Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Domesticating the Leviathan: Constitutionalism and Federalism in Africa

Document Cited in Related
Vincent
Date01 May 2016
Author
Published date01 May 2016
DOI10.3366/ajicl.2016.0153
Pages272-292
INTRODUCTION

The fall of the Berlin Wall in November 1989 had a profound impact on African countries and their form of government. Autocratic rulers, propped up by the Cold War superpowers, lost their utility for their erstwhile sponsors and a vocal citizenry sought new ways of ordering their countries. The object was to domesticate the Leviathan – the all-dominant executive, be it one-party states, presidents-for-life, military or autocratic rule, kleptocrats or petty tyrants in many African countries. The centralisation of the African state did not, as promised, lead to development, but to its opposite – conflict and skewed underdevelopment.1

Perhaps the most dramatic event in this wave of constitution-making occurred on 1 February 1990, when South Africa's autocratic white minority government, responding directly to the fall of the Berlin Wall, announced the end of apartheid and initiated a process of peace-making that eventually led to a negotiated democratic constitutional order. This order had two main strands: the one entailed a liberal democracy of limited government and a system of checks and balances controlling power at the centre, while the other dispersed power in a limited manner vertically between the centre and sub-national governments. In other sub-Sahara African countries the process was very similar. Many liberal democratic constitutions were adopted which sought to place sovereignty in the hands of the people through regular elections and the protection of human rights. Central power was dispersed horizontally through the separation of powers and in nine countries over the next 20 years federal arrangements became part of the constitutional order to ensure a more inclusive distribution of powers and resources, while decentralisation to local government became a policy aim in most.

More than two decades later the promise of the 1990s remains only partially fulfilled; although multi-party elections have become the norm, including a small number of regime changes, it is claimed that many countries have remained ‘illiberal democracies’2 or ‘semi-democracies’.3 Human rights are not respected or protected by independent judiciaries and centralised governments continue on their predatory path. Federal arrangements have not been reflected in a federal polity and culture, and decentralisation through local government remains at best a form of deconcentration. Overall, the domestication of the African Leviathan has been uneven at best.

How do we make sense of the fact that the liberal constitutions did not change the nature of the state in many countries and federal systems have not emerged where promised? Why the gap between the constitutions on paper and constitutionalism, the practice of limited government? Why have federal arrangements not delivered on their promise? In order to explain why constitutional reforms have not delivered on their promises, this article moves up the ladder of abstraction and examines the key concepts of state, sovereignty and legitimacy. It will be argued, first, that Thomas Hobbes’ The Leviathan captures the challenge that post-1989 constitution-makers faced in confronting the highly centralised state in Africa. Second, the post-1989 constitutions by and large reflected a new and different constitutional paradigm of horizontally and vertically divided power. Third, the new constitutions adopted did not, however, fundamentally change the exercise of sovereignty and thus by and large failed to domesticate the Leviathan. Fourth, while some attribute the failure of constitutional orders to a lack of legitimacy, a separate but interrelated argument is that the constitutions are yet to be a social compact of competing social forces that have the interest and capacity to ensure compliance. Constitutions are there, constitutionalism is yet to be consolidated. Finally, the development of constitutionalism and federalism will depend on addressing these very causes.

Writing about constitutional practice in Africa over the past two decades in general terms should be approached with caution, as the subject matter presents a diverse set of experiences, ranging from fragile or failed states attracting most of the UN peacekeeping operations, to functioning democracies such as Botswana, Namibia, South Africa, Ghana, Benin and Liberia. Yet many scholars have been able to make some generalised comments which, although not applicable to every country all of the time, highlight some common patterns of governance.

 THE LEVIATHAN IN AFRICA: THE MONOLITHIC STATE

Most modern theories of the state start with Thomas Hobbes and his Leviathan.4 Hobbes’ primary question was how order could be established in a given locality to end the war of all against all. His answer was the establishment of the ‘commonwealth’, which could provide peace and security, but only if there is ‘the unity of power’ exercised by the ruler, the Leviathan.5 Sovereignty resides in the ruler who has ‘the exclusive, unlimited, inalienable, and indivisible powers of rulership’.6 A danger which Hobbes identifies in the Leviathan is that ‘the sovereign power may be divided’: ‘For what is it to divide power of a commonwealth but to dissolve it; for powers divided mutually destroy each other.’7 For the commonwealth to be united, Hobbes posited that there must be one system of law and that the source of the law as well as its enforcing agent should be one and the same, hence requiring the unification within the ruler of lawmaking, enforcement and adjudication. Moreover, as the source of law, the sovereign cannot be bound by the law but stands above it. These formed the philosophical foundations of the modern state in Europe as it expanded in reach and range – both in principle and in real power – during the seventeenth and eighteenth centuries.

Hobbes’ ideas had formed the philosophical foundations of a strong state and absolute monarchy, but this idea of a politically undivided commonwealth later on became the basis for French revolutionary jacobins who sought to establish a centralised political system resting on undivided popular sovereignty. As popular sovereignty replaced the ruler as the sovereign, the linguistic, ethnic and historical coherence of the people first became a principle, and later through state-building a reality as well.

The ruler–ruled relationship, Vincent Ostrom points out, is profoundly unequal, raising the question of whether there are any constraints upon the Leviathan.8 Although a ‘social contract’ established the Leviathan, the latter owes no debt of accountability to the citizens, rendering the citizen a mere subject for whom ‘[t]he price of peace is then deference and obedience to the authority of the absolute sovereign. Obedience is the essential virtue for good administration in a Hobbesian commonwealth.’9

For Hobbes, the absolute rule of the commonwealth was not, as the name suggests, to be equated with arbitrary rule or partisanship. The safety of all the people was entrusted to the sovereign: ‘safety’ does not mean ‘a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger, or hurt to the commonwealth, shall acquire to himself’.10 This required equity from the sovereign. However, whether or not equity was indeed meted out to all was not up for discussion with the sovereign. One of the dangers that may weaken the commonwealth, Hobbes warned, is ‘that every private man is judge of good and evil actions’, which may lead him to ‘dispute the commands of the commonwealth; and afterwards to obey, or disobey them, as in their private judgments they shall think fit’.11

Whether the absolute ruler will succeed in ensuring equity is questionable, as ‘the more authority is unified, the more irresponsible it becomes’.12 Moreover, the accumulation of all powers in the hands of one or a few ‘will lead to tyranny’13 with disastrous consequences for society.14 In the event that the Leviathan offended the laws of nature (equity), Hobbes foresaw this ‘injustice’ being punished by ‘the violence of enemies’ and the ‘negligent government of princes’ being met with ‘rebellion, and rebellion with slaughter’.15 Ostrom reads the link between rebellion and slaughter as the inevitability that successful rebels who have used the sword in their rebellion will continue using it as their instrument of governance: ‘rebels create their own autocracy to exercise the prerogatives of rulership’.16

In the West, Hobbes’ Leviathan had become the foundation of the modern central state. The colonial structures of the European powers transplanted the responsibility of providing peace and security to the empire, thereby by extension to the colonial state.17 The colonial state personified the Leviathan, but, serving only the interest of the empire, lacked the equity in administration. The design of the colonial ‘constitution’ established a single source of power: the colonial administration in the person of the governor was subordinate only to his imperial master.18 As the sole source of power, the colonial state also sought to destroy all competing locations of power and brought traditional authorities into its service. But the powers of the colonial state lacked the reach and range of the European Leviathan while the traditional authorities had lost their political powers. The monolithic state was there in principle, but it could not provide peace and security. The original social contract defining Hobbes’ Leviathan, i.e. granting legitimacy to absolutism in return for stability, was absent in Africa. All that was required of the population was obedience to the Leviathan and its laws.19

The impact of the colonial state – unified, monolithic and requiring absolute obedience – has been profound in shaping the post-independence state, this despite the colonial parting gift: a constitution entailing democracy, limited government with a bill of rights, separation of powers and, in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT