Kelvin Vries, DPhil law, School of Law, University of Oxford.

Cite: Kelvin Vries, Do (il)legitimate Constitutions Endure? Insights from the African Experience, Global South Network Blogs, https://globalsouthnetwork.com/do-illegitimate-constitutions-endure-insights-from-the-african-experience/

How long should constitutions endure for? Constitutional endurance refers to the life expectancy of a constitution, i.e., how long it lasts between its adoption and its suspension or its replacement by a new constitution. Longevity is often cited as a main feature of a constitution. One comprehensive study however shows that ‘most constitutions die young and only a handful last longer than fifty years.’

How long constitutions should last is a recurring debate among constitutional scholars recently revived by the Comparative Constitution Project (CCP) – a database of the world’s constitutions. Prior to the adoption of the U.S Constitution, Thomas Jefferson argued that constitutions should be renewed every 19 years as to avoid them becoming ‘an act of force and not of right.’ In disagreement, James Madison favoured a constitution that would endure for generations to come in order to, among other reasons, ensure ‘public tranquillity’. If endurance is indeed a measure of constitutional performance, the U.S constitution is by far the most successful constitution in contemporary history, having been enforce for 235 years. But does endurance tell the entire story?

It is commonly accepted that a constitution that lacks legitimacy is unlikely to endure. ‘The constitution is not the source, but the object, of legitimacy. Creating legitimacy does not mean having legitimacy.’ One important source of legitimacy for African constitutions is public participation. Africans have historically been excluded from participating in the making of fundamental law, subjected to a century of colonisation, inheriting ‘imposed’ constitutions negotiated among elites, and thereafter plagued by authoritarian regimes that frequently and exclusively abrogated old constitutions and promulgated new ones.

It is only beginning in the 1990s, where ‘the people’ began to meaningfully participate in constitution-making in many parts of the continent. One study which examined popular participation in the making of 84 African constitutions found that between 1975 and 2003, participation by ordinary people, that is ‘consultation in remote rural areas’ was undertaken 41.3% of the time in Africa, faring better than in all other regions, apart from the Americas. Much of this progress can be associated with the constitutional developments of the 1990s. In Francophone Africa, the so-called conferences nationales (national conferences) followed by a referendum, became the popular route for constitutional change.

Constitutional legitimacy gives the constitution moral and political authority and in turn generates obedience. The assumption, therefore, is that constitutions with (procedural) legitimacy endure. In Africa, this seems to be the case on average. From the 242 constitutions promulgated in Africa since the 19^th century (by 2022), two thirds of them were promulgated during the ‘first wave’ of constitution-making – covering the period from 1954-1989. Using 118 constitutions enacted in 45 countries, the average lifespan of first wave constitutions in Sub-Saharan Africa is 11.8 years. – falling far below the global average of 19 years. Figure 1 below shows the lifespan of first wave constitutions. Note, the 12 interim constitutions promulgated during this period are excluded in the calculations as expectations of durability and perpetuity are generally absent from constitutions that are temporary in their entirety, potentially skewing calculations of endurance.

Source: Constitute Project.

In the post-colonial era, ‘the general trend was to restrict the creation and amendment of constitutions to a handful of recognised leaders and their parties.’ Constitutional change was controlled by a single party in parliament, or by constitutional commissions established by the ruling party, president, or alternatively military and transitional governments. Constitution-making and amendment was hijacked by powerful executives with the backing of single or dominant parties in parliament, in most cases reserving constitutional change for national elites. The lack of endurance of the first wave can thus in part be explained by the dampened procedural legitimacy of these constitutions.

Not all first-wave constitutions were short-lived. Kenya’s independence constitution endured for 47 years, only replaced in 2010 by a new fundamental law. It has been argued that ‘imposed constitutions’ can be overcome through constitutional amendment. The ‘degree which something is imposed on someone depends on their ability to alter it. The capacity to change the constitution may negate imposition, or rather remedy its legitimacy flaw.’ In 1965, the Kenyan Constitution was amended to reduce the majority required for constitutional amendments from 90% in the Senate and 75% in the House of Representatives, to 65% in both Houses. This allowed constitutional amendments to be passed more frequently, with the Constitution being amended twenty-eight times between 1964 and 1997.

Though there is a good case to be made on how constitutional amendments may overcome imposition and cultivate ownership over the constitution, Muigai is of the view that in the Kenyan case, the use of constitutional amendments, intended to make the constitution more autochthonous and thus more legitimate, were in practice ‘opportunistic, self-serving and manipulative of the constitutional order, with the intention of serving partisan and parochial politics.’ This much is true for other parts of Africa during the early post-colonial period with a few exceptions.

The 1966 Independence Constitution of Botswana is Africa’s most enduring constitution, having been promulgated 57 years ago. The Constitution has been amendment twenty times, but none of the amendments have significantly reconfigured the basic framework and structure of the constitution. It has cultivated one of the leading democracies in Africa, in spite of the de facto one-party regime that existed once upon a time. The country hosting the second most enduring constitution in Africa, Mauritius, is similarly celebrated for its relatively high practice of democracy.  In these two cases, legitimacy, at least in part is sourced from functionality. Here legitimacy flows from the constitution’s ability to fulfil its basic function, that is a power map that limits governments, protects fundamental rights and manages disagreement among constitutional subjects.

But a constitution can also endure because it has ‘no element of sanctity’ and thus irrelevant. One of the longest enduring constitutions in Africa is the 1972 Constitution of Cameroon. Among the basic principles listed in Article 1 of the constitution are democracy, human rights, and the rule of law. Yet, Cameroon is also host to one of the longest sitting dictators in Africa, President Paul Biya who has been in power since 1982. The Cameroonian illustrates that without context, endurance does not always translate into constitutional legitimacy.

Since the 1990s, African constitutions are made less frequently and are more enduring. Of the 61 constitutions promulgated in 39 Sub-Saharan countries since 1990 (excluding 11 interim constitutions), the average lifespan is 16.2 years. Figure 2 below shows the endurance of second wave constitutions.

Source: Constitute Project.

Overall, the high degree of participation in the drafting process of constitutions can have varying effects and does not in itself constitute a ‘successful’ constitution-making process nor does it cement the legitimacy of the constitution. The National conferences of the 1990s for example, had varying implications in Francophone Africa. In Congo Brazzaville, ‘the organization and tone of the conference intensified ethnic conflict and distrust among political elites, precipitating civil war’ and in Chad ‘the 1996 conference helped worsen a Francophone/Arab rift.’

Even in jurisdictions which enjoy high procedural legitimacy like in South Africa, when the substance of the constitution is regarded as unable to address domestic social and political problems, the overall legitimacy of the constitutive document becomes increasingly dampened. As Hartwig states, ‘[l]legitimacy cannot be limited to a formal aspect, but rather must live up to a minimal substantive criteria, such that the procedural mechanism of legitimacy gets a substantive value.’

Public participation has nevertheless become an unavoidable source of legitimacy for African constitutions, to such extents that incumbents have in some cases (successfully) rigged the turnout and result of constitutional referenda to generate a perception of legitimacy. As Contiades & Fotiadou have argued, it may be that what matters equally to the fact of popular participation is the perception thereof.

Indeed, constitutions may have several sources of legitimacy. The making of the South African Constitution has been celebrated as triumph for public participation, generating procedural legitimacy. The legitimacy of independence constitutions in Africa was rooted in the achievement of sovereignty and self-determination. They however did not endure, purported as unable to resolve African problems and thus suffering from a deficit in substantive legitimacy. In the case of Botswana, the constitution is largely seen as legitimate and has endured because it works, it has shown to serve its functional purposes. Many other constitutions are legitimised only by international standards, lacking any internal measures of legitimacy.

What the African experience shows us is that generally (procedural) legitimacy produces enduring constitutions. This much is evident from the stark contrast in the average life of first wave and second wave constitutions. But is also shows us that legitimacy can be lost, and must thus be reinforced, or sourced from other wellsprings. If the content of a constitution is unable to respond to context for example, it may not matter for long, how inclusive the constitution-making process may have been.

Perhaps most significantly, endurance does not tell the entire story. ‘Frequency of amendment is considered to signify things about the Constitution per se, often seen merely as a number detached from the historical, political and cultural context in which formal amendment takes place.’ Without context, we are vulnerable to hasty conclusions about what endurance may infer. In Africa, state-building, divided societies, and the pursuit for legitimacy have all shaped constitutional change, making it more frequent and volatile and producing fragile constitutions. In this context, the rise in the average lifespan of African constitutions in a span of 50 years is therefore nevertheless a remarkable constitutional achievement.

On the very least, the empirical evidence informs us that the defeatist appraisal commonly held towards African constitutions is perhaps over-hasty, and that the world has much to learn from the African experience.

The findings represented in this paper are part of ongoing research. Any errors identified are unintentional and the author welcomes constructive feedback to enhance the accuracy and reliability of the content.

Kelvin Vries is a DPhil Law Candidate at the University of Oxford. His research interests lie mainly in constitutional law and human rights, with a focus on African jurisdictions. He has a LLM in Human Rights and Democratisation from the University of Pretoria (distinction), and a LLB from the University of Namibia. His thesis at Oxford examines the emerging judicial doctrines on constitutional amendment in Benin, Kenya and the African Court of Human and Peoples’ Rights.

Throughout his career, Kelvin has interned at several human rights institutions including the Law Reform and Development Commission of Namibia, Southern African Litigation Centre, and Children Rights Clinic at the Centre for Human Rights. Most recently, Mr Vries concluded an internship at the International Bar Association London, as part of the Human Rights Institute. He also conducts research in his spare time, having helped develop a paper seeking to understand why African countries that have abolished the death penalty in practice, have not done so in law.

In 2021, Mr Vries contributed two chapters to a book project by the Supreme Court of Namibia reflecting on the Courts 30 year jurisprudence. The first chapter, co-authored with Yvonne Dausab assesses the court’s commitment to transformative constitutionalism, and the second envisages an alternative jurisprudence in the adjudication of equality in Namibia. Mr Vries also regularly writes opinion pieces, most commonly in Namibian newspapers, but has also written on the Oxford Human Rights Hub.

He is currently the director of development of the Oxford Law Black Alumni, and the BAME representative of the St Peters MCR.