutions
over the years. Some changes came at the barrel of a gun. But in recent
years, most have come from democratic processes.
The impetus to change Africa’s constitutions can be traced to both
grass roots pressure and to international politics. Many African
countries gained independence in the 1960s, and their constitutions were
set up with the help of the former colonial powers. In the 1970s, many
African countries alternated between military governments and one-party
Era of change
Constitutional experts say the
most recent era of change came after the fall of the Berlin Wall in
1989 and the collapse of the Soviet Union in 1991.
Yash Ghai of the Nairobi-based Katiba (Constitution) Institute says the
demise of the communist power bloc meant the end of Western support for
anti-communist - and anti-democratic - leaders in Africa in what had
been a proxy war. He says that helped bring an end to the 24-year-rule
of Kenya’s Daniel Arap Moi in 2002.
“With the end of the Cold
War, the U.S. championed democracy, and civil society in Kenya was able
to work with the U.S. Embassy which was in good position to put pressure
on President Moi," said Yash Ghai. "So the interests of the West and of
But some new constitutions
are also the result of domestic politics. That includes a cessation of
conflict, as in the end of apartheid in South Africa in 1994. South
Sudan plans to revise an interim constitution enacted as part of a peace
agreement with the Republic of Sudan signed in 2005.
these and other new constitutions are reached through a series of
negotiations and constitutional assemblies or commissions that include
all segments of society, including opposition groups. The draft is
debated in public and a final version is often submitted for approval in
Other countries simply amend older constitutions over time.
In Tanzania, opposition politicians
are reviewing their independence constitution, which originally
supported a single-party state but was modified over the years to
include multi-party democracy.
“So, the Tanzanian authorities
said in the 1990s most African countries undertook a radical revision of
their constitutions and it’s time now to look at Tanzania’s own
constitution," said Charles Fombad, a member of the African Network of
Constitutional Lawyers and a professor of Comparative Constitutional
Law at the University of Pretoria in South Africa. "Authorities have
said there have been piecemeal changes that could [make the original
constitution] lose its coherence. Now they want to change it so every
provision is looked at to be sure there’s no incoherence.”
Social and political reforms
Experts say not
all social and political reforms need to be added to a constitution.
But Fombad says it is critical that the foundation for reforms be laid
down in the constitution so as to create a legally enforceable
obligation that must be respected.
Typical examples of this are women’s rights and land tenure.
are countries like South Africa, Zimbabwe, Kenya that have had very
serious issues with land tenure," said Fombad. "These [policies] were
inherited during apartheid or during the colonial period. The
constitutions were drafted in such a manner that the land rights of
those who had acquired lands in those days were protected and
entrenched. You cannot change the policy without changing the
Often, as in many francophone countries, the
power to introduce legislation to alter the documents lies with the
president or parliament.
Critics say this typically has resulted in the roll-back of constitutional provisions limiting the head of state to two terms.
In many cases, African leaders have
also diluted the impartiality of the courts and independent
organizations created in part to act as watchdogs on the government.
Grote is a senior research fellow at the Max Planck Institute for
Comparative Public Law and International Law in Heidelberg. He says that
was the case in Kenya five years ago when, under the old constitution,
President Mwai Kibaki appointed all members of what was meant to be an
independent body, the electoral commission.
“When the elections
in December 2007 took place, the commission was quick to confirm that
President Kibaki had been re-elected," said Grote. "Everyone else, the
opposition parties and large parts of the international community,
viewed the election as rigged. Can you expect members of the electoral
commission, who owe their appointment to the president, to be
independently minded when it comes to his survival in office following
the elections? “
Similar situations occur in countries where one
party dominates the presidency, the parliament and the judiciary, thus
curtailing a system of checks and balances.
But African democrats are learning from their mistakes.
countries have borrowed from the South African example of holding the
government accountable to a constitutional court that can hear
complaints and rule against government policies. Changes to the
constitution require a two-thirds majority of the National Assembly and
the support of a majority of the provinces.
Ghai says in Kenya,
Chapter 16 of the country’s 2010 constitution allows citizens to
initiate reforms as long as they do not affect key issues such as the
supremacy of the constitution, the bill of rights and the terms of the
president or the territory of the country.
initiative for constitutional change rests with the government or
parliament," said Ghai. "But in Kenya, we’ve introduced an alternative
where people can get a certain number of signatures trigger off the
process. It is possible for people themselves through petitions to
[propose] an amendment. It could end with a referendum or be presented
Political scientists say a constitution should
not be too easy to change. Otherwise, they say it would be difficult for
democratic institutions to develop and the document could lose public
support. They say that makes it all the more important to take the time
to develop an open and inclusive process for creating a constitution
that can evolve over time.