Constitution-building in Africa

History has seen several waves of constitution-making since the start of 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, constitution-making and remaking have continued, particularly in Africa. In a number of the countries affected by the Arab Spring, constitutional arrangements remain unsettled and contested; Sudan and South Sudan are struggling to start constitution-making processes; and elsewhere in Africa including Somalia, The Gambia, Kenya, and Botswana, constitution-making is high on the political agenda.  This activity and struggles to bring constitution-making processes to successful conclusions has given rise to a range of new ideas about the nature and purpose of constitutions and constitution-making, constitutional solutions tailored to 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 are again offering a summer course on constitution building with a focus on Africa that engages with these problems, building on the experience of nine successful courses organized annually in the SUN framework from 2013.

At its core, the course intends to tackle complex social, 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 and political science) and perspectives (comparative governmental systems; electoral systems; decentralization; human rights; comparative constitutional law; good governance; etc.) to offer new insights on a subject of the highest academic and practical relevance.

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

• The first 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 purpose of public participation in constitution building. Running over two weeks, the course permits comparative insight (covering Anglophone and Francophone Africa and the Maghreb), an element that has been requested by our faculty and welcomed by participants in the past. An exercise mapping constitution-making processes in a range of African countries and intense exchange with participants permit cross-country learning and enable us to place regional developments in a broader political and economic context.
• The second angle accounts for the fact that new constitutions often follow conflict which has particular implications for the process of constitution building. In post-conflict contexts, constitution-making is accompanied by high expectations of a new era of peace and democracy, leaving authoritarianism, despotism, and political upheaval behind. Post-conflict constitutions are often deals, however, and managing expectations in this context is difficult. Despite the existence of (and need for) elite deals, post-conflict constitution-making processes usually aspire to be inclusive. Whether the inclusiveness indeed ensures that the expectations of the people are met and creates ownership instead of disappointment is worth analyzing. In addition, a two-step approach with an interim document followed by a permanent solution is increasingly common in post-conflict peace negotiations. The course will explore the risks and opportunities of this approach. Finally, in the context of post-conflict constitution-making, the course will reflect on experiences with several protracted constitutional review processes in Africa.
• The third angle of the course addresses how constitutional design can (or attempts to) respond to specific (and sometimes competing) interests and needs, be they political, religious, ethnic, or linguistic. The course will pay special attention to how new African constitutions attempt to accommodate different stakeholders, tame the executive, strengthen checks and balances, prevent stalemates, and prevent the self-perpetuation of constitutional actors through constitutional review processes. The experience of previous years shows that our participants are particularly interested in constitutional solutions promoting gender equality and social justice and managing religious diversity. We will also consider the way climate change can be (and is being) addressed in constitution-making processes. As in previous courses, we will cover these issues through interactive group projects, that draw out the experience of practitioners taking part in conflict management.
• Finally, taking into account the fact that the management of constitutional change and maintenance of constitutional stability are ongoing challenges, the course will explore constitutional implementation and review. Again, drawing on the experience of the past decades and of participants in the course, we hope to shed light on key lessons and explore new approaches.