Carlo Fusaro

carlo.fusaro@unifi.it

In English

Constitutionalism in Africa and Constitutional Trends (2005)

Brief Notes from a European Perspective

 

Carlo Fusaro©

 

Abstract: Legal experiences have been transplanted in one direction only unto now. By reading the documents and the literature produced within the frame of the most recent constitutional efforts in Africa, and in South Africa in particular, I have been persuaded that the time has come to restore some balance in the process of constitutional circulation. In fact, constitutionalism appears to have become an integral part of the African political reform process and it has started playing a role which appears strikingly similar to the role which constitutionalism played in Europe when it became the claim, the demand of the bourgeois revolutionaries struggling against tyrants and absolute monarchs two hundreds years ago and after. Within the frame of this recent trend, the South African case is truly outstanding by all means. The main conclusion of the paper is that by moving in this direction African constitutionalism has fully joined the mainstream of constitutionalism world wide and it has started offering a genuine and original contribution to its development. Starting from an Italian-European point of view, I will try to show some of the similarities which assimilate the African  experiences to what has occurred in consolidated democracies and in Italy, for instance: by doing so I feel the readers from abroad and from Africa in particular might derive some reason for confidence in spite of the great difficulties they are facing. Finally I will try to point out some of the lessons which could be derived from them and might prove useful to those who act in very different contexts both in post-conflict societies (like Iraq or Afghanistan) and in societies which generally are not regarded  as conflictual but which might prove to be in unconoscious pre-conflict stage.  

 

 

1. A collegue from Israel, whose name is Daphne Barak-Erez, about a year ago, gave a presentation centered on the issue of the so-called legal transplants[2]. At the end of her talk, she remarked that in most instances what is referred to as the dialogue between legal experts from different countries mostly proves to be nothing else than a monologue. In fact, she observed, those countries which adopt as models the legal products – so to say – conceived and elaborated in other countries very rarely end up producing themselves law which becomes a model good for export, and expecially apt to be exported towards the consolidated democracies having longer legal traditions. Shortly: legal experiences have been transplanted in one direction only unto now.

 

By reading many of the documents and some of the literature produced within the frame of the most recent constitutional efforts in Africa, and in South Africa in particular, I have been persuaded that the time has come to restore some balance in the process of constitutional circulation.

 

            There is little doubt that at first in Africa and in other non-Western nations many if not most constitutional arrangements have been imported and imposed upon as a direct or indirect consequence of the colonial occupation by one of the major European powers. Both African and non-African authors clearly describe the developments of those post-colonial arrangements until no more than 10-15 years ago in stages. In the first stage, facade constitutions closely resembling those of the previously occupying powers are practically super-imposed upon societies characterized by particularly weak polities; during the second stage, governance evolves towards an extremely high level of concentration of power in the hands of very small elites, mostly symbolized by one boss. Julius Jhonvbere defined the emergence of this elite as the “big man”[3], even though at times it was clumsily hidden beneath a “sole political party”[4]; some countries pass through a the third stage characterized by the mimickery of socialist constitutional arrangements. Finally, beginning in the late 1980s and early 1990s, stage four emerged, featured by New Constitutionalism: the effort, one might say, to apply constitutionalism in the African context in general and more specifically to apply it in the context of some selected African nations (most authors identify Namibia and South Africa among the first).

 

In fact, constitutionalism appears to have become an integral part of the African political reform process and it has started playing a role which appears strikingly similar to the role which constitutionalism played in Europe when it became the claim, the demand of the bourgeois revolutionaries struggling against tyrants and absolute monarchs (about that later).

 

            Within the frame of this trend the South African case is truly outstanding by all means and for a variety of reasons which I will recall ahead.

 

            My main conclusion here will be that by moving in this direction African constitutionalism has fully joined the mainstream of constitutionalism world wide and it has started offering a genuine and original contribution to its development. Of course I don’t undervaluate the spectacular contextual differences between most of the consolidated democracies and most of the young African democracies not yet or just barely and recently consolidated; I don’t forget the deep and large gap between some solemn and sincere legal provisions and their implementation; neither do I ignore how difficult it is and how long to achieve the development of the cultural and societal background needed in order to make many constitutional arrangements based upon the principles of constitutionalism work at their best.

 

            Nonetheless, for authoritative and well articulated that they might be, I don’t share those opinions according to which differences between the Northern and the Southern part of the world are so great that their constitutional arrangements belong to different orders and must be measured applying different scales: so that in the end they may not be compared. A similar assumption would imply that it would not be possible to think in terms of constitutionalism as a shared and common prescriptive theory of the constitution[5].

 

Quite obviously, no one dealing with comparative studies in whichever field of science could ever afford ignoring the set of facts and circumstances which surround the object of his/her observation: these must be evaluated and taken into careful consideration while comparing. At the same time, however, one should also be aware of the hazards run by those who indulge in an excess of contextualism. First, to overevaluate contextual factors  makes comparison impossible; and second, it might even bring close to the verge of however unconscious but implicit discrimination, if not racism (along the line: «this is good for us, but it can’t be good for them»). To indirectly use R. Dworkin’s words, constitutionalism must be taken seriously and this necessarily implies the recognition of its universal relevance (which doesn’t mean that its principles however universal must be or can be translated into the very same constitutional provisions, of course, nor still that they can only be legally recognized and resorted to where, when and if their implementation is guaranteed[6]). Authors like D. Beatty and B. Ackerman seem to share this view about the transnational value of constitutionalism[7].

 

To sum it up constitutionalism in Africa is interesting precisely because in the various different national contexts of the continent it meets some of the most demanding challenges; precisely because the fact that many African elites and many African nations resort to constitutionalism is a striking demonstration of the universal value I was mentioning; and finally because only a parochial point of view might explain a refusal to appraise some of the novelties produced within this trend and to acknowledge that there are experiences and developments to learn from; alltogether constitutionalism in Africa can contribute to the cross-fertilization processes emphasized and accelerated by globalisation, certainly affecting constitution making and constitutional issues and solutions everywhere[8].        

 

            Starting from an Italian-European point of view, in this paper I will try to argue in favor of the world wide relevance of the recent African experiences in constitutionalism (a); within this frame step by step I’ll try to show some of the similarities which assimilate those experiences to what has occurred in consolidated democracies and in Italy, for instance: by doing so I feel the readers from abroad and from Africa in particular might derive some reason for confidence in spite of the great difficulties  they are facing (b); finally I will try to point out some of the lessons which could be derived from them and might prove useful to those who act in different contexts (c).

 

 

            2.  To begin with, let me propose some brief stipulations (rather: formal statements of meaning) concerning concepts, terms and definitions I am going to use in this paper. Nothing new under the sun, of course; however the discussion about constitutionalism might profit of some prior clarification as it is still often blurred by the fog of some misunderstandings[9].

 

            First of all, let me remark that constitutionalism is about constitutions and constitution-making but it doesn’t identify with either one. By constitution I mean that system of basic principles, rules and organizational arrangements according to which a polity is run (or runs itself, better). By definition every organized community has a constitution as just defined. You cannot have an organized community without a constitution: more specifically, one can say it cannot exist a sovereign organized community or a state without a constitution, for the simple reason that a community in order to be organized needs a set of constitutional arrangements.

 

            On the other side not all organized communities have written constitutions, as everyone knows (think of the United Kindom or Israel or New Zealand, nations which lack an organic and formalized single text containing all the most significant constitutional arrangements).

 

            Often identified with the variety of specific constitutional arrangements set up within the various states, constitutionalism is something different than a catalogue or a classification of them and it has to do with the criteria according to which those constitutional arrangements (and therefore the written constitutions) are engineered. Constitutionalism can be defined as a set of prescriptions, a series of principles and values meant to shape and mould the constitutional arrangements of a polity in a way to comply with them. In other words constitutionalism is the most influential and at the same time the most demanding normative theory of how constitutions should be written. This explains why not all organzied communities have constitutional arrangements and constitutions (whether written or not) consistent with the mentioned theory of constitutionalism. It is not a paradox, although it may seem one, to affirm that there are several constitutions without constitutionalism: constitutional arrangements significantly incongrous with and not aligned to constitutionalism’s basic prescriptions.

 

 

            3. Still nowadays art. 16 of the French Declaration of the rights of man and of the citizen of Aug. 26, 1789 is very often quoted: and in fact that text is a short, simple but basically complete summary of constitutionalism as it was meant at the time. It states that «a society in which the observance of the law is not assured nor the separation of powers defined, has no constitution at all». Technically incorrect from the standpoint of the positivist constitutional lawyer, this solemn provision was de facto a short manifesto of constitutionalism: and it proved to be an extraordinary and potent instrument of political change, able to foster a spectacular process of transformation bound to impact the main political institutions in the entire European continent for many years to come. Distribution of power was at stake in those days, about two hundred years ago; those revolutionaries who where demonstrating in the streets of all European capitals in the never forgotten year 1848 (the “year of revolutions” in our mithology) where all vociferously submitting the same request: «we want, we demand a constitution»; they wanted to negotiate it; in many instances the monarchs just conceded it in order to avoid and anticipate any negotiation (octroyée or octrayed constitutions). In any case, the revolutionaries were not asking for any constitutional arrangement, they were asking for a new, a different constitutional arrangement compared to the existing one; and they demanded a constitutional arrangement shaped according to the principle and values of constitutionalism as expressed in the quoted art. 16 of the French 1789Declaration and in the entire of the Declaration.

 

Therefore, although at that time there wasn’t full consciousness of this, if we go back to the origins of constitutionalism, we can trace a clear distinction between the descriptive analysis of constitutional arrangements and the prescriptive theory of the content those arrangements ought to have. This theory had philosophycal and political foundations which could be easily identified and which were directly connected with the social structure of the time.

 

            The Declaration belonged to a powerful movement which was going to impose representative government in France and in most of Europe, along the lines of the British precedent of one hundred years before. To establish that constitutionalism meant “observance of the law”, implied that all public institutions but first of all the monarch and its cabinet and administration were bound to comply to the politcal decisions in the shape of law adopted by  the representative assembly; there, in the assembly, was to be found the sovereign not in the monarchy anymore. The king himself was king not for the sake of god but because the representative assembly had decided so. The “separation of powers”, on the other side, was just a fundamental arrangement instrumental to pursue the very same end: not only in observance with an abstract theory which the Baron of Montesquieu had exposed in his Esprit des lois, but for the substantial and solid reason that on the European continent, contrary to the progressive conventional developments in Great Britain, the revolutionaries didn’t want a King in Parliament, as they feared the potentially disruptive monarchical interferences in the free determination of the assembly. Of course, for over a century the national assembly was bound to be the representative assembly of the bourgeoisie, the hegemonic social force of the time.

 

Already then, the laying down of constitutional arrangements, or constitution-making, was a matter of distribution of power along with the exchange of reciprocal guarantees among the struggling social forces: for dozens of years between the monarchy and the aristocracy on one side, the middle and middle upper class on the other. The recognition and the protection of political and property rights were main part of the deal; and – just as an example – the constitutional role of the Upper Chambers was another element of it (the old regime hoped in vain to keep concurring to legislation through them). 

 

Marbury v. Madison[10]  was virtually contemporary: it actually even anticipated the rise and the acceptance of the main values of constitutionalism in Europe. For over one hundred years, the idea of the supremacy of the constitution was totaly absent from the heritage of European constitutionalism both British and continental. Parliamentary sovereignty was the fundamental principle to be applied, consistent with the main political and social structure of the nation state in Europe in the Nineteenth century, which a well known Italian scholar called the one-class state[11], that is to say the organized political community in which all the power was in control of one single relatively homogenous class, the bourgeoisie, whose grip on the representative assembly was granted by the restrictions on enfranchisement. To make a long story short, the development of the social and economic structure of society and at the same time the fundamental protection of civil rights (and especially the freedom of opinion and the freedom of association) at the end of the Nineteenth and at the beginning of the Twentieth century brought about general male enfranchisement and the birth and spectacular fast rise of the modern political parties.

 

It is not surprising that the combination of universal suffrage and the organization of the unto then subaltern masses produced what was felt as the irruption of new and potentially hostile forces within the previously more homogenous representative assemblies: the state was becoming, it had already become a more modern pluralistic state, a state in which sooner or later the whole of society would be represented. This of course meant that the needs and interests of those who had been excluded were also bound to be taken into higher and eventually prior consideration.

 

Of course this major development was not easily accepted by those who had been in charge before. To many the very unity of the main and most powerful political institution which has ever been set up, the nation state, appeared at stake.  Again, a new and more dangerous struggle for power distribution had begun. There’s no need to sum up here and now the history of Europe and of the World in the first half of last century: the carnages caused by the competing European nation states, the progressive colonisation of a large part of the rest of the world, the two World wars, the search of opposite roads to cope with the rising expectations within polities in which all where recognized the right and the means to ask for their share (fascism, comunism, socialdemocracy, the abandonment of the principle of no public intervention in the economy).  We are interested in how all this was reflected by constitutionalism and constitutions.

 

 

4. Two main novelties I would like to remind: both have a lot to do with the more recent constitutional developments in South Africa and in several other countries in Africa as well.

 

The first refers to the tendency to recognize those who have been be called second generation rights, that is to say the social rights; the other is the contextual progressive spreading and acceptance of the idea that parliamentary sovereignty was not unlimited and that it had to meet the constraints of a higher law, constitutional law. Furthermore, the idea that the supremacy of this higher law would have to be guaranteed through the judicial review of some supreme court. Europe  had had to wait until the kelsenian Austrian Constitution of 1920 to see the first constitutional provisions establishing this revolutionary constitutional conception. What we now call the constitutional state was born, a step forward if compared with those systems where only the rule of law was granted. According to the constitutional principles of the Nineteenth century rule of law meant that all state bodies were bound to conform to the law (in England conventions and parliamentary acts); according to later and more recent constitutionalism all state bodies (Parliament in the first place) must also to comply to a law which by definition is higher than ordinary parliamentary law and therefore limits the parliamentary majority.

 

Why did the rigidity of constitutional law become one of the main features of constitutionalism during the Twentieth century? It was not an accident, nor it was the neutral acceptance of some academic or abstract theorization. To simplify a more complex story, it can be said that the urgency to determine a set of strong legal constraints which could limit the legislative power of the representative assemblies came about as a consequence of the transformation of these assemblies from assemblies were one single class was represented into assemblies were all parts of society were represented[12]. These included the working class and the parties which organized it. Some of those parties had notoriously started claiming the abolishment or at least severe limitations to property rights, and/or a system of increasing taxation meant to finance welfare and meet the needs of the poor: and eventually they even fostered limits to the protection of first generation rights in order to pursue the social revolution they were struggling for more effectively.

 

Some further protection had to be granted to first generation rights put at stake by these developments. To put it in another words: the very moment democracy was establishing itself and the state from liberal was becoming democratic, the issue had arisen of how to avoid the risks of a radical democracy. This is not the only justification for constitutional review systems in Europe, but certainly one of the most significant until World War II. Once more: a new distribution of power was undergoing and the social forces involved and their representatives within the institutions had to exchange some mutual assurances in order to avoid more risky conflicts. Universal suffrage and majority rule were never to be disputed again as the standards decision making criteria: but if civil war was to be avoided a set of matters had to be subtracted and precluded from blunt majority rule.

 

In fact, according to contemporary constitutionalism the democratic principle meets some specific and not marginal constraints which must be accepted in order to reconciliate potentially conflicting ends. The very same development is what has occurred in South Africa in the early Nineties, and this is one of the factual circumstances that prompt me to say that the constitutional history of South Africa after apartheid clearly and entirely belongs to the mainstream history of contemporary constitutionalism.

 

 

5. What I have just elaborated upon should be sufficient to demonstrate another feature of the general theory of constitutionalism: its content in terms of principles, values (and basic solutions instrumental to pursue them) does change in time as any product of society. In fact it tends to change incrementally: the original principles and values are kept but step by step they are integrated according to the new values which establish themselves in society. It is even more so for what the institutional solutions instrumental to the advancement of those principles and values is concerned (they are understandably more closely connected to each specific context). 

 

Therefore the features of constitutionalism (its content) today are different than what it was the case during the previous phases of its history, in the course of the last two hundred years (save for the legal recognition of human rights and of the need to protect them effectively, possibly). If I would summarize briefly this content, I would recall:

 

(a)                            the protection and the advancement of human rights, inclusive of social rights or citizenship rights, as the undisputed priority: they come before any other value and all public institutions and bodies are bound to foster them; equality among all human beings and in particular the prohibition of all discriminations on grounds of race, colour, sex, social status, ethnic origin, and all unjust and prejudicial distinction is part of human rights, as well as the establishment of a thoroughly independent judiciary;

(b)                            the recognition of the principle of people’s sovereignty as the base for the establishment and the actions of all collective institutions, which includes majority rule as the main decision making technique and forms of both representative and direct democracy (through referendums for instance);

(c)                            the guaranteed subtraction from the supremacy of majority rule of those matters whose regulation may eventually infringe the protection of human rights in general and of some minority rights, as well as of other matters which in each specific social context are regarded as particularly sensitive so that they may be regulated only on the ground of a particularly high level of consensus, or may even not be regulated at all;

(d)                            the full autonomy of the civil and political sphere from the religious sphere in the sense that the public authorities are not allowed to grant privileges to any denomination (even if largely majoritarian);

(e)                            a set of institutional arrangements which allows a guaranteed minimum of reciprocal checks and balances so that no institution may concentrate all the public functions or, to say it in other words, strict limitations to the exercise of political power (these arrangements can include a territorial distribution of power along the lines of federal solutions[13]);

(f)                              all the previously listed features are established and entrenched in a source of law recognized as higher to any ordinary law and subject to amendment according to specific and extraordinary procedures only; furthermore, the enforcement of this supreme law must necessarily be ensured by some effective system of judicial review;

(g)                            the just mentioned higher law istelf must be the product of an all inclusive and negotiated process which may grant the opportunity to participate to all members of the community it is going to insist upon; however the application of the democratic principle in the constitution-making procedures may be tuned in a way to be reconciled with the pursuit of peace among the members of society as a pre-condition of both the acceptance of the final arrangements and the effective protection of fundamental human rights[14];

(h)                            the permanent maintenance of the constitutional arrangements must be granted  as a main function of the political entities: poor maintenance or no maintanance of the constitution (the fundamental rules and values which govern a community) may otherwise bring sooner or later to a break down of the constitutional order [15].

 

 

6. The list reported above is the product of over two hundred years of constitutionalism and constitutional developments which have witnessed a process of acceleration and which can be classified in various stages: each of these stages tends to identify with political and social events of great impact which urged not a single but a number of states to entirely revise their set of constitutional arrangements or to establish a new constitution (a more rare event nowadays).

 

If I limit myself to the constitutional developments after WWII, I can basically list:

 

§         The first generation of post-WWII constitutions (France, Japan, Italy, India, Germany) [Late Forties]

§         The post-colonial new constitutions [Sixties]

§         The post-autoritharian new Mediterranean constitutions (Greece, Portugal and Spain[16])[Seventies]

§         The post-communist new or totally revised constitutions of the Eastern European nations  and the constitutional recovery in Latin America [Nineties]

§         The post-internal conflict constitutions in Africa and Asia [from the Nineties to present times][17]. 

 

Through its peculiarities each of these stages marked an era in the developement of constitutionalism. Each of them built upon the previous constitution making experience concurring to the refining and expanding of the principles and values of constitutionalism and to the strengthening of the specific arrangements meant to foster a more effective implementation of them.

 

 In particular the 1974-1978 Mediterranean transitions from military and/or authoritarian regimes, in all three cases, featured substantially peaceful processes based upon negotiations between the representatives of the old and the new order. This pattern of thorough constitutional change, as the follow up of a radical subversion of the balance of power in society, was confirmed first in Eastern Europe, later in Africa and in most other similar situations all over the world, not without dramatic exceptions[18]. The Spanish formula of the so called transiciòn pactada (negotiated transition) has become a welcome peculiarity of most regime changes: and constitutional-making in the respect of the rules of contemporary constitutionalism has become  a major instrument to resort to in oder to pursue a negotiation based approach[19]. More so: a negotiated constitution-making process has become itself a component of constitutionalism and it is regarded a necessary requirement of a legitimate final constitutional arrangement.

 

This is a crucial point which deserves some expansion. First of all we should distinguish between (a) constitutional negotiations strictu sensu and (b) social inclusion and participation to the process: both are recommended, but while the first is not new to constitutional history at least since WWII, the latter is much more recent. It is to be noted that the constitutional developments in South Africa have been characterized by both features.

 

Constitutional negotiations imply at least two parties involved, and generally more than two. Mainly it is a matter of getting together and attempting to reach a mutual agreement among organized political forces representing the various interests existing in society: as I already pointed out both the representatives of the previous regime and their opponents sit at the negotiation table; however this does not mean that all potentially interested political forces are allowed to or are interested in taking part to the constitution-making process. Some at least partial exclusion, in fact, is rather common and full inclusion relatively rare. Of course the list of the participating forces and of those left out depends on the factual circumstances which originated the entire process. In some instances – expecially in the past – no representative of the previous regime was allowed to participate, generally after a bloody conflict (a civil war or an international war) had already taken place and made its victims. Take the Italian case: our 1948 Constitution was laid down by an elected Constitutional Assembly and based upon some limited interim provisions for both content and process in part dictated by the United Nations[20] and in part negotiated between the anti-fascist political parties and the monarchy (until the people repealed it by referendum on June 2, 1946). The signficant part of society which identified itself with Mussolini’s regime certainly was not included[21]. But an international war had been fought and lost, and a civil war had divided the country with part of the citizenry on the Germans side to the end and part of the citizenry and after Sept. 8, 1943 the King’s government and its administration on the side of the United Nations. To the contrary, starting with the transiciòn pactadas of the Seventies a major accomplishment pursued by constitutionalism is to allow for radical regime changes through negotiations which may at least avoid major conflicts of the dimension of a civil war and possibly prevent any conflict which might endanger basic human rights. This is the pattern successfully followed by most Eastern European countries in the Nineties[22]; and this is the pattern also successfully followed by South Africa in much more difficult conditions[23] [24] (about this later). 

 

In all instances one thing is to be active part of the negotiation process and quite another is to be informed and somehow consulted, involved and possibly allowed to submit alternative proposals or objections for consideration by the truly active actors of the process. In the first case organizations are necessarily involved[25], in the second it can be both a matter of organizations and of citizenry at large. The first procedure is by far the most significant while the second can be useful in order to strengthen the social support in favor of the process on one side and in support of its outcome on the other. Both however (inclusion at the negotiating table where the constitutional arrangements are decided and popular participation),  contribute in the long run to grant the needed legitimation of the constitutional arrangements established and their being recognized as a common ground for encounter by the largest part of society possible. Even in more consolidated polities (take the Italian case) the original exclusion - however justified - of part of the societal base may in the long term concurr to the slow de-legitimation of the constitution. The risk is however more relevant in the short term when influential social forces are kept out or keep themeselves out of the negotiations on the constitution[26].

 

It must be added that in the long term all constitutional arrangements if not maintained and updated in such a way to take into account the unvoidable social changes occurred may become totally or partially obsolete and run the risk of de-legitimation. This is one of the reason why some scholars advance the idea that at the heart of new constitutionalism is process: this concept attempts to go beyond the security and stability granted by the traditional ideal of constitutions as covenants signed forever in order to allow for the flexibility needed by new circumstances. But it also reflects the fact that all constitutional texts, aside from amendments or revisions, still always require some sort of more or less intensive legislative implementation: by no means the constitution-making process ends with the enactment of the Constitution. The struggle among the various social and political actors tends to realigne along different lines and to be fought with different and differently distributed legal weaponries, but it really never terminates (although it might experience particularly quiet phases). In a country like Italy it is widely accepted that the implementation of the 1948 Constitution could be considered completed around the early Seventies (at least in relation to the organizational parts of the constitutional arrangements contained in the constitution): this means implentation took no less than 25 years; ever since the process of reviewing the 1948 text began and it hasn’t been brought to an end yet[27]. 

 

The so-called conversational constitutionalism has been recently theorized by Vivien Hart (Hart 2003): it refers on one side to the idea that a constitution is not a contract, a deal struck once and for all, but a process which permits continuous maintainance and step by step incremental accomodations; on the other side to the idea that nowadays constitutions may gain the needed legitimation only if they are non elite-made but participatory constitutions[28]. This because the nature of many conflicts makes a final resolution of them very difficult to reach: no final act of closure is to be pursued but an effective way to live together within major disagreement. This position goes along well with Cass Sunstein’s definition of what constitutionalism should be: the constitutional pursuit of deliberative democracy (where the most delicate choices are not left in the hands of occasional majorities but are the fruit of an inclusive process of discussion, mutual re-assurance, reason-giving and persuasion before any decision is taken, up to the point that, the above lacking, in many instances no decision is taken[29]). To say in Sunstein’s own words: constitutionalism is «…what makes it possible for diverse people to reach agreement where agreement is necessary, and make it unnecessary for people to reach agreement when agreement is impossible»[30]. Let me stress that another way of expressing the same concept could be that “constitutionalism is the process of subtracting items or issues from majority rule”. Who could doubt that this was precisely one of the main features of the South African constitutional outcome of 1993?

 

There is a very important corollary, an immediate inference, which derives from the criteria of negotiation based and inclusive constitution-making: this is a demanding exercise in terms of time. Constitution making as a deliberative task requires adequate time: unfortunately time is a precious resource not always available in the quantity which could be regarded as optimal; this scarcity might depend from a variety of reasons with consequences which can only be appreciated within the frame of each specific context. In particular the most difficult task is to evaluate where is to be found the best balance between the need to put an at least temporary end to the process or, more correctly, how to identify the end of one stage of the process before proceeding to the next, and the need to grant a sufficient level of inclusiveness and participation. This is particularly difficult when external forces supporting the process are in the position to have a say and interfere in the definition  and implementation of the constitution-making timetable: easily a contrast might develop between the need to allow enough time to pursue a sound inclusive process and the urgency to limit the costs and the sacrifices a broader time span will imply. This is precisely what has occurred and is occurring in Afghanistan and in Iraq: while it has not been the case in South Africa where the main negotiating forces certainly were subject to external and international pressures, but not to the point to have to abide to external diktats imposed on the ground of primary security reasons[31].  

 

When the transition requires (or is the effect of) foreign involvement of any kind (UN, unilateral, etc.) a tension might arise between the need to make the foreign effort as short as possible in order to appease the public opinion of the participating countries and the need for the civil society directly involved to “take its time”: there is a great deal of difference between countries where the process is autonomously managed and those where it is not and it depends from external intervention.

 

In any instance all this speaks convincingly in favour of stressing the procedural and processual nature of constitution-making in post-conflict societies, not only because, but also because it can be one way to force the time scarcity constraint, if  needed[32].

  

 

7. Another particularly relevant feature of the most recent trend in constitutionalism concerns the (re-)discovery and the affirmation, within the broader reference to human rights in general, of the strict link between political and social rights.

 

Let me put it like that. I belong to a generation for which when we were young, it was a mantra that you couldn’t possibly have democracy and freedom (and the enjoyment of liberty) without economical development: due to the influence of the marxist interpretation of society based upon dialectical materialism (production relations are what counts, political institutions, culture and law – including constitutional law and civil rights - are just superstructures), the conclusion was that first generation rights didn’t really matter, as long as the material and economical bases of development wouldn’t be granted. Even today, of course, no one would question that the full enjoyment of political and civil rights is hampered by misery: but now we tend to admit that freedom (and political freedoms in particular) are values which cannot be forgotten and ignored for the sake of development. More: the United Nations Development Program itself in its report on the Middleast has recently recognized that lack of human rights, political rights and an extreme level of gender discrimination are to be regarded key factors undermining economic development.

 

In other words: on one side the entrenchement of socio-economic rights is pivotal for the success of constitutionalism, on the other side this must necessarily be reconciled with the full protection of human rights starting from civil and political rights. The latter guarantee the first in a sort of biunivocal process. Constitutional arrangements must therefore allow for a more equitable redistribution of economic as well as social and cultural resources, they must allow even large-scale social change when and where the need for it is felt by a majority of the citizens, but this has to  take place through non-violent political processes ground in law only, and respecting those rights which also entrenched in the constitution (the balance being ensured by judicial interpretation by an independent supreme court)[33]. This is what has been called transformative (or transformational) constitutionalism according to which each constitution more than the expression of a fixed balance is or may become a program for change. By saying this we come back to the core of early Twentieth century constitutional developments (see par. 3). In fact, expecially where like in Europe at the beginning of the last century or in South Africa at its end and still today,  previous developments have produced a massive economic and social gap between components of the same nation, peaceful coexistence can only be granted ensuring the have-nots that they may struggle for a more even share of wealth, and ensuring the haves that their fundamental rights including the core of property rights will be legally and effectively protected as well. In this regard constitutions prove to be at the same time instruments for change or instruments to preserve: they are instrumental to preserve a set of agreed values and principles and at the same time to allow for legally regulated and therefore peaceful change.

 

If the haves would risk expropriation and if their rights would be endangered, or if the have-nots would risk the perpetuation of their inferior standard of living, there wouldn’t be ground for coexistence and peace would be at stake. This was one of the main deals between conflicting social forces entrenched in many a contemporary constitution (including the Italian and the German constitutions for instance) and certainly was one of the main issues the South African post-apartheid transitional constitutional negotiators had to deal with (see Ebrahim in Andrews and Ellmann 2001 and in Federico 2005, Kotzè 2005). Contemporary constitutionalism is at the same time liberal and social, or it is not[34].  It is also democratic, of course, as we saw (par. 5), but only to the point that the application of the principle of people’s sovereignty doesn’t endanger peace and full enjoyment of human rights in the sense I just emphasized[35].

 

 

8.  The emergence of a sort of supra-national committment to constitutionalism is the last major development in contemporary international relations.

 

In fact it is not just the matter of the step by step but steady assertion of the idea that national constitution-making processes ought to comply to the basic requirements of constitutionalism as defined here: more broadly since WWII and symbolically since the United Nations Universal Universal Declaration of Human Rights (1948),  the international juridical system has lost its traditional feature of a system in which states were the only equally sovereign actors. Peoples and individuals have started to be taken into consideration as relevant juiridical subjects;  the system is nowadyas fully committed to the protection of human rights and provides the means to pursue it even within the single states. Even more so after the sunset of the Soviet Union and the events which followed in Eastern Europe and in another parts of the world as well, an entire network of international organizations and a variety of international legal instruments has been either established or more effectively applied in order to impose the protection of human rights and the acceptance of the core features of constitutionalism to a number of states. From the United Nations sanctions against the apartheid regime in South Africa to the softer incentives of the Council of Europe or the jurisprudence of the European Court for the protection of Human Rights or the financial incentives of the World Bank until the extreme of the humanitary intervention in the Balkans (Kossovo, in 1999) passing through the Helsinki Conference for Security and Cooperation in Europe, the following establishment of OSCE and its ODHIR, to the most recent establishment of regional organizations like SADC[36] and to the sanctions decided by single states against Zimbabwe, the establishment of the international tribunals to prosecute the crimes committed in former Yugsolavia and in Rwanda: a complete list would be too long.

 

What is dramatically evident is the trend. Mine is not optimism, and I’ m perfectly aware of the limits of the process of expanding the protection of human rights and its setbacks; I’m also aware of how large is that part of the world where enforcement is still seriously endangered and how many are those countries where even some of the core principles of constitutionalism are questioned if not rejected. In international law the relevance of brutal power is still decise in many instances: no international organization and not even the most powerful alliance of single states acting in the name of the most sacred humanitarian values may ever enforce the application of the protection of human rights or other constitutional requirements to China, just to mention the most striking example that comes to my mind. In this regard, however, I would like to observe that (a) even from the perspective of legal realism who takes into account effectivity as a main requirement to recognize a norm as legally binding, cases of non compliance must be balanced with cases of compliance; furthermore as I said the trend must be also considered; on this base it would be hazardous to assume that if the protection of human rights is not granted in the entire world this affects its juridical status as recognized international law; I would say more:  there are all the elements to consider the obligation to protect human rights general international law and not simply an obligation deriving from treaties which each state might or might not have signed and ratified; (b) in any case it is not a paradox, in the end, that save for extraordinarily exceptional instances whose urgency must be shared and consented by a large majority of the members of the international community, even the protection of human rights cannot be enforced through violent means which might largely endanger the very same values which would in ordinary circumstances justify and even suggest the intervention. Just as in a domestic police operation no one would ever endanger the life of dozens or hundreds of people in order to save a single human life for excruciating that  such a choice would unavoidably be.

 

The role of regional organizations can be particularly useful in order to foster the peaceful expansion of the protection of human rights and constitutionalism: what has occurred in Europe in the last 15 years strikingly demonstrates it. In particular it proves how attractive can be a context which might at the same time promise more stability, more international security and better chances of economic development. In fact, the European Union (and to a more limited extent the already mentioned Council of Europe[37]) have proven to have a spectacular capacity of attracting states at their borders and as a consequence to be able to directly and indirectly influence the acceptance and effective enforcement of human rights and constitutionalism by the countries interested to become candidates for accession or even just to be granted special commercial and financial rights. No one could reasonably put in question that the expansion of those values would have been much more limited and much slower, and in some cases might not have taken place at all, in more than one state if the Council of Europe and the European Union would have not existed. The case of Turkey is probably the most extraordinary example of them all, although in this case the process is far from completion[38] [39].

 

In all instances the internationalization of constitutionalism in terms of the relevance of the role of external (international) pressure in favour of its application in national constitution-making processes has increasingly become a major factor to be taken into consideration: its impact in the constitutionalization of many post-conflict countries has been very significant and this applies to the South African case as well. The international de-legitimation of the apartheid regime had reached a level which could hardly be sustained in the long term, and this certainly influenced the NP leaders and made them accept the idea all they could do was to negotiate their strategic retreat, that is to say to negotiate a rather different distribution of power based upon totally alternative moral, ethical, political, legal postulates. A revolution was going to take place in a way or another: the only thing they could possibly do was to see if they could gain the right to be a legitimate part of a future polity based upon the very same principles they had so grossly violated. The greatness of the two opposing leaderships was to understand that to negotiate such an outcome was the only thin path which could avoid a bloodshed of major proportions which would have inflicted unspeakable sufferings to so many. The constitutionalistic principle according to which constitution-making must be based upon all inclusive negotiations had to be applied (and tested, about this later).       

 

 

9.  The South African constitutional developments prompted by the first secret talks between the apartheid government representatives and the jailed Nelson Mandela at the end of the Eighties truly appear a spectacular demonstration of constitutionalism at work; after having studied the process as described by some of the numerous authoritative literature on the subject and as confirmed by the available documentation, the widespread recognition that process gained seems to me well deserved. Let me elaborate on that and on some of the features of those developments which I think should be emphasized because they make the South African most recent constitutional hisory a most interesting exercise in  constitutionalism[40].

 

A) Quite evidently the long term struggle of the African National Congress (Anc) and  the other freedom fighters had always been a struggle in the name of the most basic values and principles of constitutionalism as affirmed since the late Eighteenth century: one can just read art. 1 of the 1789 already quoted Declaration («Men are born and remain free and equal in rights…») and compare the entire Declaration with the content of the Freedom Charter of June 26, 1956 (taking into account the 150 years of constitutionalistic developments in between, as well)[41]; by natural consequence the freedom fighters were also struggling for majority rule, or government by the people. The Pretoria authorities were resisting and imposing opposite values. The very moment that the balance started shifting (de facto it had already shifted when negotiations begun) it become the turn of the representatives of the decaying regime and its organized political forces, National Party (Np) with the Inkatha Freedom Party (Ifp) on its side on this issue, to appeal to constitutionalism this time (rightfully) interpreting it as a global system of protection of minorities from the potential excesses of majority rule.

 

B)  From the beginning to the end the very heart of the constitutional process has been the decision to negotiate. Of course the outcome of negotiations could not be known in advance: but no one negotiates unless there is an at least implicit agreement on the fact that the outcome would guarantee - at least to a signficant extent - the core of the not negotiable expectations and interests of each of the involved parties. Equality, freedom, majority rule, the right to keep struggling for a more balanced distribution of wealth were  the stakes Anc could not give up; some degree of territorial autonomy and most of all the freezing and subtracting from majority rule of some entitlements and fundamental rights including, those linked to property, were the stakes that in a different measure Np and Ifp could not entirely give up. This was calling for a compromise based upon a limited application of the democratic principles, according to the rules of constitutionalism.  A peaceful transition required that the core constitutional agreements would imply that a social revolution would prove to be possible but within the constraints allowed by the protection of first generation fundamental rights and postponed to future constitutionally limited majority rule[42]. As Hassen Ebrahim has written, the true key issue of the negotiations until 1993 was how to reconcile majority rule with its limitations[43]: and this is what constitutionalism is all about.

 

C) The importance of the 1993 interim Constitution has been underlined by many scholars[44]. On my part I regard it as a truly extraordinary specimen of contemporary constitutionalism and I assume it is the very core of the present South African constitutional arrangements. This is the reason why its importance could hardly be over emphasized.

 

(i)                           The  interim Constitution was the certification that a totally new constitutional phase had started and it reflected the new base of the constitution, the new roots from which the future constitutional arrangements were going to be developed: a new order was rising;

(ii)                         The way it entered into force was the re-affirmation of a process meant to be legal, in formal respect of the previous arrangements as typical of constitution-making in peaceful transitions.

(iii)                       It was integrated by a series of reciprocal political guarantees: the establishment of an all inclusive Transitional Executive Authority[45], of an Independent Electoral Commission and of an Independent Media Commission: all crucial in view of a fair implementation of the entire process;

(iv)                       Most of all, its main feature was the regulation of the constitution making process which would have followed, inclusive of the election of a Constitutional Assembly by universal suffrage (with proportional representation[46]) and by the contextual laying down of 34 constitutional principles, meant to limit the Assembly: the future “final” Constitution would have to comply to those principles and in order to ensure this, the task to verify the compliance was handed to a higher tribunal, the Constitutional Court.

(v)                         The Constitutional Assembly had been correctly called by this name: it was bound to draft the Constitution in the respect of a variety of principles and directives which had already been agreed upon and could not be changed. Section 74 of the interim Constitution expressly prohibited the repeal or the amendment of  any of the 34 Constitutional Principles of Schedule 4: as de Villiers wrote in 1994 «it may… rightly be said that not only is the 1993 Constitution the act of conception of the final Constitution but it already programmes the genetics of that Constitution» (de Villiers 1994, 51). In technical terms, we can say that the Ca was bound to exercise not constituent powers, but constituted powers; in other words it was by no means unlimited. This truly was a triumph of constitutionalism over parliamentary sovereignty and over majority rule (something totaly unknown to the previous constitutional traditions of the country, by the way). This is the reason why I would challenge the definition of the interim Constitution as a transitional or a temporary constitution (such as the Italian one of 1944-1946 or the Iraqi one of 2004-2005, for instance). It didn’t include a set of constitutional provisions bound to remain in force for a limited amount of time only; neither it was meant to rule a constitutional arrangement bound to be replaced. To the contrary, its Schedule 4 and the mechanism which was going to and then actually did guarantee its enforcement should be interpreted in the sense that the deal beneath the interim Constitution and the social and political forces beneath it were the material (the effective and substantial) base of the South African constitutional arrangements, somehow the veritable constitution[47]. In fact at the heart of South African constitution-making was a deal struck by the un-elected representatives of the old regime and the political parties of those who had fought for freedom and equality, granted by the conscious containment of majority rule and democracy[48]. In the end it was no less than a sort of peace-treaty what had been negotiated upon and no one, not even a representative and elected assembly – the very first truly representative of the citizens of South Africa, could put its implementation at stake. In this sense it is correct to stress that the interim Constitution was an expression of constitutionalism at its best, and that it proved how constitutionalism can be instrumental to funnel potentially dangerous conflicts[49].

(vi)                       No popular referendum was planned before the full enactement of the “final” Constitution (like in many post-conflict constituion-making processes: Italy, Japan, Germany among many others), in order to avoid the inevitably confrontational format of decision making processes based upon direct suffrage (apt to take so called zero sum choices; by definition the opposite of a deliberative procedure) and of course mostly in order to avoid anything which could endanger the preserving and the implementation of the peace-treaty at the base of the constitutional developments in progress[50].

(vii)                     The role of the Constitutional Court in view of the certification of the draft Constitution voted by the Constitutional Assembly has already been mentioned. Some scholars have referred to it as «perhaps the first constitutional court anywhere in the world to be granted the power to hold a constitution unconstitutional»[51]. In fact it might appear an oddity the instance that a constitution may be called into question by a court however supreme: the basic function of constitutional judicial review is to grant that law shall be in full compliance with the constitution; when new constitutional provisions are enacted in full compliance with the existing provisions regulating the power to amend the constitution, a constitutional court should be simply expected to apply it in place of the previous dissimilar constitutional provisions. Instead there is a recent and expanding principle of constitutionalism which goes exactly in the direction marked by theCodesa  negotiators in 1993: so far back as in 1973, the Supreme Court of India (in Kesavananda Bharati) ruled that Parliament, which holds the power to amend the Constitution, cannot distort, damage or alter the basic features of the Constitution under the pretext of amending it. Ever since that Court has become the arbiter of all amendments approved by Parliament[52]. A similar principle has been affirmed by the Italian Constitutional Court in its ruling no. 1146/1988, with reference to what the Court defined as the «supreme principles of the Constitution» which not even a constitutional amendment or a constitutional revision may infringe. The reasoning of the Italian Court is interesting to report. The Court said: if our role is to protect the Constitution it would a paradox if a formalistic interpretation of some constitutional provision would  prevent us from protecting the Constitution itself from major and particularly dangerous infringements of its most basic principles. As one can understand, this is another major step in the direction of an integral system of checks and balances wherein no authority or institution can ever act without some sort of legal control: “pure” constitutionalism, so to say.  

 

D) The Constitutional Assembly set up a variety of instruments meant to foster individual and collective participation to the drafting of the Constitution. The end was to enlarge popular support to the process and to strengthen the legitimation of its ultimate outcome by making as many citizens as possible feel the Constitution as their own. The existence of a striving civil society turned this participation into something effectively although only marginally influential: for instance for what gender issues was concerned. These were issues not quite central to the parties agenda, to say the least, and had been previously carefully set aside by them, before being brought to general attention thanks to civil society’s active involvement[53]. 

 

 

 10.  Some final reflections are meant to offer a set of possible reasons peculiar of the South African constitution-making process which allowed it to turn into a success which has rightfully made of it a model for other African nations and other post-conflict countries as well. 

 

First of all, demographics were such that in the long run there was little room left for the white minority to remain the hegemonic force in society. A less short-sighted leadership was bound to emerge sooner or later, which would have had the courage to face the problem and act consequentially for the sake of the future generations.

 

Second: apartheid was simply “too much”, in the sense that it had too bluntly defied fundamental and growingly accepted human rights. Apartheid never had had any legitimation and  step by step it lost even the residual open or behind th scene international support. It was too embarassing to be tolerated. Undoubtedly the end of the Cold War precipitated the events and turned into a catalyst for change: but the outcome wouldn’t have been different, at most postponed in time. In the minds of billions of men and women all over the world apartheid had become an infamous, internationally known and strongly evocative word (like pogrom or gulag or  mafia),  the only  contemporary phenomenon to be compared with the Shoah (the holocaust, the attempt to exterminate the Jews during WWII in Europe). The enormity of the crime against humanity perpetrated still in the second half of the Twentieth century by the regime of Pretoria was such that in the end weakened it severely. At the same time the struggle againstapartheid fostered a culture of human rights and  helped in building a vibrant civil society (Federico).

 

Third: the fact that the executive authorities were still in controll of overwhelming military power (Ebrahim 2001) was a heavy factual element which had to be taken into consideration by the black leadership: the old regime new that sooner or later it was bound to loose and it preferred to negotiate its retreat in order not to loose everything; Anc knew that without a deal it either would have had to wait for a long time or risk a blodshed.

 

Fourth: South Africa at the end of the apartheid regime – in spite of the blunt violations of human rights (and in part because of them, as we just saw) – was a country were legal culture was and is very developed, where a basic institutional infrastructure was in place however distorted (because of the ends it was pursuing on behalf of the white minority), where a civil society did exist and was actviely present in all communities. In no way South Africa could be equalled to most less developed nations. From a broadly cultural perspective South Africa resembled more India than any other Sub-Saharian country. Furthermore as it has been stressed by more than one author due to its history South African legal culture shows close ties with both the common law system and the Roman one[54]. 

 

Fifth: many if not most black leaders at different levels had been forced to emigrate and had had a chance to acquire international experience and to see the advantages of constitutional arrangements based upon the prescriptive norms of constitutionalism. For what constitutional values is concerned Anc basically embraced the protection of individual human rights as its policy as a consequence of the fight against apartheid: apartheid had notoriously exploited and even fostered the values of ethnicity which are so difficult to reconcile with the protection of human rights within the frame of constitutionalism[55].

 

Sixth: the influence of the international community, of what has been called the global legal and constitutional culture and the very same idea that political conditions affected the chances of development, were felt strongly  in such a way that… «South Africans on both sides… found their options constrained by an increasing international consensus on the characteristics of an internationally acceptable democratic transition…» (Klug 2000). 

 

Seventh: the two leaderships of the two major parties (Anc, Np) played a decisive role, as they  were both capable to gather most of their followers in support of their choices. The Anc, in particular, proved to be a well organized and modern political party, sufficiently disciplined and apt to vehiculate and defend even the less popular decisions taken at the negotiating table[56].

 

Eigth: the timetable was in direct control of the main negotiating parties; security basically was also in their hands, although far from fully. The explosion of violence during the negotiations has been proven: in fact it was the phase with the highest numbers of attacks and victims[57]. However these outbursts of violence were more means to indirectly influence the outcome of the negotiations than an attempt to derail them (Ebrahim 2001). Main negotiating parties, in the end, were able to “take their time”.

 

Ninth: most of all, both sides shared the political will and the determination to strike a deal which would avoid further damages and sufferings to their communities and to the nation as a whole. At the end of the day, this is what made possible to manage a huge conflict through a constitution-making process based upon constitutionalism, the latter perceived (also) as a set of criteria instrumental to the exchange of reciprocal guarantees[58].

 

 

            11. There are several fundamental lessons to be taken from the African, and the South African experience, in particular,,which I would like to finally point out briefly:

 

(i)                           Inclusiveness (mainly referred to groups and communities) is a first major requirement in contemporary constitutional constitution-making;

(ii)                         Participation (mainly referred to individuals) is a second primary requirement;

(iii)                       The need to reconciliate majority rule with the prior urgency to negotiate is often a must: majority rule is not everything; it cannot be set aside, but at the same time it’s a value in itself only up to a certain point, expecially when a societal body is not characterized by an high degree of uniformity and the outcome of the decision making and expecialy the constitution-making effort must necessarily be based upon a compromise among deeply conflicting interests;

(iv)                       Specific technical solutions have been elaborated and laid down in many a recent African constitution which can be regarded as setting new standards in constitutional arrangements. Such an evaluation doesn’t change even if in many instances a large gap remains between proclamation and implementation of constitutional principles and rules.  

 

Consolidated democracies – precisely because they are such, or more accurately, because the believe… they are such, tend to undervaluate the significance of items (i), (ii) and (iii). At the same time they often forget how difficult, long and uncertain the process of implementing their own constitutional proclamations has been (iv).

 

 Consolidated democracies tend to give for granted that the shared background (in terms of values and interests) of their constitutional arrangements makes them unnecessary to be pursued. This often proves to be a great mistake: because the grade of sharing tends to be overevaluated by the elites in charge and because even if truly this has been the case in previous times, society changes faster than it is often perceived up to the point that this might not be true anymore, after a certain amount of time: in fact, generally a continuous process of detachment of a constitutional arrangement from reality begins the day a specific constitutional arrangement enters into force.

 

More broadly my assumption is that in Europe we have a tendency to overlook this evidence. There are parts of our societies which never were included in the constitutional decision making process, there are parts of our societies which do not share the same values and interests they used to share and – most of all – there are newcomers we should take care of in order to accomodate their values and interests. A long way is there to go in order to allow for the needed inclusiveness and participation: conflict in fact is behind the corner everywhere or it smoulders beneath the ashes, as we say in Italy.

 

As an example of what may happen, I would like to mention the recent Convention on the Future of Europe and the following Treaty establishing a Constitution for Europe, now facing a rather uncertain destiny: in this case we have witnessed a quite evident and resounding lack of communication between political leaders and people; on one side people’s involvement in the constitution (or treaty)-making process wasn’t effectively and actively promoted, on the other side  in several major European countries citizen were asked to say “yes or nay” in referendums which followed the signing of the constitutional treaty. As a consequence two rules of modern constitutionalism were ignored at the same time: in the first stage there was no pursuit of participation (one); in a second stage there was no selective resort to majority rule (and therefore the decision was taken to resort to referendums without any ability to appraise the context)[59]. The outcome has been that people were called to vote ignoring the true content of the “constitution” (most certainly a content in full accordance with all the basic rules of constitutionalism[60]) and voted “nay” for reasons which had very little or nothing to do with that content; as most observers noted many voted in order to protest against their governments and their present policies in the first place, and against that unidentified political object[61] (and therefore threatheningly misterious object) that the Ue appears today in the second place.

 

A further example I will not elaborate upon could well be the recent process of constitutional revision which climaxed in Italy in the parliamentary adoption of a rather extensive constitutional amendment of the Constitution of 1948 at the end of this year 2005: bound to be finally submitted to popular referendum in 2006 the extremely limited debate upon its content will most likely turn it into a plebiscite in favour or against the present Italian political leadership and doom it to fatal rejection.

 

Some products of the new African constitutionalism also deserve attention for their specific and technical content. I will submit three examples only: two taken from the Constitution of South Africa and one taken from the very recent Proposed New Constitution of Kenya[62].

 

The first example I would like to mention is art. 39 SA Const. which concerns the interpretation of the Bill of Rights (articles from 7 to 39) and in particular the first paragraph where the Constitution establishes that courts “must consider international law” (a statement in line with several after WWII Constitutions[63]), but also states that they “may consider foreign law” (a praxis which has become frequent among several Constitutional courts in Europe, but has never been expressly established in any constitutional text before, at least to my knowledge).

 

A second interesting example is the attempt to specifiy and textualize the so-called cooperative federalism by the Constitution of South Africa (1996) which was recognizedly inspired by the German model: chapter 6 (sections from 103 to 150) can be regarded as a clever and sophisticated effort to “translate” and “specify” the model according to original South African needs.

 

A third example is the brand new Constitution of Kenya laid down by the Commission led by prof. Yash Ghai which still waits to be adopted. Of course we all know that Kenya is one of the worlds poorest nations. And still the text drafted pursuant Section 27 of the Constitution of Kenya Review Act is a significant product of modern constitutionalism which includes the constitutionalization of very progressive principles as the full participation of persons with disabilities in the political life of the nation (Art. 13.1.i and k.) or as the right of every citizen not only to form or participate in forming a political party, but the right to be registered as a voter and vote by secret ballot in any elections, including the election of office bearers of any political party of which the citizen is a member (another novelty: see Art. 54). The recognition of the full participation of persons with disabilities does include a quota system in order to implement their presence in all elective political bodies (no less than 5%: articles 13.1.k and art. 101.c.).

 

     

12. Few final remarks about the traditional and debated relationship between constitutionalism and effectivity cannot be avoided. The very quotations of parts of some African constitutions and the fact of referring to them as examples of modern constitutionalism might lead more than one reader to object that there is an extraordinarily long way between the however solemn proclamation of more than a sacred and valued principle and its true implementation. I certainly could not deny the truthfulness of a similar objection. However I can also offer some counterobjections in my turn.

 

First of all as I have already emphasized above, I am not aware of any constitutional text or constitutional proclamation of principles and values which has been matched by immediate, complete and integral implementation: in fact this applies to all normative processes, although by definition it is even more so in the case of constitutional norms.  Law is nothing else than the most sophisticated and complex system of social regulation which has been invented as yet: as such law is procedural and ignores any automatism. It is a very naive way of thinking to believe that to adopt a law is equivalent to have changed social behaviour or to say in other words that to pass a law is sufficient to produce an immediate change in social behaviour: it can happen, but mostly it simply does not. The passing of a law is a step, a phase and it only implies that the included rules have gained a specific form of recognition which tentatively should eventually produce their progressive implementation.  

 

Second, as a consequence of what I have just said, effectivity meant as actual application of the established rules is important but it is not, as mentioned above, the only criteria which allows to identifylegal norms and distinguish them from other kinds of norms (ethical, moral, of etiquette and so on). Even less so if we talk in terms of constitutionalism as a prescriptive theory concerning constitution-making and constitutional arrangements.  

 

As constitutional lawyers, when we speak about constitutionalism we may have to choose between the normative force of facts and the factual force of norms. The answer of those who believe in constitutionalism, I think, should be obvious and easy to predict and hopefully share: for the simple reason that although legal norms do not come from nowhere and mostly reflect true conflicts of interests existing in society, they still do not identify with simple facts because they tend to be the product of a more transparent and potentially transformative process, the only one which allows for a more extensive participation and some levelling of the inequalities inherent to all human polities.

 

 


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Engaging the Leviathan: Constitutionalism and the New politics in Africa, paper, ICES Annual Minority Rights lecture, Geneva, May 18, 2001

 

Kamrava, M. (1995)

Political Culture and a New Definition of the Third World, in The World Quarterly, vol. 16, no. 4, dec. 1995

 

Klug, H. (2000)

Constituting Democracy. Law, Globalism and South Africa’s Political Reconstruction, Cambridge, Cambridge University Press

 

Kotzé, Dirk (2005)

Constitutionalism and Democratic Transitions: Lesson from South Africa, paper

 

Matteucci, N. (1976)

Costituzionalismo, in Bobbio, N. & Matteucci, N., Dizionario di politica, Torino, Utet

 

McIlwain, C. H. (1939)

Constitutionalism and the Changing World, New York

 

Monyae, D. (2005)

South Africa in Africa: Promoting Constitutionalism in Southern Africa (1994-2004), paper

 

Morbidelli, G. (2000)

Lezioni di diritto pubblico comparato. Costituzioni e costituzionalismo, Bologna, Monduzzi

 

Nayak, V. (2005)

The Basic Structure of the Indian Constitution, from www.humanrightsinitiative.org

 

Pegoraro, L. e Rinella, A. (1997)

La nuova Costituzione della Repubblica del Sud Africa (1996-1997), in Rivista trimestrale diritto pubblico, n. 2, pp. 517-552

 

Rinella, A. (1999)

Repubblica del Sud Africa: unità e difformità del modello di Stato, in Carducci, M. (ed.), Il costituzionalismo ‘parallelo’ delle nuove democrazie: Africa e America Latina, Milano, Giuffré

 

Sisk, Timothy (1993)

The Violence-Negotiation Nexus: South Africa in Transition and the Politics of Uncertainty, in Negotiation Journal, vol. 9, no. 1

 

Sisk, Timothy (2004)

Negotiating Democracy in South Africa: Conclusions for Constitution-Making as Conflict Management, Denver, Oct.1, 2004 draft

 

Sternberger, Dolf (1990)

Verfassungstpatriotismus, Frankfurter a. Main

 

Sunstein, Cass R. (2001)

Designing Democracy: What Constitutions Do, New York, Oxford University Press

 

de Vergottini, G. (1998)

Le transizioni costituzionali, Bologna, il Mulino

 

de Villiers, B. (1994)

Constitutionalism and the New South African Constitution, in de Villiers (ed.), Birth of a Constitutions, Kenwyn, Juta & Co.

 

Vile, M. J. C. (1967)

Constitutionalism and Separation of Powers, London

 

Watts, Ronald L. (1999)

Processes of Constitutional Restructuring: the Canadian Experience in Comparative Context, Working Paper, Institute of Intergovernmental Relations, Kinston, Ontario

 

Wormuth, F. D. (1949)

The Origins of Modern Constitutionalism, New York

 

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§ Professor of Public and Public Comparative Law and Government at the University of Florence, Italy. Director of the Dept. of Public Law. Site: www.carlofusaro.it; e-mail address: carlo.fusaro@unifi.it

[1] The project has been submitted on Oct. 17, 2003 (AS 2544); passed by the Senate on March 25, 2004; passed by the Chamber (AC 4862) on Oct. 15, 2004 and introduced again in the Senate on Oct. 17, 2004 (AS 2544-B).

© I would like to thank Mrs Connie Ford Swanson whose suggestions were very pretious and helped me in making the English of this text of mine a little better than it would have been otherwise. I’m the only one to be blamed if the outcome remains mediocre despite her courageous efforts.

[2] It took place on the occasion of a conference on “Legislatures and Constitutionalism”, Banff, July 2004. The presentation was titled “An International Community of Legislators?” and it has now been published in Italy (see Barak-Erez 2005, 82). About the concept of “legal transplants”, see among others Watson, Kahn-Freund, Stein, Teubner, Schauer, all quoted in Barak-Erez 2005. In fact in comparative law the concept of “reception” is widely employed: it’s obviously meant to give the idea of “receiving” by a specific juridical order from external sources within the frame of one direction only transplants. For a good general introduction to it, expecially in the rich German literature, and on the various examples and ways of “receiving”, see Fedtke 2000, 15-57.

[3] An exceptionally vivid and effective description of the “big man” at the head of many African states up to 20-25 years ago and less can be read in Ihonvbere 2001.

[4] As a striking example one could quote the 1977 Constitution of Tanzania in which it is clearly written that a “sole political party” can «exercise final authority in respect of all matters» and furthermore, that «all the provisions of the constitution shall be pursued subject at all times to the jurisdiction of the party…»: Eastern European socialist constitutions and the Ussr constitutions themselves (1936 and 1977) implied the very same, but never in such an explicit and brutal wording.

[5] See, for instance, Kamrava 1995; and in Italy Pegoraro and Rinella 1997; de Vergottini 1998; Rinella 1999. Possibly some of these authors have reviewed their beliefs more recently.

[6] I hardly could name a country where such demanding standards can be fully and thoroughly ensured!

[7] The first conceives constitutionalism as the adoption of the universal principle of a commitment to limitations to political power, the latter has made reference to «the rise of world constitutionalism» (both quoted in Klug 2000, 2).

[8] There are authors who have started speaking of global and of globalising constitutionalism in regard to the phenomenon I’m talking about here. See Klug 2000 and Federico 2005.

[9] As recently as in 1976, constitutionalism was regarded a “recent” term. For the basic concepts discussed in this par. see McIlwain 1939, Wormuth 1949, Vile 1967 and Matteucci 1976.

[10] 5 U.S. (1 Cranch) 137 (1803).

[11] In Italian the term reads stato monoclasse and the author I refer to is M. S. Giannini (see  Giannini 1986, 35-68). 

[12] It’s not a case that this was also the time that proportional electoral law was becoming more and more popular and increasingly adopted. The link between the birth and the growth of the modern political party according to the German social democratic model and proportional representation is one of the main features in the development of the European political systems in the Twentieth century. 

[13] Federalism is anti-majoritarian by definition and it’s a powerful limit to traditional parliamentary sovereignty.

[14] Therefore not only the content of the constitutional arrangements but the method according to which they are  translated into legally binding provisions have become essential part of contemporary constitutionalism. By the way negotiated constitutional arrangements produce written constitutions and most often very detailed texts and therefore typically long constitutions.

[15] A tentative list of the main features of contemporary constitutionalism in Barbera-Fusaro 2004, 40. About the risks of poor or belated constitutional maintenance, see Watts 1999.

[16] In the same period the relatively influential new Swedish constitution of 1974 came into force: it certainly belongs to the same stage – and it does confirm the choice for a single chamber Parliament for instance: but obviously it was of a totally different kind of constitutional change.

[17] More accurate and complete classifications might be found in the works of several authors. See de Vergottini 1998 and Ceccherini 2002.

[18] In Europe a partial exception were Rumania (1992) and of course the entire process which dissolved former Yugoslavia in the Balkans (where neither constitutionalism nor external diplomacy proved able to prevent a bloody conflict; there was and there is an attempt to resort to constitutionalism afterwards, in order to prevent more potentially disruptive confrontations). Exceptions in Africa might be regarded among other cases, Eritrea, Rwanda and the Democratic Republic of Congo. 

[19] On these matters see Ceccherini 2002, and expecially the first chapter of her book (“a new phase of constitutionalism”), 3-26.

[20] This was the name of the alliance among the Western powers and the Ussr which defeated Italy, Germany and Japan and their allied in 1945.

[21] This (exclusion / inclusion) still makes the difference between constitution-making processes which intervene before or after major conflicts, although no rule can be traced, as the outcome may also depend on the nature and the human cost of the conflict.

[22] In Eastern Europe the informal but substantially binding negotiations took place within special unelected and self appointed bodies which were recognized as representative of most of society, some inheriting the name of the model of the organizations which had been active in the advancement of human rights where their protection had been severely constrained (“forums” or “round tables”, the latter to emphasize the equal standing of all participants). The link between the protection of human rights, transition and constitution-making was emblematic of constitutionalism by itself.

[23] The conflict was much more deeply rooted than in other situations: in the Eastern European nations for instance the process was relatively and unsurprisingly smooth because one of the two sides had suddenly lost both any societal and all external support, so it really was a conflict between most of the people against a discredited and de-legitimated elite; less so in Greece, Portugal and Spain but still the cleavage was less profound than in South Africa. In South Africa one could reasonably assume that the cleavage was one of the deepest that could be envisaged: furthermore the conflict was between a large majority, but not all the people, and an economically powerful minority with its militarily strong administration (however weakened by the loss of international legitimation). See among the other the decisive testimony of Hassen Ebrahim in Andrews & Ellmann 2001. 

[24] Similar although often less successful examples have been the national conferences peculiar of the French speaking Africa, also to be regarded as attempts to build an all inclusive process of juridification of political conflicts (see Bois de Gaudussuon 1996; de Vergottini 1998, 192).

[25] Although the role of the leaders is pivotal (see again Ebrahim in Andrews & Ellmann 2001).

[26] Julius Ihonvbere (cit. in V. Hart, 2003) put it in effective words: a democratic constitution-making process is «critical to the strenght, acceptability, and legitimacy of the final product».

[27] Constitution-making processes are extremely slow by definition under ordinary circumstances. This should alway be taken into consideration. It is an important warning against any impatience and against hurried conclusions (a frequent temptation among those who have invested a lot in negotiating a constitutional arrangement and tend to expect it to be implemented thoroughly or at least significantly in a short time frame). 

[28] However V. Hart herself does warn not to “romanticize” the achievements of participatory constitution-making: the chance always exists that a strong elite might offer participation as a charade. She regards the case of Zimbabwe (1997-2000) a sample of fake participation, for instance (Hart 2003).

[29] Deliberate in the sense that it is referred to what is not done hastily, but with full realization of what one is doing… A “deliberate decision” is a decision which is taken after thougthful examination. The idea that «a functioning democracy requires a continuous process of discussion» has been formulated in a deservedly well known decision by the Canada Supreme Court in 1998, which also refers to the duty to «engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change…» (Reference re Secession of Quebec, file no. 25506).

[30] Sunstein 2001, 243.

[31] In relation to Afghanistan see Schneider 2005 where the concept that process matters as much as substance is linked to what has happened since 2001 and where the too tight timeline is criticized; in relation to Iraq see Usip Peace Briefing 2005 based upon a report by J. Morrow where the «rushed constitutional process» is also severely criticized (not only in absolute abstract terms: one month for drafting a constitution is a «plainly inadequate period of time…»; but because the need to respect the very short timing entrenched in the transitory provisions, has brought about the non inclusion of one of the three main communities, the Sunnis). About  “quick plumbing” in constitutional matters with reference to Iraq speaks Fedtke 2005.

[32] J. Jhonvbere 2001 and even more V. Hart 2003 both stress the importance to conceive constitution-making as a process. In fact in Iraq the Sunnis have been brought back to a negotiating position thanks to the deal struck on Oct. 12, 2005: accordingly the new Constitution would have been voted upon (either accepting or refusing it, but avoiding the risk that the referendum might be null for not having reached the minimum requested consent and participation) by (most) Sunnis as well, on the base of an open committment by the Kurds and the Shiites to allow for some of the amendments requested by the Sunnis, immediately after the entering into force of the new constitution. This deal strikingly resembles the one which made the ratification of the United States Constitution possible over 200 years ago: the federalists committment to ratify it and to immediately approve the amendments of the so called Bill of Rights, amend. I to X (1791).  From this standpoint, the establishment of the American Constitution can also be regarded not as a punctual exercise but as a four years long process.

[33] Klare quoted in Federico 2005.

[34] I like the way a Japanese scholar recently put it: «unless a community is rooted in respect for the individual the legal system for constitutionalism cannot be established» in Higuchi 2001, 6 (a contemporary paraphrase of the 1789 Declaration, art. 16, to think about it). The same author significantly adds: «an essential precondition for Japanese society to embrace respect for the individual was the liberation of the weak from poverty and oppression…» (ibi.).

[35] About democratic constitutionalism, for instance, speaks H. Klug in Andrew and Ellmann 2001, 152. On the other side, it was none less than Immanuel Kant who distinguished the republican from the democratic “civil constitution”: the first being characterized by the consensus and the separation of executive and legislative power, the latter being regarded as another potential form of dispotism (inPerpetual Peace: a Philophical Sketch).

[36] At the SADC Mauritius Summit in 2004, a protocol was signed by participating countries which commits its governments to the rule of law and to democratic government.

[37] The European Union gathers 25 European states today; the Council of Europe 44, including Russia and Turkey. However while the Union is much more than a confederation and it can be regarded as a federal arrangement in the making, the Council of Europe has the more limited although fundamental aim to foster the protection of the rights recognized by the European Charter for the protection of Human Rights of 1950. Its peculiarity is that inviduals can directly appeal to its Court if they believe a right protected by the Charter has been violated and the national courts (to which it is mandatory to appeal at first) have not granted reparation. 

[38] It goes by itself that constitutionalism can become instrumental in a way in the expansion of a single nation’s or an alliance’s influence in a certain region: about this and about the role of the Republic of South Africa in promoting constitutionalism in its area of primary influence, see Monyae 2005 and Curtis 2005. I would be very reluctant to judge a similar development negatively at least in the short term and as long as the influence in favour of constitutionalism is exerted through peaceful and legal means.

[39] Furthermore, the European Union has since 1995 systematically inserted a clause on respecting human rights and democratic principles in accords negotiated with other countries. Although this might have placed the Eu «in the vanguard of international community’s endevours in this field» as the Eu Commission claimed, ten years of practice doesn’t generate the same optimism according to a recent report discussed by the European Parliament foreign affairs committee (see European Voice, 24-30 November 2005).

[40] Entirely devoted to the process of constitution-making in South Africa conceived as a major case of “reception” of constitutional law is Fedtke 2000. The book is mostly concerned with the reception of constitutional law rather that of constitutionalism; the author speaks of Rechtsstaatsprinzip rather than of constitutionalism and carefully follows how German constitutional law has been transplanted to South Africa, as he says «in varying degrees of success» (451).

[41] In part the importance of the Charter and the other documents of the anti-apartheid movent lays in the fact that they allowed first generation rights not to be perceived as “Western rights” or as Shivji wrote, as one of the main elements of the ideological armoury of imperalism, quoted in Federico 2005.

[42] This pattern is not unusual: actually it resembles what occurred in Italy after WWII when as a famous Italian constitutional lawyer and member of the Constituent Assembly wrote «a missed revolution was compensated by a promised one»: the 1948 Constitution was considered to be the product of this compromise. And exactly as some parts of Anc have resented their “missed” revolution, so for dozens of year following the enforcement of the constitution strong leftist minorities resented the postponement of a revolution that was bound to never take place, in the way they had imagined. The compromise between State redistributive capacity and the protection of property finally entrenched in the 1996 South African constitution has been noted by Fedtke 2005. 

[43] In his fundamental testimony published in Andrews & Ellmann 2001. In this essay he also rightfully stresses the important role of the opposite leaderships and, as he puts it in traditional marxist terms, their “political maturity” (which I would translate with the ability to perceive where the true balance of power was without either fear or illusion: where this capacity lacks and extremely sensitive issues are at stake, and of course this was the case, trouble invariably follows). 

[44] For instance de Villiers 1994; Andrews and Ellmann themselves in Andrews & Ellmann 2001; Hart 2003; Kotzé 2005.

[45] A broad-based national unity government involving the conflicting parties is typical of recent transitions, along with the agreement on the procedure and timetable for the drafting of permanent constitutional arrangements, see Curtis 2005. It certainly was not the case in previous transitions, for instance those after WW II: as they occurred after an external and/or internal war had already been fought to its very end, the unconditional surrender of one of the two parts in conflict. In the Italian case, for instance, teh part of the Italian society more directly involved in Fascism had no part in the transitional period management from 1943 through 1946, although it found some sort of representation when the Constitutional Assembly was elected. “Epuration”, the attempt to clean the institutions and the admnistration from all the persons involved in Fascism, was for several years a crucial issue which deeply divided the anti-Fascist political forces. In fact it was soon abandoned and limited to relatively few cases of heavily responsible individuals. When the –so to say – defeated party had been in power for a long time and had mastered extensive support, a integral “epuration” proves pratcically impossible: the Iraq case seems to confirm this. It’s a practical matter, not to mention that to up-root conflict a unitarian approach is always to be recommended (setting aside the need to punish those who personally committed major crimes: although even in this case experience teaches that pragmatic approaches are the only ones which work, however unpleasant and morally embarassing this might be to admit). 

[46] The adoption of proportional representation abandoning the better known and traditional plurality was the result of another effort by the Anc to meet the demands of the other political parties and expecially those who represented the old regime. The same can be said about the quasi-federal approach to the design of the center-local relations which was bound to be reflected by the final Constitution.

[47] The material constitution lives somehow under the formal or written one, but it is stronger than the latter, as it is the source of it. The deal I refer to,  could be grossly summerized as follows: you give me an elected assembly representative of all South Africans finally legally recognized as equals, I grant the protection of some basic rights particularly dear to you and your participation to a government of national unity (to take part of which your votes would not and will never again be sufficient). In other words it provided for the basic requirements and the only hope of a peaceful transition. Several authors speak of a constitutional process in two stages (for instance Kotzé 2005,Federico 2005): which is certainly true but I maintain that step one was the most significant and the most relevant constitutionally speaking..

[48] It must also be said that the identification of democracy with the sole majority rule could and should be questioned: it rather is rule by the people according to specific predetermined provisions, in respect of certain prearranged procedures and without the power to infringe certain predefined and enshrined values.This also is constitutionalism: according to which even the people is a sovereign which meets constraints and limitations in exercising its legitimate powers. 

[49] Other examples of a process of the same kind have been the constitution-making processes in Poland and Hungary. A sort of guided process had also taken place in Namibia where eigth Constitutional Principles, binding for the constitution makers, had been negotiated under the United Nations auspices, (Kotzé 2005).

[50] The role of referendums in constitution-making is a particularly difficult issue to evaluate: for an interesting discussion see Watts 1999.

[51] Andrews and Ellmann (Andrews & Ellmann 2001) define the Court a «counter-majoritarian institution», but they also regard it a «nation building institution», which holds the ultimate responsability to reconcile the various Constitution’s competing commitments.

[52] See Nayak 2005.

[53] The role of civil society is stressed by H. Ebrahim in Andrews & Ellmann 2001, 94-98 and in Federico 2005.

[54] Interestingly enough Jörg Fedtke forecasts that German constitutional law shall not exert long-term influence in the South African legal order because of the language barrier and the limited access to German case law (Fedtke 2000, 449).

[55] This is a major issue of the present time. Only pragmatic solution are feasible to my knowledge: conceptually speaking it is not possible to fully protect human rights (which are individual rights) if you have to grant protection to ethnical and community interests (rights) whose very existence may interfere with the protection of individual rights.

[56] Besides, the level of trust which developed among a realtively small number of negotiators was decisive, as it has been emphasized by Ebrahim in Andrews, P. & Ellmann, S. 2001 and Kotzé 2005.

[57] Timothy Sisk spoke about a «beyond the table tactic to influence negotiation» and a instrumental to be included and not marginalized in the negotiation process (Sisk 1993 and 2004).

[58] The concept of “conflict” itself might deserve further discussion. Both the nature, the quality and the proportion of the conflict influence the process. No one could doubt that there had been a deeply rooted conflict in South Africa and still it really never turned into a full scale civil war. This was what made negotiations among relatively “equal” parties conceivable in the first place and avoided a zero sumoutcome.

[59] In fact, the ratification of the constitutional tretay estbalishing a Constitution for Europe is now frozen after the peoples of France and Netherlands have voted against it.

[60] The problem has been the process, not the content.

[61] The expression was invented several years ago by former Chairman of the Eu Commission Jacques Delors.

[62] It has been published in the Kenya Gazette Supplement No.63  the 22nd August, 2005. It includes relative novelties as quotas for disabled persons within the representative institutions and constitutional protection of the rights of citizens within the political parties (Articles 13 and 54).

[63] See for instance art. 10 of the Italian Constitution (1948).