Aspirational Principles in African Federalism: South Africa, Ethiopia and Nigeria Compared

Pages362-382
Date01 August 2021
Published date01 August 2021
DOI10.3366/ajicl.2021.0371
INTRODUCTION

Finding the appropriate balance between diversity and social cohesion is a common concern in constitutional design, particularly in societies divided along ethno-linguistic and religious lines. Constitution drafters have often addressed this quest through federalism: in fact, federal arrangements seek to facilitate a balance between unity and diversity to curb tensions typical of highly diverse societies.

Aside from designing the institutional architecture and power division within a state, constitutions are also repositories of shared values, as they may entrench fundamental principles guiding public and private behaviours and to which citizens aspire. These aspirational elements can express the goals and dreams for the future of a country,1 seeking to unite people towards some shared aims, or pursuing the integration of the state, meaning the understanding of the state as substance and realisation of its values. As Grimm posits, ‘[when] we speak of the integrative function of constitutions, we are referring to the extra-legal effects of a legal object […] The effect – integration – is an actual process by which the members of a polity develop a sense of belonging together […].’2

Aspirational values are thus intimately connected to the very idea of constitution and constitution making, as constitutions should reflect the ‘highest aspirations and most deeply held values’3 of the people, as opposed to ordinary legislation that reflects the ‘short-sighted bargaining, fears and passions of elected representatives’.4 In this sense the effectiveness of aspirational principles is considered a value guaranteeing the historical continuity as part of the core values of a given country.

Mortati's insights over the distinction and relationship between formal and substantial constitution are also helpful. In fact, aspirational principles are part of the formal constitution, but public policies must be in line with them and aim at pursuing given aspirations. Aspirational values are the basis of the political union and the real constitution may be addressed as the dynamic relationship between the social context and the foundational aspirational values; it brings us to the degree of positive interaction between constitutional provisions and the community of a given country.5 One problem that exists in the countries studied in this article (as in many other post-colonial states) is that they have often ‘failed to live up to these founding aspirations’.6

Aspirational values may be embedded in the preamble or in other parts of the constitution (such as a Bill of Rights),7 and may contribute to paint the ‘grand identitarian narratives’ of a constitution.8 But regardless of their exact positioning, modern constitutions ‘explicitly or implicitly outline the future goals of the polity by identifying an aspirational vision for the polity itself’.9

Once entrenched in a constitution, principles and values become aspirational in the sense that they may direct policies to foster equality, eliminate obstacles or require the different tiers of government to collaborate harmoniously in the performance of their respective functions.10 As noted, the need to reconcile diversity and social cohesion can thus also be addressed through the study of the aspirational values embedded in a constitution.

Some scholars have contended that federalism provisions can be added to the aspirational (or organic) features of a constitution:11 this is probably because federalism incarnates an ideal way of sharing powers and responsibilities to more effectively respond to citizens’ and state/public needs, to find the perfect balance between diversity and social cohesion and, eventually, the way to peace.12 However, besides federalism as a global concept, there are other values embedded in federal constitutions that are clearly marked by an aspirational nature.

Aspirational elements can be found both in extra-constitutional documents (such as judicial rulings) and in the constitutional text itself, most commonly in constitutional preambles and directive principles.13 This article focuses on the aspirational elements present in the constitutional text, and its objective is to offer a comparative account of the three most important federations in Africa to assess how their constitutions propose to reconcile diversity and social cohesion through aspirational principles related to federalism. The following principles will be examined: solidarity between different communities and cooperative government in South Africa, ethnicity as a foundational value in Ethiopia and the federal character in Nigeria.

From a methodological standpoint, the choice to focus on these three countries reflects the fact that, in recent years, federalism has played an increasingly significant role in Africa to tame – rarely successfully – the ethnic and non-ethnic tensions that plague most countries in the continent. While South Africa, Ethiopia and Nigeria can be regarded as the most prominent African federal/decentralised systems, federal/devolutionary arrangements have also been recently introduced in the Comoros (2001), Sudan (2005), the Democratic Republic of Congo (2006), Kenya (2010), South Sudan (2011) and Somalia (2012).14 Furthermore, the constitutions currently in force in the three countries analysed here are the product of the mid- and late-1990s wave of constitutional drafting and represent attempts to reconcile profoundly embedded ethnic diversity with good and effective governance, although they have embraced different paths and approaches to do so. Likewise, these three countries are struggling to maintain this delicate balance between what is enshrined in the constitution and actual, real life. In our opinion, these three countries represent ideal cases to test the reconciliation of diversity and social cohesion as addressed by aspirational elements.

As will be better explained in the remainder of the article, South Africa, Ethiopia and Nigeria have all chosen varieties of constitutional federal arrangements to better deal with their numerous internal cleavages, although South Africa might be considered a quasi-federal or regional state (a scheme usually referred to as cooperative government). Ethiopia and Nigeria are, according to their constitutions, fully fledged federations, but they function in practice in a very centralised manner, a legacy of the military rule that has so significantly marked their most recent history. Being fairly young, the three constitutions herewith discussed are rather complex legal texts that condense the essence of modern constitutionalism, although there is always the risk that they are considered ‘sham’15 because they do not reflect the actual practice in real life (except perhaps for South Africa).

By looking at how South Africa, Ethiopia and Nigeria reconcile diversity and social cohesion through some specific federalism-based aspirational elements enshrined in their constitutions, this article contributes to the literature on comparative constitutional law and theory and comparative federalism, by adopting mainly a textual, doctrinal/analytical and explorative approach of the constitutional texts in question.

SOUTH AFRICA: SOLIDARITY AMONG COMMUNITIES AND COOPERATIVE GOVERNMENT South Africa: A Brief Historical and Conceptual Overview

As are other African countries, South Africa is deeply diverse and multi-ethnic. The majority of its 54 million inhabitants are Africans (about 80.2 per cent of the population), followed by Coloureds (or mixed-race people, comprising about 8.8 per cent of the population), whites (about 8.4 per cent) and Indians or Asians (about 2.5 per cent).16 Article 6(1) of the South African Constitution recognises eleven official languages: among them, IsiZulu, IsiXhosa and Afrikaans are the most spoken.17

The first European settlers in South Africa were the Dutch, who established themselves in the Cape in 1652. During the nineteenth century, the British instituted two colonies (Cape and Natal) and two Boer republics which, after the Boer War (1899–1902), also became British colonies. Modern South Africa was formed in 1910 with the fusion of the four British colonies to become the Union of South Africa.18 During the 1950s, with the advent of National Party rule, an institutionalised form of racial segregation – apartheid – emerged and lasted until the liberation movements of the early 1990s:19 its purpose was to ensure ‘white survival and hegemony by dividing the non-white population along racial and even ethnic lines’.20

Democratic South Africa, a country willing to leave behind the legacy of apartheid, was established in 1994 and the present constitution – building upon the 1993 interim constitution – was enacted in 1996.21 It emphasises values such as equality, democracy, national unity and a system committed to a non-racial and non-ethnic society.22

South Africa is not a fully fledged federation but is usually regarded as a hybrid or quasi-federal state building upon principles of German constitutionalism such as Bundestreue and cooperative federalism (see infra).23 The present model of cooperative government – as it is labelled in South Africa – is the result of a compromise between the African National Congress (‘ANC’, the major political party) which during the constitution-making process sought to create a strong centre, and local leaders who hoped for a fully fledged federal system to accommodate ethnic groups and limit the powers of the centre.24 The rejection of federalism in both the interim and the final constitution can be explained by the fact that, during the racial regime, the federal idea was associated by the majority of the population with the segregation policies. Besides that, the ANC's vision of the state was rather centralised, even though the party was aware that a degree of decentralisation should be included in the new constitutional framework.25

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