The rise of illiberal legality (democratic decay) in Africa: Quest for an international constitutional court

The elite, like the colonial state, which they inherited, has grown apart from the society. Increasingly the state and the elite who control the state, have become predators of the society.

~Ade-Ajayi, J.F.1992

Introduction

Democracy can be defined as a government of the people, by the people, and for the people.1 Crucial to this study are three different theories of democracies, that is: elite theory which enunciates that masses are incapable of making rational decisions on major national issues; the pluralist theory which states that no single group should dominate politics but instead organized groups should compete with each other to influence policy decisions hence promoting inclusiveness; and participatory theory which emphasizes the broad participation of people in politics in the sense that citizens do have the potential to influence policy decisions, but do not make policy decisions.2

Illiberal legality is a system based on popular will where free elections are held frequently, but lacks separation of powers and rights to check majority will. Illiberal regimes often pretend to take over power through democratic means but ignore constitutional limits when they assume power, resulting to centralized authoritarian regimes. The constitutions and legal frameworks in these countries permit liberal democracy, imbibing the attributes of representative democracy with the hope of enhancing and facilitating national progress and development but in practice, these countries are no more than illiberal democracies.3 Solutions to this problem are hard to find because it is possible for authoritarians to lawfully and constitutionally use the mechanisms of constitutional change to make a state significantly less democratic than it was before.4 The puzzle now is how to spot and stop democracy decay before it is too late.5 This article gives insights into how illiberal democracies have proliferated in Africa and the need for an international constitutional court to preserve our democracies from decaying.

The rise of illiberal legality in Africa

There has been a rise of illiberal regimes across the world particularly in Africa. As of today, Africa is a hotbed of illiberal democracy and has been particularly since post- colonialism. Scholars have argued that African countries have generally not enjoyed complete democracy despite the periodic conduct of elections in many African countries. Elections in Africa are pre-determined in favour of the incumbents and characterized by corruption and intolerance of dissenting laws. Rupert Emerson rightly predicted democracy in Africa would bleed and die “on the altars of national consolidation and social reconstruction”. 6

Most of the local governments in Africa which replaced the European governments after colonization were weak and inept in governing their people effectively. This made many regimes to quickly turn to authoritarian rule as their colonial predecessors.7 In 1990, when a wave of democratization and constitutional reforms swept across much of Africa, hopes were high that Africans would begin to enjoy the freedoms afforded to citizens living in the former colonial powers.8 However, this did not last. Currently, many Africans live under fully or partially authoritarian states. Many of the democratically elected leaders have established dynasties (some even looking to appoint their sons as their successors) as a process to subvert truly representative government. These leaders do not see themselves as statesmen who are expected to develop a keen awareness of collective responsibility in the long term, but are like colonial administrators, overseers who are in power to ensure that the people adjust to the structure of oppression and exploitation which they manage.9 They have veneered their eviscerated democracies with regular elections because liberal democracy in these countries is seen as being limiting or threatening to the augmentation and preservation of their power interests. Presidential term limits have been frequently circumvented through constitutional coups in order to keep themselves in indefinite power. Having relatively weak institutions in illiberal states has facilitated the incumbents to manipulate constitutions.10 A recent example is the allegations by Fafi11 MP, Salah Yakub, where he revealed that a section of UDA MPs (the governing political party in Kenya) plan to amend the Constitution so as to remove the two-term limit on the presidency

in Kenya. UDA has however distanced itself from those remarks. The two-term limit came into effect ahead of the 1993 elections following the repeal of Section 2A of the previous Constitution of Kenya and it was maintained by the 2010 Constitution of Kenya in Article 142. Should such constitutional amendment happen, Kenya could be next in line to becoming an illiberal State.

‘During the COVID-19 pandemic, illiberal heads of states could be seen using control methods for stemming the outbreak of the virus as cover to consolidate and extend their control.12 They used the pandemic as a justification to stop demonstration, muzzle journalists, and stifle dissent.13 The 2021 report from Freedom House showed that the number of African countries rated “not free” had proliferated from a low of fourteen in 2006 and 2008 to twenty in 2021.14 Since 1950, International Centre for Investigative Reporting (ICIR) has tracked 494 attempted coups worldwide, with 222 of them taking place in Africa.

Of these attempted overthrows, 38% were successful. The coup d’etat in Burkina Faso is a recent example, which took place on 30th September 2022, removing Interim President Paul-Henry Sandaogo Damiba over his inability to deal with the country’s Islamic insurgency. Damiba had also come to power via a coup just eight months earlier.15 The flawed democracy and surfeit of coups that currently characterizes Burkina Faso’s governance for the last two years exemplify a widespread pattern of illiberalism and violation of freedoms in many countries in Africa.

Africa, despite having several regional Organisations, only the Economic Community of West African States (ECOWAS) has devoted its energy and resources to defending democracy in West Africa. The Economic Community of Central African States (ECCAS) is stocked with autocrats and East African Community (EAC) has been weak to the point of risking irrelevance.16 Africa’s youthful population and the public across African States have been agitating for constitutional reforms having  been inspired by the internet and social media to become politically active.17 However, their clamors for constitutional reforms have frequently been met with a truculent reaction from their governments. Digital repression has also become commonplace, especially around elections.18 The failure to enforce liberal democracy in Africa has had a negative effect on both human and material development. This has been facilitated and enabled by weak institutions of government. The failure of regional organizations and national frameworks to enforce liberal democracy, which is a fundamental of a constitution, calls for the adoption of a different approach, that is, the establishment of an international constitutional court.

The need for an international constitutional court

Constitutional court is a specialized court with jurisdiction over constitutional matters. State heads across the world, particularly in Africa are struggling to preserve their influence, even beyond death, by instituting regimes

that are more repressive than those established by their predecessors.19 One of the potential remedies to this problem is the creation of an international legal framework modelled after the International Court of Justice, and the International Criminal Court whose role is to rule on the legality of elections in any country, that is, the establishment of an International Constitutional Court.20 This court is needed now more than ever at a time when democracy is decaying precipitously in Africa and so is faith in domestic frameworks and institutions.21

The idea for an International Constitutional Court is attributed to an essay by Mohamed Moncef ’s on Liberation in 1999.22 Mohamed raised the awareness on what was happening around the world: authoritarian states attacking

democracy and the rule of law, violating inalienable rights, holding rigged elections to prove themselves a veneer of legitimacy, and reforming the constitution to consolidate their power and to harm their opponents.23 He therefore recommended for the establishment of an International Constitutional Court whose role will be to protect democracy across the world. In 2011, Mohamed convened and chaired an Ad Hoc Committee for the Establishment of an International Constitutional Court, which issued an impressive report explaining why and how to create the court.24 The court is to have two principal functions: giving advice and resolving disputes.25 In its advisory function, the court would be authorized to give advice on texts or draft texts related to democracy and human rights at the request of governments, political parties, professional groups, NGOs among other groups and institutions.26 In its dispute-resolution function, the court is to rule on what the report defines as “serious violations of democratic principles and democratic conditions for elections.27 The court may be petitioned only after the complaint has been evaluated through all available domestic avenues.28 The judgement from the court will be binding on the State implicated in the dispute.29 According to the Committee, the impetus for an International Constitutional Court is two-fold: States have an obligation to respect principle and rules relating to democracy, to the rule of law and to hold periodic, competitive and genuine elections and states should be held accountable for how well or poorly they fulfill that obligation; the second impetus derives from the first.30 However, this idea can be deemed as contravening the UN Charter principle of non-interference in matters which are within the domestic jurisdiction of member states. Therefore, one can argue that states themselves, acting in their own sovereignty, will recognize the powers of the new court, by ratifying the set of international legal rules that regulates the establishment and functions of the new judicial entity thus circumventing the notion of violation of State’s sovereignty.

Richard31 discusses five principles for building this international court:

1. Internationality- the court must be housed in an international organization whose member states are all the countries of the world;

2. Inclusivity- this must include democracies, autocracies, and others in between. Even if autocracies are unlikely to abide by Court rulings, they must be included within the court’s jurisdiction;

3. Representatives- the judges of the Court must represent the rich diversity of the peoples of the world, from regions to legal traditions to systems of governance and beyond;

4. Independence- the Court must be independent and be seen as independent;

5. Advice- the function of the Court is to give non-binding advice through advisory rulings, not to issue binding rules that are likely to be both unenforceable and disregarded.32

With the democracy decay on the rise in Africa and the lax of regional organisations and national frameworks to address the problem, the world needs to make Mohamed’s vision a reality. Therefore, the idea of an International Constitutional Court should not be rejected without thinking about how and whether it would work.

However, despite the plausible idea of establishing the Court, there are several difficulties and challenges that are likely to stand in the way of implementing the proposal. The most obvious challenge is that turning this idea into a legal reality will require great effort and co-operation between states. This is however, quite difficult to achieve due to the current circumstances regionally and internationally that would undermine any effort for securing such an agreement.33 Another major challenge that faces the smooth establishment of the court is how to convince states to give up, to a certain extent, their sovereignty in determining and regulating constitutional rights, to an international body established under the United Nations.34 Realists like Morgenthau and Kenneth Waltz contend that states which subscribe to realism, abide by international law only when it is not inconsistent with their quest for power and national security interests.35 If these laws are seen to be in conflict with their power interests, they violate them.36

Conclusion

Africa is yet to fully realize the potential of democracy and constitutionalism thus there is need to reconstruct Africa’s democracy in a manner that can empower its people in realizing their human potential in a significant manner, and the most plausible way is by establishing an International Constitutional Court. However, the implementation of this idea is not anticipated to be a walk in the park.

Effective efforts ought to be made by the public and relevant institutions to convince governmental states of the feasibility of this Court in advancing the rights and freedoms which remain theoretically stated in the constitution.37 Active participation by the people is desirable to curb the continued widespread of illiberal democracies influenced by elite theory of democracy in Africa. In a South African case, Doctors for Life International v Speaker of the National Assembly and others38, Ngcobo, J who delivered the leading majority judgment spoke to the participation of the public in law making process and importance thereof as follows:

The international right to political participation encompasses a general right to participate in the conduct of public affairs and a more specific right to vote and/or be elected into public office… The international right to political participation reflects a shared notion that a nation’s sovereign authority  is one that belongs to its citizens, who themselves should participate in government, though their participation may vary in degree.39

Regional organizations also ought to wake up and become fora for change. Africa desires strong and sustainable democracy. Politicians and citizens must play by the rules.

The author is a final year law student at Jomo Kenyatta University-Karen Campus. His research interests include but are not limited to public international law, administrative law, intellectual property law, company and tax law. He can be reached at adakidexter@gmail.com

1President Abraham Lincoln 1963.

2Abiodun O. Africa: A Content on the Edge, from Skewed Elections to Illiberal Democracies, International Journal of Social Science Research, ISNN 2327-5510, 2019, Vol. 7, No. 1, Available at http://ijssr.macrothink.org. (Accessed on October 25, 2022).

3Ibid.

4David Landau, Abusive Constitutionalism,47 U.C David L. REV. 189, 200 (2013).

5See Kim Lane, Autocratic Legalism, 85 U.C. L. REV545 (2018).

6Rupert E. From Empire to Nation: The Rise of Self-Assertion of Asian and African People, 1960 Cambridge: Harvad University Press.

7Charles R. Is Democracy a Retreat in Africa? African Program, 2022.

8Charles M. Fombad, Democracy, Elections and Constituionalism in Africa: Setting the scene, 2021. Available at https://doi.org/10.1093/oso/9780192894779.003.0002.

9Ibid note 2, See also Joseph K. “Oppressor or Liberator?” African Event. No24 (2000).

10John Mukum Mbaku, Threats to Democracy in Africa: The rise of Constitutional Coup, 2020.

11Fafi Constituency is an electoral constituency in Garrisa, Kenya.

12See, Charles R. Is Democracy in Retreat in Africa? March 2022, note 7; UN Secretary General earlier las year warned that autocrats were using the pandemic as a pretext to crush dissent, criminalize basic freedoms and curtail the activities of non-governmental organizations.

13Ibid.

14Sarah R. and Amy S. Freedom in the World 2021: Democracy Under Siege, Available at https://freedomhouse.org/report/freedom-world/2021/democracy-under-siege (Accessed on 28th Oct 2022)

15Available at https://en.m.wikipedia.org/wiki/September_2022_Burkina_Faso_coup_d%C3%A9tat Accessed on 28th Oct. 2022.

16See John Mokum Mbatu, note 10.

17Ibid.

18Ibid.

19Laith K. N., Towards the Establishment of an International Constitutional Court, ICL Journal, Vol 10, 2016.

20Ibid.

21Richard A., Does the World Need an International Constitutional Court? 2022. See also Yascha M. and Roberto S., This is How Democracy Dies, The Atlantic, 2020. 22Moncef Marzouki, Une Structure Judiciaire Supranationale et Independante pourrait agir enc as de scrutins Truques et Rappeler les Etas au Respect des Libertes: Une Cour Mondiale de la Democratie, Liberation, Nov 1999. Available at https://www.liberation.fr/tribune/1999/11/08/une-structure-judiciaire-supranationale-et-independante- pourrait-agir-en-cas-de-scrutins-truques-et-290047. (Accessed on 29th Oct. 2022).

23See Richard A. note 21.

24Ad Hoc Committee for the Establishment of an International Constitutional Court, Project of the Establishment of an International Constitutional Court (2013). 25Id.

26Id.

27Id.

28Id.

29Id.

30Id.

31See Richard A. note 21.

32Ibid.

33See Laith K. N. note 19.

34Ibid.

35Fako J. L. Challenges of Constitutionalism in Africa: Focus on Military Interventions in Three Countries in the 1900s, ROSAS Vol. 5 No. 1 and 2. See also Morgenthau J. Politics Among Nations: The Struggle for Power and Peace, 4th ed., New York, 1967.

36Ibid.

37See Laith K.N., note 19.

38(CCT12/05) [2006] ZACC 11; 2006 (12) BCRL 1399 (CC); 2006 (6) SA 416 (CC).

39Ibid.

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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