Aspirational Principles in African Federalism: South Africa, Ethiopia and Nigeria Compared
Pages | 362-382 |
Date | 01 August 2021 |
Published date | 01 August 2021 |
DOI | 10.3366/ajicl.2021.0371 |
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,
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’
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.
Aspirational values may be embedded in the preamble or in other parts of the constitution (such as a Bill of Rights),
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.
Some scholars have contended that federalism provisions can be added to the aspirational (or organic) features of a constitution:
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.
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).
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’
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.
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).
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.
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
South Africa is not a fully fledged federation but is usually regarded as a hybrid or quasi
To continue reading
Request your trial