Constitutionalism and the rule of law The various CRRs suggest that this is a widespread problem. While commending the progress made and the holding of elections, they document numerous abuses. The Nigeria CRR reports that formal laws and institutions are frequently subordinated to the will of an ‗oligarchy‘ or ‗big men‘ and the patronage they dispense.284 In Rwanda, political parties find it difficult to operate freely.285 The Burkina Faso and Zambia CRRs report allegations of voter fraud in elections.286 The Uganda CRR records doubts about the impartiality of the electoral commission.287 A number of countries also report political and election-related violence, as well as allegations of partisanship on the part of the security forces.288 The Ethiopia CRR, for example, refers to the aftermath of the 2005 elections in that country, and the ‗government‘s brutal crackdown on opposition supporters‘.289 Constitutionalism implies respecting and adhering to a country‘s constitution and limits to state and government powers, establishing the parameters within which citizens‘ rights are predictably secured. The objective is to prevent abuse by any part of the system, and to ensure that power is exercised within the limits prescribed by law. To achieve this, power is formally distributed throughout the political system, so as to create a system of checks and balances. The classic formulation is that power is divided between the legislative branch, the executive and the judiciary, with each managing its own affairs and acting as a brake on the others. The value of constitutionalism is spelt out in some of the CRRs, both for its intrinsic value as well as for its implications for development. The Ghana CRR notes:296 The state of political parties looms large in understanding problems confronting Africa‘s democratic trajectory. Several CRRs express concern at the narrow sectarian agendas that some parties push.290 In Uganda, the ruling party tends to regard the opposition as ‗rebels‘. 291 Others refer to vicious intra-party conflict, which also undermines democratic culture.292 The South Africa CRR discusses a trio of issues that have been widely held to have undermined the link between voters and representatives. It has adopted a closed list proportional representation system, which vests most power in the hands of political parties – voters may only vote for a party (outside municipal elections), and cannot call errant MPs to account.293 Finally, there exists no requirement that parties disclose their funding, thereby leaving open the space for illicit influence, both foreign and domestic.294 The Uganda CRR remarks: ‗The fragility of pluralistic politics poses a big challenge to building a democratic culture and practices, in particular harmonious inter-party relations and credible elections. The dominance of the executive over the legislature undermines the oversight of the latter over the former.‘295 284 285 286 287 288 289 290 291 292 293 294 295 The supremacy of the Constitution and entrenchment of the rule of law are the basic foundations on which all the institutions of governance, the private sector and civil society are grounded. The constitution and the rule of law offer protection of individual life; security of property; sanctity of contracts; protection from the government‘s arbitrariness or abuse of power; and the assurance that one can enjoy the fruits of one‘s labour. Without constitutionalism and the rule of law, no one will venture into productive and creative activities, or create wealth and employment and thereby promote human development and the alleviation of poverty. The CRRs present a mixed picture of constitutionalism on the continent. In some countries, such as Benin, Ghana, Mauritius and South Africa, constitutionalism is generally respected and guarantees a range of rights.297 Particularly high praise is accorded to Mauritius, with its CRR commenting on the respect it has shown for the constitution and the independence of its democratic institutions.298 In others, the CRRs often find the continuing dominance of executives.299 Thus, the Zambia CRR remarks: ‗Constitutionalism, the separation of powers, the institution of checks and balances and the rule of law are therefore questionable in Zambia.‘300 Moreover, a failure to exercise restraint on the executive can breed a sense of impunity, as Nigeria CRR, pp. 51, 93. Rwanda CRR, p. 37. Burkina Faso CRR, p. 89; Zambia CRR, p. 68. Uganda CRR, p. 61. Nigeria CRR, p. 100; Lesotho CRR, pp. 52-53; Kenya CRR, p. 69; Nigeria CRR, p. 113. Ethiopia CRR, p. 60. Benin CRR, p. 75-76; Burkina Faso CRR, p. 97; Kenya CRR, p. 69. Uganda CRR, p. 63. Kenya CRR, p. 70; Nigeria CRR, p. 92. South Africa CRR, p. 85-86. South Africa CRR, p. 86. Uganda CRR, p. 41. 296 297 298 299 300 57 Ghana CRR, p. 21. Benin CRR, p. 86; Ghana CRR, p. 25; Mauritius CRR, p. 95; South Africa CRR, pp. 81–82, 86–87. Mauritius CRR, p. 95. Mozambique CRR, p. 111; Nigeria CRR, p. 64; Tanzania CRR, p. 55; Zambia CRR, p. 31. Zambia CRR, p. 31.