Constitution-building in Africa

History has seen several waves of constitution-building in the 20th century with an unparalleled boom starting in the 1990s after the fall of the Berlin Wall. And while experts recently announced the end of this boom in new constitutions after the Cold War, the world is witnessing another wave of constitution-building, this time predominately in Africa. Quite prominent are the current dynamics in the Maghreb as a result of the Arab spring. Less visible, but also very vivid are the processes in Sub-Saharan Africa, recently in the Central African Republic, Kenya, Zimbabwe, presently in The Gambia, Somalia, Mali and South Sudan, and prospectively in Botswana, Nigeria, and other countries.

This burst of activity has given rise to a range of new ideas about the nature and purpose of constitutions and constitution-making, constitutional solutions to genuine local problems, the proper role of international and local actors in the constitution-building process as well as the value of having a dedicated implementation process for a newly adopted constitution. Therefore, we continue offering a summer course on constitution building with a focus on Africa building on the experience of nine successful courses organized in the SUN framework between 2013 and 2021.

At its heart, the course intends to tackle complex societal, political and legal problems in constitution-building from an interdisciplinary perspective, informed by field experience. In order to understand and contextualize practitioners’ experiences, we seek to combine different disciplines (mostly comparative law, political science, and socio-legal studies) and perspectives (comparative governmental systems; electoral systems; decentralization; human rights; comparative constitutional law; good governance; etc) to offer new insights on a classic subject of the highest academic and practical relevance.

The course will address the subject from four different angles, all of them related to specific challenges of constitution-building in Africa:

The first one highlights constitutionalism in Africa in general, the different roles and meanings of a constitution, the merits and risks of constitutional borrowing, the role of external/international influence, and the point of public participation in constitution building. Over two weeks we are able to build comparative insights (covering Anglophone and Francophone Africa and also the Maghreb). A mapping exercise and intense exchange with participants allow us to explore cross-country learning and to place regional developments in a broader political and economic context.

The second angle accounts for the fact that new constitutions often follow conflict, and as such, are loaded with the expectation to herald a new era of peace and democracy. Believed to be leaving behind authoritarianism, despotism, or political upheaval, contemporary constitutional processes aspire to become inclusive. Whether the inclusiveness indeed meets the expectations of the people concerned and creates ownership instead of disappointment is worth analyzing. Furthermore, a two-step approach with an interim document at the beginning followed by a permanent solution afterward is gaining momentum in post-conflict peace negotiations. The risks and possibilities of this approach need to be discussed and evaluated. Experiences with several protracted constitutional review processes also require careful critical reflection.

The third angle of the course addresses how constitutional designs respond to competing claims, be they political, religious, ethnic, linguistic. The course will pay special attention to how new African constitutions attempt to accommodate different stakeholders, tame the executive, strengthen checks and balances, aspire to prevent stalemates, and prevent the self-perpetuation of constitutional actors through constitutional review processes. Based on the experiences of previous years, our participants are most interested in constitutional solutions promoting gender equality, social justice, and managing religious diversity. In previous courses these angles were covered most successfully by interactive group projects, seeking to draw out the experiences of practitioners taking part in conflict management. We will continue with this approach this year.

Finally, taking into account the fact that the management of constitutional change and maintenance of constitutional stability are ongoing challenges, the course will explore the issue of constitutional implementation and review as part of the constitutional building process.  As before, we expect a nuanced comparative approach that, drawing on the experience of course participants, allows us to develop a better understanding of the ongoing process of constitution building.