Why is Constitution and Constitutionalism in Africa Such a Holy Grail?

Today August the 27th 2020, Kenyans celebrate 10 years since the promulgation of the constitution, joining a growing list of African Countries that have endeavoured to implement democratic and liberal constitutional reforms over the last two decades. The constitution which is hailed as the most progressive document not only in Africa, but the entire world, was a refreshing respite to many Kenyans and a new window of collective optimism to peek through a gilded promising future of justice, equality and the rule of law. Breaking away from the harrowing memories and barnacles of long drawn history of a stifling single-party system, rampant corruption and repressive regime the country had been subjected to under the leadership of the second President of Kenya the late Daniel Toroitich Arap Moi.

But as most Kenyans awoke to a numbingly cold morning today, so did many of their hearts as well, welcome the constitutional historical moment with a somewhat frosty reception and jaded mixed feelings as far as the decade is concerned. Harking back to the last ten years, undeniably much has been accomplished through the constitution, especially since the adoption of devolved system of government which is still shaking into place in most part of the Country. Proximate leadership and development, informed decisions through public participation citizenry. Enhancement of self-governance. Safeguarding interests and rights of the marginalized and minorities. Equitable distribution of resources and so on and so forth. These are all commendable and salutary efforts from the government I must say.

But, dreams, ambitions and aspirations of majority of Kenyans, that had been envisioned by the framers and drafters of the constitution, are unfortunately yet to be realized because of the galling lack of political will to implement the constitution. The most consternating thing, is that even the chief framer and architect of Kenya’s constitution , a constitutional lawyer and touted as the “father of the current constitution” had this to say as his opening remarks in one of Kenya’s local daily:

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“’We should not rejoice and celebrate the 10th anniversary of the Constitution with great enthusiasm. We have no reason to believe it will now generate better results than in the last 10 years, given the hands into which it has fallen”.

– Prof Yash Pal Ghai .

Quite a chilling statement from one of Africa’s progressive thinker, I muse.

President Uhuru Kenyatta spoke quite movingly and effusively in regard to the 10th anniversary of the constitution, reiterating and reminding Kenyans that 10 years later, the moment to improve the constitution is now. He further implored Kenyans not to succumb to the paralysis of the constitutional rigidity, but must treat it as a living document that must constantly adjust to the emerging realities. I totally agree with him on that
note that the constitution should be nimble, agile and a malleable document that should conform to the ever-changing realities of a country.

The abiding question remains, what happens to a document that has not been fully implemented over the years for lack of political good will? Do you have the lordly right whatsoever to call it rigid? How would you characterize it as rigid if it has not fully known the lay of the land through effective implementation? Why has there been a slow uptake and glacial slowness in implementing it over the decade with a fully constituted constitution implementation parliamentary committee? Is this the providential time to change the document when the general election is around the corner ? Why are you realizing at this moment that the presidential system and its winner takes all mantra does not snugly fit the country’s governance structure?

It’s quite interesting to note, nearly 30 countries in Africa have attempted to amend the constitution especially the removal of term limits since 1998 and this amazingly happened when the countries were girding for elections. Lately we have duly observed this trend creeping back to the African continent. Rwanda, Uganda, and Burundi effortlessly come to mind as countries from East Africa which recently amended their constitution to do away with presidential term limits. Egypt has extended it presidential term limit to six years through a referendum and President Sisi is eligible for reelection in 2024, so ideally, he has enough room to swing a cat until 2030.
I had the good fortune recently of hosting Dr Miria Matembe a former member of the 7th parliament in Uganda and the author of the book titled The Struggle For Freedom & Democracy Betrayed: Memoirs Of Miria Matembe As An Insider In Museveni’s Government – quite an interesting read I must say – in a virtual debate on Presidential term limit and consolidating democracy in Africa . She made quite an interesting comment that should act as a pause giver for us.

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“African Presidents love the constitution but they don’t love constitutionalism.”

Debarl Inea is a communication consultant at Sapphire Communications Ltd.

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