Vol. 14 No.12 (December 2004), pp.964-968

COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH: AN EASTERN AND SOUTHERN AFRICAN PERSPECTIVE, by Johan Hatchard, Muna Ndulo, and Peter Slinn.  Cambridge: Cambridge University Press, 2004.  388pp.  Hardback.  £65.00 / $120.00.  ISBN: 0-521-58464-7. 

Reviewed by James B. Kelly, Department of Political Science, Concordia University. Email: james.kelly@concordia.ca.

Johan Hatchard, Muna Ndulo, and Peter Slinn begin COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH by acknowledging that there are pitfalls in writing a book that considers the approach to constitutionalism in the 11 countries designated as Eastern and Southern African (ESA) states.  For one, the concept of “constitutionalism” is firmly rooted in western liberal democratic tradition and has been criticized by African lawyers and academics as minimalist and a foreign concept with “no place in African tradition, history or practice” (p.2). A second problem involves articulating an appropriate analytical framework to fairly compare approaches to constitutionalism among ESA states.

In the opening pages, the authors deftly address both pitfalls by adopting a “good governance” analytical framework to assess the initial constitutions of the ESA, entrenched during the transition from British colonies to self-governing members of the Commonwealth.  Perhaps more importantly, the authors draw lessons from the inability of “independence constitutions” to firmly establish rule of law and to facilitate both societal cohesion and economic sustainability.  By good governance, the authors single out a particular challenge facing constitutionalism in the ESA states: “the extent to which the exercise of arbitrary power may be limited by constitutional and other means so as to ensure the good government of the people” (p.2).  In this sense, the framework of good governance is used to understand the concerted efforts at constitution-building by ESA states in the 1990s and to assess whether these states have approached this ideal.  This is a significant enterprise, as Hatchard, Ndulo, and Slinn see good governance as central to sustainable development and the creation of a “capable state” that is characterized by transparency, accountability, law and order and the respect for human rights (p.9).  In short, the failure to ensure capable states has undermined good governance in ESA states, and this book seeks to provide a blue-print for the appropriate institutional structures needed if this ideal is to be sustained in the post-1991 period following the Harare Commonwealth Declaration.

Before this argument is assessed, it is essential to provide an overview of the book and the objectives sought.  The book focuses on the Anglophone Commonwealth countries comprised of Botswana, Kenya, Lesotho, Malawi, Namibia, South Africa, Swaziland, [*965] Tanzania, Uganda, Zambia and Zimbabwe and the lessons that can be derived from their attempts to ensure durable constitutional orders.  As a caution, however, the book does not provide a comprehensive analysis of the constitutional regimes in each country but attempts to extract lessons from the failures by ESA states to facilitate capable governments through enduring constitutions.  This is both the strength and the weakness of the book – it outlines the preconditions for stable constitutionalism in ESA states but does not provide an assessment of whether any of the countries, save South Africa, can realistically achieve good governance in the foreseeable future.  While I acknowledge this is not the authors’ objective, as they sought to provide both positive and negative examples, the book would have benefited from an assessment whether the conditions exist in any of the ESA states to ensure both capable government and good governance. 

A central argument advanced is the notion that the1991 Harare Commonwealth Declaration, which committed the Commonwealth Heads of Government to democracy, rule of law and respect for human rights – in short, good governance – is a turning point that has structured the post-independence constitutions of the ESA states (p.10).  In important respects, this has become the constitutional sanction imposed against states that deviate from these principles, as it has been the justification for expulsion from the Commonwealth as in the case of Zimbabwe in 2002, and it has become the litmus test for admission.  The Harare Commonwealth Declaration has become, as the authors contend, the most important indication of attempts to ensure enduring constitutionalism in the ESA states.

The first two chapters involve the failure of post-independence constitutions to facilitate democratic governance.  These constitutions quickly saw multi-party parliamentary democracies replaced by one-party states with executive power concentrated in the presidency (p.20).  Though the authors acknowledge that independence constitutions were not indigenous, as the Colonial Office in Whitehall was largely responsible for their drafting, efforts were made to consult independence leaders on basic structures, most notably regarding the Head of State (p.17).   In a telling passage borrowed from Slinn, the authors conclude that post-colonial constitutions failed to work “not so much because of a failure by Africans to learn the lesson of parliamentary government: rather the lesson of authoritative colonial rule was taught and learnt too well” (p.21).  The winds of change began in the 1990s when several ESA constitutions outlawed one party states, such as Zambia, Lesotho and Malawi, and provided for free and fair elections, Human Rights Commissions and Bills of Rights.  In effect, the institutional structures for good governance became part of the constitutional discourse.  The challenge, therefore, is to sustain this discourse by civil society through vibrant institutions.

The remainder of the book, Chapters 3 to 13, assess the institutional structures essential to democratic governance.  In general, there are two pressing objectives identified by the authors as necessary conditions: devising effective institutions to promote accountability, transparency and representative [*966] democracy (Chapters 3 to 10) and containing both military coups (Chapter 11) and the abuse of emergency powers by the political executive (Chapter 12).  The most significant goal identified is the need for popular and lasting national constitutions (Chapter 3).  The challenge is to create a constitutional process free from political manipulation by those in power, as the authors rightly identify (p.34).  A good model is provided by Uganda, where the National Resistance Movement, upon attaining power, established a 21 member Constitutional Commission that incorporated the public and created a draft constitution (p.20).  This constitution was sent to a popularly elected constitutional assembly that enacted the 1995 Constitution of Uganda.  The lesson, therefore, is to create an independent Constitutional Commission with a specific mandate to create a governing document (p.30). 

The next challenge considered in Chapter 4 is to protect constitutions from regressive amendment by the political executive.  The clearest example is Zimbabwe where constitutional amendment effectively transformed the political system into a one-party state with an executive dictatorship (p.47).  This is generally the result of a flawed process, where most ESA constitutions provide for amendment by two-thirds parliamentary majority.  This has proved to be a limited constraint in one-party states and the most series limitation that still plagues post-1991 constitutions.  To address this, the authors contend that Specially Enhanced Parliament Majority (SEPM) should not be the method of constitutional amendment because of the potential for abuse.

Chapters 5 to 10 outline the institutional structures and arrangements necessary for democratic accountability to prevent arbitrary power from undermining the rule of law and constitutionalism.  Interestingly, the lessons are the same for most Westminster parliamentary democracies: the need to provide effective checks on the political executive to prevent an undue concentration of power at the centre (Chapter 5); the need to create efficient and representative political parties that compete in free and fair elections monitored by independent Electoral Commissions (Chapter 6); the establishment of effective parliamentary institutions to ensure that the Westminster principle of responsible government is vibrant and a sufficient check on arbitrary power (Chapter 7); the creation of an independent judiciary that can act as the guardian of the constitution and protect this document against parliamentary abuse and arbitrary action by the executive (Chapter 8); the devolution of power to local communities to promote a “balance of power” and to deepen the principle of good governance (Chapter 9); and the development of oversight bodies such as Human Rights Commission and Ombudsperson to encourage political actors and institutions to act consistently with the Harare Commonwealth Declaration (Chapter 10).

The substantive sections of the book, therefore, focus upon institution building, with specific objectives: to create a series of intra-parliamentary checks on the political executive to prevent arbitrary power from undermining constitutionalism, and failing this, to create extra-parliamentary bodies such as Human Rights [*967] Commissions, Ombudspersons, Electoral Commissions and Supreme Courts that can act as guardian of constitutionalism if arbitrary power cannot be checked through parliamentary institutions.  The value of this book, therefore, is found in the blue-print for constitutionalism provided for ESA states that intend to implement the 1991 Harare Commonwealth Declaration.

Chapters 11 and 12 then address issues of institutional containment, as they focus on the need to contain the military and prevent this institution from usurping the constitutional order.  This is perhaps the most interesting part of the book, as the authors contend that military government results from failure to establish capable civilian states—in effect, military coups are the result of bad governance.  Further, it is contended that the post-1991 constitutions are better equipped to prevent the reoccurrence of military coups as most contain explicit clauses that protect “civilian supremacy” and state that actions in violation of constitutional principles are not legitimate (p.252).  These constitutions, therefore, are durable; whereas military regimes, if established by coups, are temporary, illegal and unconstitutional.

The real challenge is to reconcile highly institutionalized military structures with civil institutions, which generally pale in comparison.  The solution is to make the military accountable to the legislature and to require parliamentary oversight of military spending and appointment to senior positions in the command structure (pp.252-256).  Beyond establishing civilian supremacy through democratic control of the military, there is a need to deal with problems that have occurred in the past through processes such as the Truth and Reconciliation Committee, as in the case of South Africa (p.261).  This parliamentary oversight is extended to declarations of emergency situations (Chapter 12), as the authors assert that the abuse of such declarations in the pre-1991 ESA states effectively deterred efficient and sustainable political institutions from developing (pp.277-279).  Similar to the process of constitutional amendment, the suspension of constitutional provisions in response to perceived instability should not be the prerogative of the political executive or a parliament controlled by the political executive but should be reviewable by independent institutions such as the judiciary (p.281).

Before turning to a brief critique, I want to reiterate that this is a worthy study that accomplishes its objectives; it is well organized, written and very informative.  As a non-specialist, I was struck by the similarities in the institutional challenges facing ESA states that exist in advanced Westminster democracies, such as Canada, Britain, Australia and New Zealand—the need to ensure that political institutions remain representative, that political executives are accountable, and the general challenge of having responsible government as an effective principle.  Further, all struggle with the appropriate role of the judiciary in a parliamentary system and the limits of the courts as guardian of the constitution.  Indeed, the challenges facing the ESA state, save concern with the military, are common, and the lessons provided by the authors are generalizable.

I have two primary criticisms—case selection, and the need to provide an [*968] assessment of the potential for good governance in the ESA states.  The only justification provided for selection of the 11 countries included in the analysis is that they are Anglophone members of the Commonwealth.  The difficulty with this approach is there are several outliers in the group: countries that provide negative lessons in the case of Zimbabwe, and those that provide positive lessons for durable constitutions, such as South Africa in the post-apartheid era.  It would have been useful to group the 11 countries into categories of compliance with the 1991 Harare Commonwealth Declaration to derive more specific understanding and recommendations.  While this is a minor critique, the ESA designation ensures generalizable lessons but ones that may not be instructive to the particular challenges facing a specific ESA state such as Kenya or Swaziland in the search for durable constitutionalism.

My final critique involves the authors’ failure to provide an assessment of the potential for constitutional governance in ESA states.  Although I do not want to critique the book for what it did not provide, I believe this would have been a suitable way to end this worthwhile study.  The concluding chapter provides a succinct summary of lessons derived from experiences of ESA states, a more instructive approach would have assessed the potential for constitutional governance in specific states.  In effect, what countries are approaching the 1991 Harare Commonwealth Declaration?  This is an important question that is left unanswered but one that the reader will invariably ask.

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© Copyright 2004 by the author, James B. Kelly.