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Constitutionalism, ethnicity
and minority rights in Africa:
A reply to Jeremie Gilbert
H. Kwasi Prempeh*
Jeremie Gilbert’s article highlights a notable feature of contemporary African constitutionalism, namely its neglect of group or minority rights. The omission, as Gilbert
explains, is both deliberate and longstanding. Group-based claims and political formations were anathema to postcolonial Africa’s founding elites. Early official hostility
to political mobilization on the basis of ethnicity stemmed from a fear that recognition or encouragement of such activity might challenge and undermine the inchoate
national identity that fragilely held the new states’ ethnically heterogeneous populations together. Thus, among the first constitutional and legislative changes enacted by
Africa’s postcolonial governments were the proscription of political parties allegedly
organized along ethnic lines1 and the removal of structural safeguards that had been
inserted in independence constitutions to preserve a realm of territorial autonomy
for ethno-regional subnational communities.2 Although justified in the name of
“national unity,” these measures were also aimed at the time at suppressing political
opposition, the most formidable of which tended to represent ethno-regional interests
and constituencies, and often supported demands for provincial devolution or federalism. The ideology of national unity was similarly deployed by Africa’s state elites to
underwrite both the one-party state and presidential autocracy.
In pressing the case for explicit constitutional recognition of the rights of ethnic
minorities in African states, Gilbert implicitly rejects the early attempts by state elites
to delegitimize political mobilization of ethnicity as a negative force in African politics.
*
1
2
Professor, Seton Hall Law School. Email: [email protected]
Ghana, sub-Saharan Africa’s first state to break free from colonial rule in March 1957, led the way with
the passage in 1958 of the so-called Avoidance of Discrimination Act, the full title of which was “An Act to
prohibit organizations using or engaging in racial or religious propaganda to the detriment of any other
racial or religious community, or securing the election of persons on account of their racial or religious
affiliation, and for other purposes in connection therewith.” The opposition parties whom this law targeted, responded by merging to form the United Party.
Ghana, Kenya, and other newly independent African states whose independence constitutions included
neo-federalist clauses, providing for a sharing of national power between a central government and
ethno-regional bodies, pushed through constitutional amendments soon after independence to remove
those provisions and recentralize the state.
I•CON (2013), Vol. 11 No. 2, 438–443doi:10.1093/icon/mot015
A reply to Jeremie Gilbert
439
Africa’s postcolonial experience indeed shows the futility of such attempts and the
resilience of ethnic loyalties. Ethnicity has remained politically salient in Africa, defying persistent official refusal to acknowledge it as a legitimate unit of political association and representation.
While Africa’s postcolonial governments have been remarkably successful at keeping their multiethnic states territorially intact, the dream of melting their disparate
ethnic groups into a “nation” has proved daunting and elusive. Instead of a nation
or a “nation-state,” the typical African state resembles what political scientists Alfred
Stepan and Juan Linz have called “state-nations”—that is, a state comprised of multiple ethnic or nationality groups in which the central state “nonetheless still manages
to engender strong identification and loyalty from its citizens.”3 Although Africans
have embraced their identity as citizens of a state, they have also held on firmly to
their ethnic identities and loyalties—and, often, for good reason. Ethnicity functions
within African political systems much the same way as “special interest groups” function politically elsewhere: as a key conduit along which public goods and largesse flow
from the state to its various social constituencies and communities. Thus, ostensibly
national elites acting as ethnic power brokers lobby or seek influential access to the
state in a bid to secure resources or “pork” for their communities, while individuals
similarly embrace solidarity on the basis of ethno-regional identity partly because of
its instrumental value as a means of aggregating their demands to secure schools,
roads, clinics, and other state-allocated benefits for their communities. Voting patterns in recent African elections bear this out. On their part, state elites, despite official
disavowal of ethnic-based politics, have consistently relied on ethnic calculations not
only to mobilize communal votes but also to mediate and manage the state’s relationship with society. Especially during the era of authoritarian rule, when the political
structures left no other avenues open for civil society to articulate its demands and
grievances, ethnicity supplied a measure of pluralism and representativeness and
enabled state elites to engineer legitimacy and stability for their regimes.
Yet Africa’s state elites have often not been able to demonstrate or maintain the
degree of statecraft and adroit balancing it takes to manage ethnicity or mediate competing ethnic demands. In some cases, ruling elites have consciously pursued ethnically discriminatory and exclusionary policies and practices, notably by allocating
scarce public resources and opportunities disproportionately in favor of their preferred ethnic groups. Many of postcolonial Africa’s conflicts have been precipitated by
long-felt grievances of ethnic exclusion and discrimination resulting from actual or
perceived ethnicity-colored acts and omissions of ruling elites.
Perhaps given the tacit acceptance of the political and instrumental value of ethnicity in state governance, one might expect, as Gilbert apparently does, that the elite
modus vivendi on the role of ethnicity would be reflected in contemporary African
constitutions—specifically in the form of a textual recognition and protection of ethnic “minority” rights. Such an expectation might also stem from the fact that earlier
3
Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South
America, and the Post-Communist Europe 28 (1996).
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I•CON 11 (2013), 438–443
attempts to suppress political mobilization and expression of ethnicity were an integral part of the now increasingly discredited authoritarian and centralizing projects
of the past. These expectations, however, have failed to materialize. Despite recent
counter-authoritarian and regime changes in many African states, and the constitutional and democratic reforms they have wrought, contemporary African constitutions have largely retained earlier proscriptions against ethnically identifiable parties.
Some go further to require political parties to demonstrate a “national” outlook—such
as by selecting an ethnically diverse national executive. The constitutions of Burundi,
Cameroon, and the Democratic Republic of Congo, to which Gilbert makes reference,
are indeed exceptional in explicitly recognizing ethnic identity as a legitimate unit of
political association and representation. Africa’s modern constitutions typically do no
more than guarantee all citizens equal rights before the law and protection against
official discrimination on the basis of ethnicity, among others. Minority or group-specific rights receive no explicit or special recognition or protection.
It is this persistent textual silence on constitutional “minority rights” that Gilbert
finds problematic. In his view, the absence from African constitutions of provisions
expressly recognizing and protecting minority rights leaves ethnic minorities in
African states marginalized and vulnerable to official discrimination and repression.
Although he does not explain why, Gilbert does not believe that standard human
rights provisions, including the nondiscrimination and equality clauses contained in
Africa’s constitutions, afford adequate or helpful protection to “marginalized” ethnic
minorities. Even politically negotiated constitutional commitments for ethnic “power
sharing,” such as those found in Burundi’s constitution, which guarantee minority
group representation and inclusion in influential national legislative and executive
bodies, are summarily dismissed by Gilbert as inadequate and inefficacious. In his
view, only provisions in a constitutional text that expressly provide for specific, judicially enforceable rights for identifiable minority groups would suffice.
Gilbert assumes that the indifference to minority rights reflected in African constitutions is merely a supply-side problem: a historical legacy from the early postcolonial period, when the imperative of nationalism and nation-building led African
state elites to disparage and suppress mobilization of subnational ethnic identities as
tribalism-inspired. But elite reluctance to accord ethnic identity formal recognition
and legal status is only one of the possible reasons why Africa’s current constitutions
remain silent on the subject of minority rights. There is also a demand-side explanation: advocacy or clamor for “minority rights” has not, in fact, featured among the
demands pressed by the various constituencies for reform behind the recent movements for political and constitutional change in Africa. Motivated primarily by a desire
to end decades of one-party or one-man authoritarian rule, the democratic and constitutional reform agenda in contemporary Africa has been dominated by demands for
a multi-party electoral system, presidential term limits, independent courts, and the
standard civil and political liberties necessary for meaningful political participation
and competition. While ethnic mobilization has formed an integral part of the popular demand for democratic change, ethnic constituencies, including minorities, have
generally pressed for broad-based mainstream democratic rights and freedoms. Where
A reply to Jeremie Gilbert
441
ethno-regional claims have asserted themselves with particularity within popular
democratic reform processes, these have not generally taken the form of a demand
for group-based “legalistic” rights. Instead, ethnic constituencies have been more
focused on securing equal and nondiscriminatory access to state-allocated resources
and economic opportunities, balanced regional development, credible representation
in cabinet, and other important national offices, as well as devolution of political control to local and regional authorities. In short, ethno-regional elites and constituencies in Africa have not been keen about “minority rights”; they have been a great deal
more interested in obtaining a fair and equitable share of national power, wealth, and
opportunities than in legal protection of group-based legal “rights” per se.
This is not surprising. Historically, ethnic discrimination in postcolonial Africa has
involved the privileging of certain ethnic groups over others in the allocation of public goods and access to state-controlled sources of material opportunity. State elites
in Africa have generally not interfered with the freedom of ethnic groups to practice
their customs and traditions or to speak their language. Notably, no state in Africa has
sought to impose on its multi-ethnic population the language or customs of the numerically or politically dominant ethnic group. The language of the former colonial power,
not that of any one ethno-linguistic group, has remained the sole or primary language
of government and the formal sector in nearly every African country. Moreover, ethnic groups—and also religious minorities—in Africa have generally been left free to
practice and follow their own “customary law” and practices in such personal matters
as marriage, succession, and, in some cases, even land tenure. National legislation
has displaced ethnic custom only where the latter implicates or threatens third party
interests, statutory or constitutional liberties, or other overarching public goals. In
short, as far as the cultural autonomy and cultural rights of its multifarious ethnic
communities are concerned, the postcolonial African state has generally followed a
policy of “live and let live,” interfering little with local custom. Ethnic minorities have
therefore not been targets or victims of state repression as far as their cultural rights
are concerned.
Another possible demand-side reason why “minority rights” do not appear to have
engaged the attention of contemporary political and constitutional reformers in
Africa lies in the fact that minority-group elites have often been disproportionately
represented or influential players in many of Africa’s authoritarian regimes. Several
of Africa’s authoritarian rulers have been members of minority ethnic groups and
often ruled with the backing of their ethnic kin or of ethnic coalitions in which their
own group was dominant. Therefore recent democratic and counter-authoritarian
processes in Africa are, in some instances, partly a backlash against perceived minority group dominance or majority-group underrepresentation in national politics. It is
not hard to see why the resulting political and constitutional reforms would give no
special solicitude to “minority” rights.
Gilbert’s strong insistence on textual “minority rights” as superior or preferable to
other forms of assuring or safeguarding the needs and interests of marginalized ethnic groups is also somewhat curious. Not only is there no empirical support for this
preference, it is also a particularly tough proposition to sustain in the African context.
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I•CON 11 (2013), 438–443
In fact, Gilbert would appear to concede as much, as when he observes that, notwithstanding the Democratic Republic of Congo’s exceptional adoption of a “full minority
rights agenda” in its constitution, the “constitutional guarantee for minority rights
has so far remained meaningless.”
As a general matter, state actors and other duty-bearers whose conduct, attitudes,
and practices rights may seek to modify do not voluntarily abandon their old ways
merely because such rights have been inserted in a constitution. The burden of initiating the actions necessary to get state actors to modify their behavior in compliance with newly guaranteed constitutional rights typically falls on the shoulders of
the putative right-holder. Therefore, unless minority rights-beneficiaries are eager and
able to press enforcement of their rights through the appropriate state institutions, the
mere grant of constitutional rights will not necessarily lead to behavior modification
on the part of state actors.
Legal rights are, in fact, chronically under-enforced in Africa. This applies as much
to constitutional rights, as it does to statutory, tort, or contract rights. Many of Africa’s
modern constitutions contain the full panoply of modern human rights, most of them
modeled after modern international human rights instruments. Yet most putative
right-holders in Africa do not assert their rights vis-à-vis offending state actors or other
duty-bearers, giving rise to what may be described as a case of “rights in search of
plaintiffs.” Chronically low levels of legal literacy, severe access-to-justice constraints,
unavailability of pro bono legal representation, and an underdeveloped tradition of
public-interest lawyering are among the reasons why Africa’s rights-holding citizens
rarely press their claims in court. There is no reason to expect that minority rights
provisions in African constitutions will fare significantly better.
Even assuming that the textual grant of minority rights will, in and of itself, generate the necessary social activism and litigation from the constituency of rights-holders,
there is another layer of uncertainty to contend with, namely whether the courts and
other rights-enforcement bodies will, in the performance of their respective functions,
give appropriate effect and meaning to the promise embedded in the applicable text.
The point here is not to suggest that grants of constitutional rights are futile exercises.
It is intended only to emphasize that, in privileging a constitutional “minority rights”
approach to other possible ways of protecting and promoting the interests of minority
ethnic groups in African states, Gilbert assumes away too much: first, that the grant
of a right will be seized upon by the putative beneficiaries to press their claims against
the state; and second, that the courts and other state actors charged with the enforcement of rights will interpret and apply the textual provisions in ways that protect and
promote the interests of minority groups. In short, Gilbert fails to articulate the “theory of change” that underpins his strong belief in the superiority of a constitutional
minority rights. It is not clear that the conditions exist, either on the demand or the
supply side, for constitutional “minority rights” to be the mechanism for advancing
or protecting the interests of ethnic minorities in African states, as Gilbert suggests.
Gilbert also fails to explain why legal protection and promotion of minority rights
must necessarily take the form of a constitutional right. Of course, a constitution’s
character as the supreme law of the land gives rights protected under it a privileged
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443
place in the hierarchy of norms that comprise a legal system. But constitutional rights
are not easy to procure or safeguard, particularly in the absence of persistent civic
activism or a social movement to press the case for such rights. Moreover, a constitutional right, if rendered fatally impotent by retrogressive interpretation or jurisprudence from an apex court, might represent a greater setback for the social status of
the intended protected class than if such a right did not exist in the constitution at all.
At any rate, there is no reason why the absence of constitutional minority rights
must leave marginalized ethnic minorities legally unprotected. Gilbert does not say why
the rights he advocates for cannot be protected or promoted by statute. Indeed, the omission is not nearly as fatal as Gilbert assumes. Examples abound elsewhere of rights that
are not constitutionally guaranteed yet have been firmly secured for their beneficiaries
by statute. The United States Constitution, for example, does not guarantee the poor or
needy a right to governmental assistance, or economic and social rights.4 Yet, since the
New Deal era, generations of Americans have enjoyed access to various governmentprovided social safety nets (like social security benefits, Medicare, housing vouchers,
unemployment benefits, food stamps), all of them the product of federal legislation.
Legal protection of minority rights in African states, too, can emanate from statute.
There is also no evidence to suggest that the standard nondiscrimination and equality clauses in African constitutions are inadequate to protect or promote minority rights
and interests. These clauses typically prohibit discrimination on the basis of ethnic origin or identity. At the same time, many such clauses permit the state to address persistent social and economic inequalities through the adoption of “affirmative action”
policies and programs intended to benefit particular “marginalized” or disadvantaged
social groups and communities. For example, Ghana’s constitution qualifies its equality/nondiscrimination clause with a proviso that authorizes Parliament to enact laws
that are “reasonably necessary” to provide “for the implementation of policies and programmes aimed at redressing social, economic or educational imbalance in Ghanaian
society” or “for making different provision for different communities having regard
to their special circumstances . . . .”5 Acting under the authority of this clause, the
Government of Ghana has enacted legislation establishing a special development fund
for the exclusive benefit of the ethno-regional communities in the three northernmost,
and economically most disadvantaged and underdeveloped, regions of Ghana. Other
African states can do the same.
In short, while Jeremie Gilbert rightfully entreats African states to take ethnicity
and the legal status of minority ethnic groups seriously, the mechanism he proposes—
namely, constitutional minority rights—as the remedy best suited to protect and promote Africa’s minority groups is too passive and too limiting an instrument to do the
job, especially in the “ethnocratic” states of the Great Lakes Region. Not only are they
not sufficient, constitutional minority rights are, in fact, not necessary for the protection or promotion of the cultural, social, political or economic interests of Africa’s
ethnic minorities.
4
5
See Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
Constitution of the Republic of Ghana (1992), art. 17(4).