‘Perfecting imperfections’: developing procedures for amending constitutions in Commonwealth Africa

Abstract

A constitution enjoys a special place in the life of any nation, for it regulates not only the exercise of political power, but also the relationship between political entities and between the state and persons. Being the supreme law, it helps to shape the organisation and development of society both for the present and for future generations, and sets objective standards upon which the people and the international community can judge government performance, thus providing a measure of accountability and transparency in national and local affairs. Further, a constitution sets out the rights and duties of the citizens, and provides mechanisms to enable them to protect their interests. Overall a constitution can contribute to the development of a politically active civil society as well as promoting good governance, accountability and the rule of law.

Prior to the 1990s the history of constitutions and constitutionalism in Commonwealth Africa, as elsewhere on the continent, was bleak. The newly independent states started life with the Westminster export model constitution bestowed upon them by the British. There was little or no opportunity for public debate on the document, and the nationalist leaders themselves had no genuine choice as to its structure and contents. The futility of forcing the model on the newly independent states, in the words of Karugire ‘a triumph of hope over experience’, inevitably led to constitutional instability and a round of constitution-making and amendment wholly designed to enhance executive power, remove checks and balances, and undermine the enjoyment of fundamental rights and freedoms.