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Constitutional Entrenchment of Decentralization in Africa: An Overview of Trends and Tendencies

Published online by Cambridge University Press:  11 May 2018

Charles M Fombad
Charles M Fombad*
Affiliation:
University of Pretoria
*
charles.fombad@up.ac.za
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Abstract

The prominent place given to decentralization in the design of post-1990 African constitutions has been likened to a silent revolution. This is not surprising, for sharing power has been anathema to post-independence African leaders, who have striven to personalize power and concentrate it within a privileged clique in the capital city. This article assesses the nature and significance of the increasing trend in Africa towards constitutional entrenchment of decentralized forms of government. It examines the concept of decentralization and its manifestations in contemporary African constitutional design. It provides an overview of the extent of the constitutional entrenchment of decentralization in African practice, and then considers the rationale for, and possible implications of, this process. From an analysis and comparison of emerging trends, it argues that only a formally and constitutionally entrenched decentralization framework can ensure that the process is effectively implemented and is not dependent on the goodwill of the central government.

Keywords

Constitutionalismconstitutional entrenchmentdecentralizationdeconcentrationdevolution
Type
Research Article
Information
Journal of African Law , Volume 62 , Issue 2 , June 2018 , pp. 175 - 199
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Copyright
Copyright © SOAS, University of London 2018 

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Footnotes

*

Licence-en-Droit (University of Yaoundé), LLM, PhD (University of London), Diploma Conflict Resolution (University of Uppsala). Professor of law, Institute for International and Comparative Law, Faculty of Law, University of Pretoria, South Africa.

References

1 The expression was coined by Huntington, S in The Third Wave: Democratization in the Late Twentieth Century (1991, University of Oklahoma Press)Google Scholar. Similarly, L Diamond referred to it as a “second liberation” in “Developing democracy in Africa: African and international perspectives”, available at: <https://web.stanford.edu/dept/iis/democracy/Seminar/DiamondAfrica.htm> (last accessed 3 April 2018).

2 See Ivanyna, M and Shah, A “How close is your government to its people? Worldwide indicators on localization and decentralization” (2014) 8/3 Economics 1Google Scholar, available at: <http://dx.doi.org/10.5018/economics-ejournal.ja.2014-3> (last accessed 3 April 2018).

3 For example, African leaders throughout the continent have championed the centralization of governance under the pretext of promoting national unity among the diverse communities that were artificially forced together as states during the partitioning of the continent in 1884, maintaining that centralization facilitated shared political identity, nation-building and development. A key element of this was the widespread abolition, whether de jure or de facto, of multiparty systems in favour of a one-party system. It was argued that multi-partyism would promote division and tribalism and so waste national resources at a time when the newly independent states, under-resourced and comprising numerous culturally and religiously heterogeneous groups, needed to focus on national unity, political stability and rapid economic development. It was also argued that the one-party system was the only one that corresponded fairly with traditional African systems of governance.

4 See Olowu, D “The constitutionalization of local government in developing countries: Analysis of African experiences in global perspectives” (2012) 3 Beijing Law Review 42 at 44CrossRefGoogle Scholar.

5 See R Work “Overview of decentralisation worldwide: A stepping stone to improved governance and human development” (paper presented at the second International Conference on Decentralisation, Federalism: The Future of Decentralizing States?, Manila, Philippines, 25–27 July 2002), available at: <http://unpan1.un.org/intradoc/groups/public/documents/un/unpan030965.pdf> (last accessed 3 April 2018).

6 See Böckenförde, M A Practical Guide to Constitution Building: Decentralised Forms of Government (2011, International IDEA) at 1 and 44Google Scholar. Böckenförde points out that the term “level of government” refers to that part of the hierarchy of government through which state power is employed at a certain place in the vertical order of a country, such as the national, regional or local level. By contrast, “level of administration” is used to describe an institutional setting that provides administrative support for the implementation of governmental policies at these levels, whether regional or local. Unlike “levels of government”, “levels of administrations” are only responsible for implementing polices, not making them.

7 See B Baldi “Beyond the federal-unitary dichotomy” (Institute of Governmental Studies, University of California, Berkeley working paper 99–7, September 1999), available at: <https://zupdf.com/download/beyond-the-federal-unitary-dichotomy_pdf> (last accessed 3 April  2018).

8 See id at 1–3. Some of the factors that are mentioned include: the institutionalization of regionalism in certain countries; the combination of decentralization with asymmetrical federalism in some countries; and the adoption in some countries of public policies that have made federal and unitary systems increasingly similar to each other.

9 To cite a few global examples, some federal states, such as Malaysia, are highly centralized, while some unitary states, such as China, are highly decentralized. All that can be said is that federalism, depending on the form, may be considered a special case of decentralization.

10 King, P Federalism and Federation (1982, John Hopkins University Press) at 126Google Scholar.

11 For a full discussion of this, see Steytler, N and Visser, De “‘Fragile federations’ and the dynamics of devolution” in Palermo, F and Alber, E (eds) Federalism as Decision-Making: Changes in Structures, Procedures and Policies (2015, Brill Nijhoff) 79Google Scholar.

12 Id at 79–81.

13 Examples include regional systems where regions are provided for in the constitution but have no law-making powers (as in France) or where such law-making power is not exclusive (as in Italy); and regional systems where the arrangements have many federal characteristics but not enough to transform them into federations (as is the case with Scotland within the United Kingdom).

14 For example, D Treisman “Decentralization and the quality of government” (November 2000), available at: <http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.307.6477&rep=rep1&type=pdf> (last accessed 3 April 2018); in defining decentralization, Treisman identifies five different types: structural, decision, resource, electoral and institutional. Also see Work “Overview of decentralisation”, above at note 5.

15 See World Bank Decentralization Thematic Team “What is decentralization?”, available at: <http://www.ciesin.org/decentralization/English/General/Different_forms.html> (last accessed 3 April 2018); and Dubois, HF and Fattore, G “Definitions and typologies in public administration research: The case of decentralization” (2009) 32 International Journal of Public Administration 704CrossRefGoogle Scholar.

16 For example, one can talk of decentralization as an educational planning strategy and of decentralization in the forestry sector.

17 See generally E Africa “Development of the Africa local governance timeline: Decentralization study post-1980” (August 2012), available at: <http://www.elroyafrica.com/Portals/0/Documents/African%20Local%20Governance%20Timeline%20-%20Overview%20of%20Decentralisation%20in%20Africa%20-%20Since%201980s.pdf.pdf> (last accessed 3 April 2018).

18 See M Burgess “Federalism in Africa: An essay on the impacts of cultural diversity, development and democracy” (January 2012), available at: <http://docplayer.net/24010025-Federalism-in-africa-an-essay-on-the-impacts-of-cultural-diversity-development-and-democracy.html> (last accessed 3 April 2018). Burgess points out that not only were there pre-colonial indigenous federations, such as the Ashanti Federation, but there were also many types of federations during the colonial period. He divides them into four categories: federations established for imperial administrative and political convenience; those with imperial “motherland” linkages; those established for commercial enterprise and economic cooperation for strengthening intra-African trade links; and those established as part of the process of state-building.

19 Sec 1(2) of the 1993 Constitution of Lesotho (as amended in 2004) (Lesotho Constitution) states that “Lesotho shall be a sovereign democratic kingdom”.

20 Art 1 of the 2011 Moroccan Constitution states that Morocco is a constitutional, democratic, parliamentary and social monarchy.

21 Sec 1(1) of its 2005 constitution states that “Swaziland is a unitary, sovereign, democratic Kingdom” and, later in sec  2(2), that “[t]he King and iNgwenyama and all the citizens of Swaziland have the right and duty at all times to uphold and defend this Constitution”. Nevertheless, the powers conferred on the King in provisions such as secs 11, 64(1) and 65(4) place him above, rather than below, the constitution. See more generally Fombad, CM “The Swaziland Constitution of 2005: Can absolutism be reconciled with modern constitutionalism?” (2007) 23 South African Journal on Human Rights 93CrossRefGoogle Scholar.

22 See sec 106 of the Lesotho Constitution, which provides for local government; arts 63–67 and 135–46 of the 2011 Moroccan Constitution, which provide for regions and other lower units; and secs 218–26 of the Swaziland Constitution of 2005, which provide for local government.

23 For example, art 8 of the Angolan Constitution of 2010 states: “The Republic of Angola shall be a unitary state …” For other examples, see art 1 of the Burundi Constitution of 2005, art 1(5) of the Constitution of Eritrea of 1997 and art 1(1) of Constitution of Namibia of 1990.

24 In the case of the Botswana Constitution of 1966, local government authority is mentioned in provisions such as secs 9(2)(c), 12(2)(c), 13(2)(c) and 15(5) with respect to certain limitations provided for in the bill of rights. Similarly, several provisions in the Mauritius Constitution of 1968 also mention local government incidentally; for example, sec 34, dealing with disqualification for membership of the Assembly, excludes in sub-sec (1)(2)(b) a person who “is a public officer or a local government officer”.

25 See Sharma, KC “Role of local government in Botswana for effective service delivery: Challenges, prospects and lessons” (2010) 7 Commonwealth Journal of Local GovernanceGoogle Scholar, available at: <http://epress.lib.uts.edu.au/journals/index.php/cjlg/article/view/1908> (last accessed 3 April 2018); and M Ashley “Mauritius: A review of the local government structure, functions and legislation” (1 February 2017), available at: <http://www.clgf.org.uk/default/assets/File/Country_profiles/Mauritius_report_Ashley_Feb_2007.pdf>  (last accessed 3 April 2018).

26 See for example: art 102 of the Central African Republic (CAR) Constitution of 2010; art 112 of the Constitution of Gabon of 1991 (as amended in 2011); art 98 of the 1991 Constitution of Mauritania (as amended in 2012); and art 102 of the Constitution of Senegal of 2001 (as amended in 2010).

27 For example, see sec 106 of the Lesotho Constitution and art 3 of the Liberia Constitution of 1986.

28 See for example art 16 of the 1996 Constitution of Algeria (as amended in 2016); art 252(4) of the Cape Verde Constitution of 1980 (as amended in 1982); art 55 of the 1996 Constitution of Cameroon; art 102 of the CAR Constitution of 2004 (as amended in 2010); and art 174 of the Constitution of the Republic of Congo of 2001.

29 Despite their appearance in many African constitutions, the concept of un-amendable constitutional provisions, or so-called perpetuity clauses, is an illusion. See further Fombad, CM “Some perspectives on durability and change under modern African constitutions” (2013) 11/2 International Journal of Constitutional Law 382 at 382CrossRefGoogle Scholar.

30 For example, art 52(1) of the Ethiopian Constitution of 1995 provides: “All powers not given expressly to the Federal Government alone, or concurrently to the Federal Government and the States are reserved to the States.” By contrast, while the Nigerian Constitution of 1999 clearly specifies the states that comprise the federation (and even protects against “gerrymandering” in sec 8, which provides a complex procedure for the establishment of new states), sec 7(1) makes the status of local governments depend on state legislation that will determine their “establishment, structure, composition, finance and function”.

31 For example, under the South African Constitution the division of powers between the national government and local government is set in secs 44 and 156, as well as schedules 4 and 5; nevertheless, the central government is dominant. This is so for several reasons, in particular because it can: override a decision on any matter on the concurrent list; legislate in matters within the provincial list in schedule 5; and intervene under sec 44(2) in cases of necessity (national security, maintenance of economic unity, uniformity of national standards and minimum standards, or prevention of action prejudicial to another province or the nation as whole). See arts 25–26 and 177–84 of the Sudanese Constitution of 2005. For some examples under unitary constitutions, see arts 217–20 of the 2010 Angolan Constitution; arts 260–64 of the 2005 Burundian Constitution; arts 105–18 of the Guinea Bissau Constitution of 1996; secs 124–26 of the Tanzanian Constitution 2014; and secs 264–79 of the Zimbabwean Constitution.

32 For example, see arts 277–82 of the Kenyan Constitution; secs 105–06 and 157–59 of the South African Constitution; and secs 268–72 and 277–78 of the Zimbabwean Constitution.

33 This is commonly the case with francophone African constitutions, for example art 151 of the 1990 Benin Constitution.

34 See for example arts 57–60 of the Cameroon Constitution of 1996 and, to some extent, arts 242(a) and 243 of the Ghana Constitution of 1992.

35 See also arts 176(2)(f) and 198 of the Ugandan Constitution of 1995; secs 227–28 of the Zambian Constitution of 2014; and sec 266 of the Zimbabwean Constitution.

36 See for example arts 199 and 201 of the Angola Constitution of 2010; arts 263–64 of the Burundi Constitution of 2005; and art 110 of the 1990 Namibian Constitution.

37 For example, see art 55(3) of the Cameroon Constitution of 1996; arts 207–08 of the Chadian Constitution of 1996; art 88 of the Djibouti Constitution of 2010; and arts 134–36 of the Guinean Constitution of 2010.

38 See for example arts 141, 249–50 and 277–80 of the Mozambican Constitution of 2004.

39 See for example arts 255–66 of the 1992 Constitution of Ghana.

40 See arts 200–24 of the Kenyan Constitution; secs 213–30A of the South African Constitution; secs 168 and 175–79 of the 2011 Transitional Constitution of the Republic of South Sudan; arts 178A and 190–97 of the 1995 Constitution of Uganda; and secs 161–64 of the 2016 Constitution of Zambia.

41 See for example art 255 of the Cape Verde Constitution of 1992; art 11 of the Comoros Constitution of 2001; arts 95–100 of the 1995 Ethiopian Constitution; arts 240(2)(c) and 252(2) of the 1992 Ghanaian Constitution; secs 149–50 of the Malawi Constitution of 1994; secs 162–64 of the 1999 Nigerian Constitution; and arts 185, 193–96 and 200 of Sudan's Interim Constitution of 2005.

42 An example of this is Botswana, which still operates under its 1966 independence constitution.

43 See for example art 112 of the 1991 Gabonese Constitution; arts 97–98 of the 1992 Malian Constitution; and art 102 of the 2001 Senegalese Constitution.

44 See for example art 118 of the 2014 Egyptian Constitution; arts 141–42 of the Moroccan Constitution of 2011; and arts 131–42 of the Tunisian 2014 Constitution.

45 See Fombad, CM “The evolution of modern African constitutions: A retrospective perspective” in Fombad, CM (ed) Separation of Powers in African Constitutionalism (2016, Oxford University Press) 13Google Scholar.

46 On the invisible constitution, see Tribe, L The Invisible Constitution (2008, Oxford University Press)Google Scholar.

47 See arts 242(d) and 270–77 of the Ghanaian 1992 Constitution; secs 44–53, 92 and 103–04 of the Lesotho Constitution of 1993; art 246 of the Ugandan Constitution of 1995; arts 164–72 of the Zambian Constitution of 2016; and secs 280–87 of the Zimbabwe Constitution.

48 See the provisions cited in note 47 above.

49 See for example arts 213 and 223–24 of the Chadian Constitution of 1996; art 207 of the DRC Constitution of 2006; art 118 of the Mozambican Constitution of 2004; art 102(5) of the Namibian Constitution of 1990; arts 166–67 of the Interim Constitution of South Sudan of 2011; secs 227–35 of the Swaziland Constitution of 2005; and art 143 of the Togolese Constitution of 1992.

50 See for example secs 58–59 of the Gambian Constitution of 1997 and sec 146(4) of the Malawian Constitution of 1994.

51 See further Fombad “Some perspectives on durability”, above at note 29.

52 For an example of such an obligation, see sec 2 of the South African Constitution, which states that “this constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled” (emphasis added).

53 Art 27(8) states: “In addition to the measures contemplated in clause 6, the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

54 See “Kenya court orders Parliament to pass gender quota” (29 March 2017) news 24, available at: <http://www.news24.com/Africa/News/kenya-court-orders-parliament-to-pass-gender-quota-20170329> (last accessed 3 April 2018).

55 For example, under the Kenyan Constitution this is limited to art 158(1), which provides that the director of public prosecutions may be removed from office for, inter alia, non-compliance with chapter six of the constitution.

56 Zimbabwe Constitution, sec 324.

57 See, generally, Fombad, CM The Implementation of Modern African Constitutions. Challenges and Prospects (2016, PULP)Google Scholar.

58 In this regard, art 22(2) of the Kenyan Constitution states that proceedings for violation of the constitution could be instituted by: “(a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members”. Art 22(3) goes even further, limiting formalities relating to proceedings to a minimum and providing that the court shall, “if necessary, entertain proceedings on the basis of informal documentation” and that “no fee may be charged for commencing the proceedings”. A similar approach is provided for under sec 85 of the Zimbabwe Constitution. The 2010 Angolan Constitution, in arts 73–75, also appears to broaden the rules of locus standi, but in language that (along with arts 228 and 230, which restrict access to certain specified personalities) casts serious doubt on its effectiveness.

59 For example, only certain aspects of part X of Cameroon's 1996 Constitution (dealing with decentralization) have been implemented, in initiatives begun in 2004 and 2008. The decentralization provided for thus exists more on paper than in reality.