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Recent Developments in the Public Law of Francophone African States

Published online by Cambridge University Press:  28 July 2009

Filip Reyntjens
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Extract

The origin of the initial African constitutions is easy to establish. While the former British territories “received” their Westminster-type constitutions negotiated during the Lancaster House conferences, the former French territories, except Guinea, became independent under constitutions drawing heavily upon the constitution of the Fifth French Republic, of which they were virtual copies. Among the countries formerly under Belgian rule, the Congo (Zaïre) was the only one attaining independence with a constitution, the Loi fondamentale of 1960 which was an Act of the Belgian Parliament.

Therefore, initially the degree of homogeneity was fairly large; there were basically three types of constitutions and the deviation from these models was limited. Admittedly subject to adaptations all the Westminster constitutions were similar, and in fact to some extent they still are; thus in its essential features the 1980 constitution of Zimbabwe draws from the same stock as its predecessors of the early 1960s. The first constitutions of the former French territories were, likewise, very similar, inspired as they were by the French constitution of 1958. The Loi fondamentale of the Congo was strongly influenced by the Belgian constitution, and so was the autochthonous constitution of Burundi which was promulgated a few months after independence in 1962.

Many constitutions have since succeeded these initial texts: between 1960 and 1985 there have been 43 constitutions in the 18 French-speaking countries under consideration, i.e. an average of 2·4 constitutions per country. This flow has led to a considerable diversification of constitutional types.

Type
Research Article
Information
Journal of African Law , Volume 30 , Issue 2 , Autumn 1986 , pp. 75 - 90
Copyright
Copyright © School of Oriental and African Studies 1986

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References

1 For more information on this subject, see: Gonidec, P. F., Les constitutions des Etats de la Communauté, Paris, 1959Google Scholar; Lavroff, D. G., Les systèmes constitutionnels en Afrique noire, Paris, 1976, 17–18Google Scholar.

2 Conac, G., “L'évolution constitutionnelle des Etats francophones d'Afrique noire et de la République démocratique malgache”, in Conac, G. (ed.), Les institutions constitutionnelles des Etats d'Afrique francophone et de la République malgache, Paris, 1979, 49fGoogle Scholar

3 In this the African states were forerunners to France, where the direct election of the President was not introduced until 1962.

4 Buchmann, J., L'Afrique noire indépendante, Paris, 1962, 252–283Google Scholar.

5 constitutionnelle, Loi no. 76–01, journal officiel de la République du Sénégal, 3 04, 1976Google Scholar.

6 Ch. Cadoux, , “Les élections générates de 1982–1983 à Madagascar: des élections pour quoi faire?”, (1983) Année africaine, 67 at 83–84Google Scholar.

7 Heaphey, J., “The Organization of Egypt: Inadequacies of a Nonpolitical Model for Nation-Building”, (1966) World Politics, 177–178CrossRefGoogle Scholar.

8 It must be noted that the Togo constitution gives this power to the Central Committee of the Party.

9 For a good comparative exercise, see Ojwang, J. B., “The Residue of Legislative Power in English and French-speaking Africa: A Comparative Study of Kenya and the Ivory Coast”, (1980) International and Comparative Law Quarterly, 296–326CrossRefGoogle Scholar.

10 Called “orleanist” after the system introduced by the 1830 Constitution of France, under King Louis-Philippe (of Orleans).

11 On this topic too, Ojwang has performed a useful comparative analysis: Ojwang, J. B., “Legislative Control of Executive Power in English and French-speaking Africa: A Comparative Perspective”, (1981) Public Law, 511–544Google Scholar.

12 Selassie, Bereket Habte, The Executive in African Governments, London, 1974, 30Google Scholar.

13 The system was introduced in Cameroon in 1972, upon the change from federal to united Republic.

14 For more detailed information on these schemes, see Desouches, C. in Encyclopédie juridique de I'Afrique, I, 65–67Google Scholar.

15 (1980) Année Africaine, 275Google Scholar.

16 In recent elections, the number of candidates was approximately fivefold that of the number of seats.

17 In order to be elected, the successful candidate must, however, obtain at least 25 per cent of the votes cast.

18 Conac, op. cit., 13.

19 Ibid., 14–15.

20 Lavroff, , op. cit., 40–41Google Scholar.

21 North Atlantic theory has it that a constitution should contain “the very minimum, and that minimum to be rules of law” (ChiefJustice Marshall, in McCulloch v. Maryland, 4 Wheaton 316Google Scholar), quoted by Wheare, K. C., Modem Constitutions, London, 1966, 33–34Google Scholar.

22 Conac, op. cit., 23.

23 Read, J. S., “The new Constitution of Nigeria, 1979: ‘The Washington Model?’”, [1979] J.A.L., 131–169Google Scholar.