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The primacy of power and limited vision within contemporary African Constitutionalism
13/09/2016 00:00:00
by David T Hofisi
 
David T Hofisi is a human rights lawyer
 
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In the last article, 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.

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.” 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 centralised administration, subordinate courts, compliant chiefs with no organized opposition party,” 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.

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.” 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.”



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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. 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.

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.



Principals to the Inclusive Government who overwhelmingly endorsed the Constitutional draft

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 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 ). 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.”

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).

http://3.bp.blogspot.com/-A4W6jAmri5w/V9fpA43aO8I/AAAAAAAAA5Q/nQQTKUvCEkUkH2NnwyZ_rzADRer2Ukg7wCK4B/s640/hre%2B10.jpg

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 legitimised in the broader context of fighting an (equally) evil regime.


Agent Smith replicating himself throughout the Matrix in the Matrix trilogy

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.

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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