Cross-Constitutional Influences in in Sub-Saharan Africa
Gedion T Hessebon
I.

Introduction
The comparative study of constitutions has a long and venerable history.1 Though its fortunes
have ebbed and flowed, with the end of the cold war and the democratic transition of countries
that formerly belonged in the communist bloc, there has been a considerable revival in the study
of constitutions from a comparative perspective.2 So much so that, it would even be appropriate
to speak of comparative constitutional law as forming a distinct field of study within the broader
discipline of legal studies. One of the persistent themes of inquiry that has stood out in the last
two decades in the study of comparative constitutional law happens to be cross-constitutional
influences. 3 An impressive body of theoretical scholarship and empirical studies in relation to
what is often termed as the migration of constitutional ideas or constitutional borrowing has been
produced in the past decade and half.4
One of the first things that stands out in the theoretical discourse concerning cross constitutional
learning and influences is the diversity of proposed metaphors proposed as explanations or ways

SJD candidate, Central European University (Budapest, Hungary); Assistant Lecturer, Addis Ababa University, School of Law (Addis Ababa,
Ethiopia). Email [email protected] or [email protected]
1
Some would trace the comparative study of constitution to the ancient Greek philosophers like Aristotle, See
Michel Rosenfeld ed., The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 2012, p.
3.
2
Mark Tushnet, "Comparative Constitutional Law." In The Oxford handbook of comparative law, Oxford
University Press, 2006, p. 1228.
3
Vlad Perju. "Constitutional Transplants, Borrowing and Migrations." In The Oxford Handbook of Comparative
Constitutional Law, edited by M. Rosenfeld and A. Sajo, Oxford: Oxford University Press, 2012, pp1306-1308.
4
Ibid.
1
of understanding the phenomena of one constitutional system influencing another constitutional
system. This debate regarding terminologies and metaphors is important because, “only a
sufficiently transparent and capacious lens can capture the complexity of cross-constitutional
interactions”.
5
In the battle of “metaphors” as some have called this debate, it looks that the
metaphor of migration seems to have won the day as the as being more reflective of the full
range of and the overall complexity of the process of cross-constitutional learning and influences
as opposed to other metaphors such as “borrowing”.6 According to the proponents of the
migration of constitutional ideas as an apt metaphor, it signifies ; “all movements across systems,
overt or covert, episodic or incremental, planned or evolved, initiated by the giver or receiver,
accepted or rejected, adopted or adapted, concerned with substantive doctrine or with
institutional design or some more abstract or intangible constitutional sensibility or ethos.”7
The study of the migration of constitutional ideas has both a descriptive or analytical component
and a normative aspect as well. The descriptive and analytical focus of those who study the
migration of constitutional ideas revolves around the object, timing, motivations and patterns of
the migration of constitutional ideas.8 Those who analyze the effects and preconditions of the
migration of constitutional ideas also contribute to the descriptive and analytical wing of the
5
Vlad Perju, "Constitutional Transplants, Borrowing, and Migrations." Oxford Handbook of Comparative
Constitutional Law, Eds. M. Rosenfeld & A. Sajo (2012), p. 1311.
6
7
Ibid.
Sujit Choudhry, ed. The migration of constitutional ideas. Cambridge University Press, 2006, p.21.
8
Vlad Perju, "Constitutional Transplants, Borrowing, and Migrations." Oxford Handbook of Comparative
Constitutional Law, Eds. M. Rosenfeld & A. Sajo (2012), p. 1324-42.
2
literature on cross constitutional influences and learning.9 In analyzing and describing cross
constitutional influences and learning, some scholars have reiterated that the focus should not be
only on instances in which a constitutional idea from one constitutional system is accepted or
adopted in to another system.10 Further refining this insight, Kim Scheppel has developed the
twin notions of aspirational and aversive constitutionalism.11 The former leads to the acceptance
and adoption of constitutional ideas and models
which are in tune with one’s constitutional
aspirations. The later, i.e. aversive constitutionalism signifies the deliberate and well considered
rejection of constitutional models and ideas as negative and undesirable.12 In another analytical
stream and considering the extent and incidence of the migration of constitutional ideas, Fredrick
Schauer identifies four typologies of constitutions, namely, the imposed constitution, the
transplanted constitution, the indigenous constitution and the transnational constitution but
concludes at the end of the day that especially in the contemporary world both notions of a truly
indigenous or imposed constitution are “quaint”.13 Another notable theory concerning the
migration of constitutional ideas tries to explain the process of the transfer of constitutional ideas
through an analogy of the process of buying and assembling furniture from an Ikea store. 14
According to the proponent of this theory, the main thesis of the “Ikea Theory” is that there is a
global constitution which is
9
For example see Yasou Hasebe, "Constitutional borrowing and political theory." Int'l J. Const. L. 1 (2003): 224.
Hasebe, based on the Japan’s experience argues that “constitutional borrowing show the extent to which the
functions of imported constitutional institutions and doctrines depend on political theories embraced or presupposed
by the importers.”
10
See Lee Epstein and Jack Knight. "Constitutional borrowing and no borrowing." Int'l J. Const. L. 1 (2003): 196.
See Kim Lane Scheppele, "Aspirational and aversive constitutionalism: The case for studying cross-constitutional
influence through negative models." International Journal of Constitutional Law 1, no. 2 (2003): 296-324.
12
Ibid., pp299-300.
13
Frederick Schauer,"On the Migration of Constitutional ideas." Conn. L. Rev. 37 (2004), p. 916.
14
Günter Frankenberg, "Constitutional transfer: The IKEA theory revisited." International journal of constitutional
law 8, no. 3 (2010): 563-579.
11
3
“created by the or rather emanates from processes of transfer and functions as a reservoir or for that
matter, a supermarket, where standardized constitutional items-grand designs as well as elementary
particles of information-are stored and available, pret-a-porter, for purchase and reassemble by
constitution makers around the world”.15
From the normative perspective the debate concerning the migration of constitutional ideas
largely focuses on the merit of
cross constitutional influences and learning. For instance,
using the Argentinian experience as an example, Carlos Rosenkrantz argues against
constitutional borrowing and cites the “heterogeneity of constitutional law and the
difficulties in the democratic validation of the decision to adopt a foreign law” as some of
the reasons which make the migration of constitutional ideas undesirable.16 Rosenkrantz’s
objection to the migration of constitutional ideas seems to be rather unusual in that he
objects even to the migration of constitutional ideas for the purpose of constitution
making.17 In the normative debate concerning the migration of constitutional ideas, most of
the time what is at issue is the use of comparative law in constitutional adjudication and not
in the making of constitutions.18
As has been pointed out above, there is a growing and impressive corpus of scholarship on
the cross-constitutional influences. However, within this body of scholarship, studies
focusing on the experience of African countries other than South Africa with regard to
cross-constitutional influences are hard to come by. This is a rather unfortunate state of
15
Ibid., p 565.
Carlos F. Rosenkrantz, "Against borrowings and other nonauthoritative uses of foreign law." Int'l J. Const. L. 1
(2003), p.269.
17
Ibid., 285.
18
See Norman Dorsen, "The relevance of foreign legal materials in US constitutional cases: A conversation between
Justice Antonin Scalia and Justice Stephen Breyer." International Journal of Constitutional Law 3, no. 4 (2005):
519-541.
16
4
affairs because sub-Saharan African countries provide a great opportunity to study the
phenomena of cross-constitutional influences. Since the days of independence and even
prior to that, till the present day one can observe many instances of cross constitutional
influences across sub-Saharan Africa. This paper has two purposes. The first is to present to
the reader some of the many instances of cross constitutional influences in sub-Saharan
Africa. The second purpose of the paper is to reflect on these instances and draw some
observations or lessons that could contribute to the ongoing scholarly discussion about the
phenomena of cross-constitutional influences. Obviously, a paper of this size and nature will
only scratch the surface concerning cross-constitutional influences in sub-Saharan Africa.
Ultimately, the author will consider it a success if this piece manages to raise the interest of
its readers about cross-constitutional influences in sub-Saharan Africa. Whetting appetite on
the topic and not satisfying it is the best that could be hoped for when such a short paper
tries to address such a huge topic.
II. Instances of cross constitutional influences in sub-Saharan Africa
A. Non colonial cross constitutional influences in Sub-Saharan Africa
Most sub-Saharan African countries are the direct creations of European colonial empires.19 As a
result and as will be discussed in the following sub-sections of this paper, in many of these
countries at least initially cross-constitutional influences were very much shaped by colonial
relations. However, two sub-Saharan African countries, namely Liberia and Ethiopia do not owe
19
Jeffrey Herbst,"The creation and maintenance of national boundaries in Africa", International Organization 43,
no. 4 (1989), p. 674.
5
their existence to colonialism.20 As a result, these two countries present instances in which cross
constitutional influences occurred in a non-colonial setting prior to the second half of the
twentieth century. However, this last claim needs to be qualified when we take in to account that
the creation of Liberia as a state goes back to the settler colony formed in 1820 in western Africa
by the American Colonization Society.21 This association was established to settle in Africa freed
slaves from the United States.22 Therefore, though Liberia was not formed as a colony of a
sovereign state as most other African countries were, it was still a result of a colonial project.
Initially, the American Colonization Society, which was a private association that supported the
“return” of freed slaves from the United States to Africa , administered the settler colony that
later became Liberia.23 But by 1847, the settlers declared the independence of Liberia and
inaugurated perhaps the first written constitution of its kind in sub-Saharan Africa.24 This
constitution was naturally and to a great extent modelled on the Constitution of the United
States.25 The 1847 Constitution of Liberia provided for bicameralism, a presidential executive, a
separate judicial branch of government and a system of county governments.26 The franchise was
limited to only those owning real property and as a result most of the indigenous inhabitants of
Liberia were excluded from taking part in the political order instituted by this Constitution.27 It
was not only the written constitutional rules of the United States that were influential in Liberia.
20
See Monday B Akpan, "Liberia and Ethiopia, 1880-1914: the survival of two African states." General History of
Africa, VII, Africa under Colonial Domination 1880-1935 (Abridged Edition) (1935): 120-131.
21
See Amos Jones Beyan, The American Colonization Society and the Creation of the Liberian State: A Historical
Perspective, 1822-1900. University Press of America, 1991.
22
Henry Noble Sherwood, "The Formation of the American Colonization Society", The Journal of Negro History 2,
no. 3 (1917): 209-228.
23
John Mukum Mbaku, "Constitutionalism and Governance in Liberia: Where is the Liberty that Brought AfricanAmericans to the West African Coast in 1820?." Sernall at the University of Pittsburgh at Johnston-Geography
Department. (2010), p.61.
24
Ibid.
25
George W. Ellis, "Political Institutions in Liberia." American Political Science Review 5, no. 02 (1911), 213-214.
26
Ibid., See also Mbaku Supra note 9, 61.
27
Ibid.
6
Even some of the conventions such as the two term limits of the president were adopted as
applicable in Liberia even though this convention was not incorporated directly in to the Liberia
Constitution.28
As has been noted already, it is not surprising that the US Constitution had influenced the 1847
Constitution of Liberia. This is so for two reasons. The first reason is the fact that at that point in
time, the US Constitution was among the few written constitutions in existence and even then the
oldest written constitution in operation. Furthermore, the founders of Liberia were settlers from
America who were familiar if not exclusively, mostly with the American constitutional model. It
was only natural and inevitable that when drawing up a constitution for Liberia they would draw
upon the experience of the United States.
When we come to Ethiopia, the modern day Ethiopia owes its creation to the expansion and
consolidation of an indigenous Kingdom that traces its history to the ancient Axum Empire
(100–940 AD).29 In its long history of statehood, Ethiopia did not have a written constitution in
the modern sense of the term and the first written constitution was adopted in 1931 with the
coming in to power of Emperor Haile Selassie.30 In his quest to modernize Ethiopia, one of the
first tasks undertaken by the Emperor was the adoption of a written constitution. This
constitution was drafted by Tekle-Hawariat Tekle-Mariyam a Russian educated member of the
aristocracy.31 In his autobiography, Tekle-Hawariat relates how he asked the various foreign
diplomatic in Ethiopia to provide him a copy of their respective constitutions to see which
28
Ibid, 221.
See Bahru Zewde, A history of modern Ethiopia, 1855-1991 (James Currey, 2001), 60-68; See also Harold G.
Marcus, A History of Ethiopia (University of California Press, 1994), 77-90.
30
Bereket Habte Selassie, "Constitutional Development in Ethiopia." Journal of African Law 10 (1966), p.76.
31
See Autobiography: Tekle-Hawariat Tekle-Mariyam( Addis Ababa University Press, 2007, in Amharic), pp.
29
7
constitutional model would be the best fit for Ethiopia.32 Finally, he decided to draw his
inspiration from the Japanese Meiji constitution.33 He argued that given the conservative, feudal
and monarchical traditions of both Japan and Ethiopia, Japan provides the best model for
constitutional modernization for Ethiopia.34 Though he had spent a number of years in Russia for
his studies and despite the similarities between Russia and Ethiopia in their shared orthodox
Christianity and long tradition of imperial rule, the rapid success of Japan in its effort of
modernization seems to have been essential in making the Japanese constitution to the architect
of the 1931 Ethiopian Constitution.
A quarter of a century later, when the 1931 constitution seemed antiquated, a revised constitution
was adopted in 1955.35 In the drafting of this revised constitution, John H. Spencer, a long time
American legal adviser of Emperor Haile Selassie played a significant role.36 As a result, the
1955 Constitution of Ethiopia had a bill of rights that bears a striking resemblance in some of its
language to the bill of rights of the US Constitution and the Universal Declaration of Human
Rights.37 Almost twenty years later, when the monarchy was in the brink of collapse and a
revolution was afoot, a new constitution was drafted to turn the monarchy in to a constitutional
monarchy like the British monarchy.38 This draft constitution, which was completed in 1974 and
was drafted by preeminent Ethiopians with foreign legal training abroad, was modelled upon the
British Westminster constitutional democracy.39 However, before this constitution could be
32
Ibid.
Ibid.
34
Ibid.
35
Supra note 30 Bereket, p. 81.
36
John H Spencer, Ethiopia at bay: A personal account of the Haile Selassie years. Tsehai Publishers, 2006, p. 256258.
37
Ibid.
38
See Taffara Deguefé, Minutes of an Ethiopian Century. Shama Books, 2006; See also James CN Paul, "Some
Observations on Constitutionalism, Judicial Review and Rule of Law in Africa." Ohio St. LJ 35 (1974): 861.
39
Ibid.
33
8
adopted, the military took over power and amidst a revolutionary upheaval in which leftist
radical ideas were in the ascendency, the liberal 1974 draft constitution was unceremoniously
discarded.40 The next effort to adopt a new constitution occurred after fourteen years in 1987.41
By then, given that the state ideology was scientific socialism, the constitutions of the eastern
bloc in the cold war were the most influential models. Therefore, the 1987 constitution of the
People’s Democratic Republic of Ethiopia borrowed liberally from the Constitution of the USSR
as well as its allies in Eastern Europe. 42
B. Colonial cross-constitutional influences in (Anglophone) Sub-Saharan Africa
In African countries that owe their existence to the colonial endeavour of European countries and
that gained their independence in the 1960’s, the dominant constitutional influence upon
independence was that of their former colonial masters.43 When former French and British
colonies gained independence, their constitutions were modelled up on the De Gaulleist Fifth
Republic French constitution or the British Westminster constitutional model respectively.44
Due to the limitation of relevant literature in English when it comes to former French colonies
40
Ibid.
See Christopher Clapham, "The constitution of the people's democratic Republic of Ethiopia." (1987): 192-195.
42
Menghistu Fisseha-Tsion, "Highlights of the Constitution of the Peoples' Democratic Republic of Ethiopia
(PDRE); a critical review of the main issues." Rev. Socialist L. 14 (1988), p.176.
43
Michael Crowder, “Whose Dream Was It Anyway? Twenty-Five Years of African Independence,” African Affairs
41
86, no. 342 (January 1, 1987), p.19.
44
See Y. P. Ghai, “Constitutions and the Political Order in East Africa,” The International and Comparative Law
Quarterly 21, no. 3 (July 1, 1972) pp. 411–412 and Victor T. Le Vine, “The Fall and Rise of Constitutionalism in
West Africa,” The Journal of Modern African Studies 35, no. 2 (June 1, 1997), p.184.
9
the discussion in the remaining part of this section will focus on countries that were formerly
British colonies.
The former colonies of Britain essentially got their independence with constitutions drafted by
the British Colonial Office and which codified the practice of Westminster parliamentarian
democracy.45 However, these constitutions were not simple codifications of the unwritten
constitution of Britain. In some important ways, the independence constitutions of countries like
Nigeria, Kenya and Uganda departed from the British example. Three aspects of these
constitutions stand out in this regard. The first is the introduction of constitutionally entrenched
decentralisation.46 The other point of departure is the inclusion of bill of rights in these
constitutions.47 The third significant difference between the British constitutional practice and
the independence constitutions of former British colonies in sub-Saharan Africa is the power
given to the judiciary in these constitutions to review the constitutionality of both administrative
and legislative acts, clearly departing from the English doctrine of parliamentary sovereignty. 48
Most of these departures from the British practice were motivated by the prevalence of ethnic
diversity and competition and concerns about the rights of minorities.49 Federalism or
constitutionally entrenched regionalism as well as bill of rights backed by judicial review were
considered necessary deviations from the Westminster constitutional model to protect the interest
of ethnic minorities and to avoid the domination of some ethnic groups by others. These aspects
of the independence constitutions of the former British colonies show that the constitutional
45
Robert B. Seidman, “Constitutions in Independent, Anglophonic, Sub-Saharan Africa: Form an Legitimacy,”
Wisconsin Law Review 1969 (1969), p.94.
46
Ibid., p.95.
Ibid., p.104.
48
Ibid., p.108.
49
Ibid., p.111.
47
10
experience of the United States had also influenced the African constitutional landscape. Apart
from the content of these constitutions which embodied federal or federal type arrangements, bill
of rights and constitutional review by the judiciary, one of the most notable evidences of the
influence of US constitutionalism in Africa during the time of independence comes from the
experience of Kenya. In the early 1960’s when various political groups were negotiating to frame
Kenya’s independence constitution in the Lancaster House Negotiations in London, Thurgood
Marshal, who was by then a famous American civil rights lawyer was serving as an expert
advisor of the Kenyan nationalist political groups.50 Marshal’s draft for a bill of rights provided
an important input in the negotiations and had a great influence on the final independence
constitution of Kenya.51 In drafting the bill of rights for the Kenyan independence constitution,
Marshal relied not only on the US bill of rights but he borrowed extensively from the bill of
rights of the Nigerian and Malay independence constitutions as well as the Universal Declaration
of Human Rights.52
Apart from these deviations from the British constitutional practice (i.e. bill of rights, federalism
and judicial review), the independence constitutions of the former British colonies in Africa
followed the Westminster constitutional model very closely. Most of these countries initially
retained the British monarch as their head of state and the queen was represented in these
countries with a Governor General.53 A prime minister as a head of government leading the party
commanding a majority in the lower house, bicameralism, collective responsibility of the
cabinet, a first past the post electoral system for the lower house were all features of the
50
See Mary L. Dudziak, "Working Toward Democracy: Thurgood Marshall and the Constitution of Kenya." Duke
Law Journal (2006): 721-780.
51
See Mary L. Dudziak, "Thurgood Marshall’s Bill of Rights of Rights for Kenya", Green Bag 2d 11 (2008): 307521.
52
Dudziak, Supra note 36., p.758.
53
Newell M.Stultz, "Parliaments in Former British Black Africa." The Journal of Developing Areas 2, no. 4 (1968),
p. 482.
11
independence constitutions of
countries such as Ghana, Nigeria, Kenya, Uganda and
Tanganyika.54 The influence of the British constitution was unmistakable and quite obvious.
These constitutions were not only
drafted by the British Colonial office but they were also
issued either as Orders in Council of the Queen or statutes of the British Parliament.55 While the
Colonial Office played a substantial role in shaping the independence constitutions of the former
British colonies, the African political elites who were about take over the reins of government
also had a role in the negotiations that invariably preceded independence and were held in
London.56 Given the desire of these elites to secure independence as soon as possible they
accepted the constitutional proposals of the colonial office. However, their actions soon after
independence, which will be discussed below indicate that they were not really committed to
their independence constitution. It seems that rather than fondness, familiarity or appreciation of
the Westminster constitutional model or the safeguards introduced to protect minorities, the
desire to gain independence as quickly as possible seems to have been the decisive factors in that
have led to the acceptance of the independence constitutions by the African political elites.
C. Post-Colonial and Contemporary cross constitutional influences in Sub-
Saharan Africa
Once they have secured their independence, the newly independent Anglophone African
countries started to chart their own constitutional path which increasingly diverged from the
54
Ibid., 479-494.
William Dale,"The making and remaking of commonwealth constitutions**."Commonwealth Law Bulletin 19, no.
2 (1993), p. 765.
56
See for example Robert M. Maxon, Kenya's independence constitution: constitution-making and end of empire.
Fairleigh Dickinson, 2011.
55
12
Westminster constitutional model that was supplemented by safeguards for ethnic minorities. As
these former British colonies amended their independence constitutions or adopted new
constitutions the influence of the British constitutional tradition decreased. Since independence,
most of these countries have adopted constitutions that were largely shaped by the needs of those
in power and their local exigencies. Though these countries have eschewed following the
constitutional model of other countries wholesale and have assumed more and more control of
their constitutional futures, cross constitutional influences have still continued to be felt.
As has been noted earlier, right before independence, the migration of constitutional ideas was
largely from the metropole to the African countries that were about to gain their independence.
After gaining independence, however, these new states were more open for the migration of
constitutional ideas from countries other than their former colonial rulers. A prime example of
this would be Nigeria.
Upon independence in 1960, Nigeria borrowed the Westminster
constitutional model. However, a decade and half after independence, when Nigeria had to adopt
a new constitution after the collapse of the first Nigerian republic, the framers of the 1979
Nigerian constitution opted to follow the US constitutional model with a directly elected
president for a fixed four year term.57 The 1979 Nigerian constitution also drew inspiration from
the Indian Constitution and included Fundamental Objectives and Directive Principles of State
Policy.58 This tendency has become even stronger since the days of the adoption of the Nigerian
constitution in 1976. Constitutional drafters in various African countries are expanding the scope
of their search for constitutional ideas and solutions that could be incorporated in their
constitutions. The widening scope of comparative constitutional learning among African
57
See James S Read, "The New Constitution of Nigeria, 1979:‘The Washington Model’?." Journal of African
Law 23, no. 2 (1979): 131-174.
58
See B. Obinna Okere, "Fundamental Objectives and Directive Principles of State Policy under the Nigerian
Constitution." International and Comparative Law Quarterly 32, no. 1 (1983): 214214.
13
constitutional framers could be easily demonstrated by the references they make to the
experiences of various constitutional systems around the world. For instance in Zambia, the 2005
Constitutional Review Commission, given that task of drafting a new constitution for Zambia
conducted “comparative study tours” to South Africa, Uganda, Kenya, Ethiopia, Nigeria,
Sweden, Denmark, Norway and India with funding from the UNDP. 59 In addition to these
countries, the Commission in its report makes reference to the Constitution of the United States,
the Constitution of the State of California and the 1992 Constitution of Ghana.60 The Ghanaian
Constitutional Review Commission, which had been given the task of undertaking a
comprehensive review of the 1992 Ghanaian constitution with a view to reform it has made a
reference to thirty five foreign constitutions.61 The reference to foreign constitution ranged from
the usual suspects such as the United States, Germany and South Africa to the more exotic 1979
Constitution of the Republic of Palau. 62 The Kenyan Constitution Review Commission of 2005
has also made reference to 17 different foreign constitutions.63
While African countries since independence have been very open for the migration of
constitutional ideas, at the same time there has been significant constitutional innovation locally.
For example, we could take the various attempts to institute non-party government systems in
Africa. One notable and original such proposal was the Union Government proposal tabled by
59
See Republic of Zambia REPORT OF THE CONSTITUTION REVIEW COMMISSION
, Secretariat Constitution Review Commission Lusaka 29th December 2005, available at
http://www.ncczambia.org/media/final_report_of_the_constitution_review_commission.pdf , page XiV.
60
Ibid. p. XX.
61
Republic of Ghana, Report of the Constitution Review Commission, 2011, available at
http://www.ghana.gov.gh/images/documents/crc_report.pdf, pp 818-819.
62
Ibid.
63
THE FINAL REPORT OF THE CONSTITUTION OF KENYA REVIEW COMMISSION 2005, available at
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CDIQFjAB&url=http%3A%2F%2
Fwww.mlgi.org.za%2Fresources%2Flocal-government-database%2Fby-country%2Fkenya%2Fcommissionreports%2FMain%2520report%2520CKRC%25202005.pdf%2Fdownload&ei=JBQsU7LIJPOu7AbzsYCIAQ&usg
=AFQjCNG2xetS2yDs970syMSR8GHsZeKxDA&sig2=Aagte9gEYCaBYWtMuprimQ&bvm=bv.62922401,d.ZGU
, p. 706.
14
the military government of the day in Ghana in 1979.64 Another closely related experiment, also
proposed by a military administration was a constitutionally sanctioned two party system. 65
Another interesting experiment in Nigeria which seemed to have proved a popular constitutional
export item from Nigeria is the geographic spread requirement for presidential elections.66
Ethiopia’s system of constitutional review by the upper house of parliament is also another
example of unique home grown constitutional ideas.67 It is interesting to observe that these rather
unique ideas were proposed and adopted primarily to address the issue of politicized ethnicity
and the instability, tension and conflicts that arise in relation to ethnicity. When dealing with
such a highly context dependent issue, naturally states would be more likely to look for home
grown solutions. Nevertheless, not all these home “grown solutions” should be taken at face
value as genuine attempts to address problems of politicized ethnicity. At times, in the guise of
the search for constitutional autochthony and providing home grown constitutional solutions for
local problems, hegemonic political actors try to advance their own interest.
Another important trend worth discussing, particularly since the 1990’s in relation to
constitutional migration in sub-Saharan Africa, is the increasingly important influence of
international human rights instruments. A number of contemporary African constitutions have
either directly or by reference incorporated international human rights instruments. As Charles
Fombad notes “in almost all modern African constitutions, many of the provisions especially
those recognizing and protecting human rights,
have been substantially influenced by
64
See Maxwell Owusu, "Politics without parties: Reflections on the Union Government proposals in
Ghana." African Studies Review (1979): 89-108.
65
See Anthony Akinola, "A Critique of Nigeria’s Proposed Two-Party System."Journal of Modern African
Studies 27, no. 1 (1989): 109-123.
66
Matthias Basedau, "Managing ethnic conflict: the menu of institutional engineering." (2011), p.15
67
See Yonatan Tesfaye, "Whose Power is it Anyway: The Courts and Constitutional Interpretation in
Ethiopia." Journal of Ethiopian Law 22, no. 1 (2008): 128-44.Yonatan,. "Whose Power is it Anyway: The Courts
and Constitutional Interpretation in Ethiopia." Journal of Ethiopian Law 22, no. 1 (2008): 128-44.
15
international human rights instruments and standards”.68 Underlying this trend is a view of
international human rights instruments as a touchstone for human rights protection and a desire
to legitimize domestic constitutional orders by aligning them with international human rights
norms. This exercise of bolstering the legitimacy of constitutions through association with
international human rights treaties has as its audience both internal and external actors.69
An additional phenomenon in relation to the migration of constitutional ideas in Africa is the
extent to which cross constitutional influence and learning among African countries is becoming
more and more the norm. For example, in some of the most recent constitution making exercises
in Africa such as that of Kenya and Zambia, constitutional experts from other African countries
have been formally given high profile roles as consultants and drafters.70 Considering the
similarity of the political context prevalent in many sub-Saharan African countries, it is not
surprising that there is significant migration of political ideas among these countries. For
example in relation to the management of ethnicity, the Nigeria’s regulation of political parties
as well as its requirement that the winner of a presidential election must secure a certain portion
of the votes at least in two third of the states have inspired similar rules in other African
countries.71 The South African system of decentralization and management of ethnic diversity
which recognizes ethnic diversity without politicalizing ethnicity seems to be exerting some
68
Charles Manga Fombad, "Internationalization of constitutional law and constitutionalism in Africa." American
Journal of Comparative Law 60, no. 2 (2012),p.445.
69
See for example Kevin L. Cope, "The Intermestic Constitution: Lessons from the World's Newest
Nation." Virginia Journal of International Law 53, no. 3 (2013).
70
REPUBLIC OF ZAMBIA FIRST DRAFT REPORT OF THE TECHNICAL COMMITTEE ON DRAFTING
THE ZAMBIAN CONSTITUTION, The Secretariat Technical Committee on Drafting the Zambian Constitution
Government Complex Conference Centre Kamwala LUSAKA June, 2012, available at
http://zambianconstitution.org/images/downloads/draft%20report%20%20of%20the%20technical%20committee.pd
f , pp. 6-7. See also FINAL REPORT OF THE COMMITTEE OF EXPERTS ON
CONSTITUTIONAL REVIEW, 11TH OCTOBER, 2010
Committee of Experts on Constitutional Review, available at http://www.mlgi.org.za/resources/local-governmentdatabase/by-country/kenya/commission-reports/CoE_final_report.pdf , p. 157.
71
See Basedau, Supra note 66.
16
influence in the more recent constitution making exercises in sub-Saharan Africa. While the
South African constitution in this regard provides an example of an aspirational constitutional
migration, Ethiopia’s ethnic federalism seems to provide an example of a case of avers
constitutional migration.
III.
Conclusion
The previous section of this paper offers a brief and limited glance at some instances of
migration of constitutional ideas in sub-Saharan Africa. Based on this discussion, perhaps it
would be possible to make some preliminary observations and draw some tentative lessons about
the migration of constitutional ideas. One of the first observations that could be made and which
perhaps might be very obvious is, the ubiquitousness of the migration of constitutional ideas
especially during processes of constitution making. And because since independence many
African countries had adopted multiple constitutions within a span of few decades, there has
been a considerable degree of migration of constitutional ideas in Africa.
Another observation that could be made is that the more recent constitution making projects in
Africa differ with earlier constitution making processes in the pattern, extent and modalities of
migration of constitutional ideas they exhibit. What stands out most about constitutions adopted
in the earlier constitution making waves in Africa with regard to the migration of constitutional
ideas is that, as has been noted earlier, those constitutions adopted just prior to independence
closely followed the constitutional model of the departing colonial rulers. Hence the pattern of
migration was vertical, it was extensive and the resulting constitutions could be perceived as
imposed constitutions.
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Constitutions adopted after independence and before the end of the cold world war were mainly
inward looking and was by and large dictated by local political contingencies and propelled by
the desire of the incumbents to monopolize and centralize power. Therefore, there was little need
for cross constitutional learning and influences. What has been typical in most African states in
the 1970’s and 80’s was the adoption of homemade and assembled one-party autocracies which
had little room for constitutional borrowing. However, it could be contended that there was an
aversive constitutional migration in the sense that these countries rejected multiparty democracy.
When we come to the 1990’s the most notable development is the importance international
human rights instruments had assumed as avenues of the migration of constitutional ideas. With
the latest constitution making processes in Africa, which are happening in the 21st century we
can observe the fact that constitutional drafters in various African countries are expanding the
scope of their search for constitutional ideas and solutions that could be incorporated in their
constitutions. Overall, the pattern of migration is becoming more complicated and the sources for
migration are becoming more diverse.
18