What Should Africans Expect from Their Constitutions?
Mbaku, John Mukum, Denver Journal of International Law and Policy
I. THE NEED TO REGULATE SOCIO-POLITICAL INTERACTION
One of the most intractable problems in post-independence Africa is the failure of many countries on the continent to effectively manage social, ethnic, and religious diversity. (1) African countries are extremely diverse--such extreme and rich diversity can be traced to the various ethnic groups that populate these countries, the influence of European colonialism, as well as the influence of Christianity, Islam, and other external factors, which include globalization and significant migrations of people from one country to another. (2) The failure of many African countries to provide effective mechanisms for the management of the interdependence, as well as the conflict that invariably arises from religious and ethnic diversity, has produced various forms of violence and political instability. Some of this instability can be traced to destructive mobilization by groups that believe that national, political and economic policies have either marginalized them or placed them on the competitive disadvantage, especially in the distribution or allocation of the benefits of economic growth. (3) Such violent mobilization is said to have contributed significantly to brutal and extremely destructive civil wars in Liberia, Sierra Leone, Rwanda, Nigeria, Sudan, and Ethiopia, (4) as well as continued ethnic- or religious-induced violence in Kenya (following the 2007 disputed presidential elections), (5) and many other countries. (6)
While conflict, especially as it relates to the competition for scarce resources, is inherent in the diversity that spans most African countries, it is not necessary that such conflict becomes destructive, or that the various groups that exist in these countries resort to violent, and often destructive, mobilization in order to resolve conflict. Individuals, as well as groups, have a natural tendency to pursue and maximize their own interests and values and this naturally causes conflict. As argued by H. Geoffrey Brennan and James M. Buchanan, (7) "[o]nly the romantic anarchist thinks there is a 'natural harmony' among persons that will eliminate all conflict in the absence of rules." (8) This is true of individuals, as well as groups--be they ethnic, religious or otherwise--in Africa. Hence, to produce harmony, the behavior of individuals and collectivities must be constrained. Thus, as stated by Brennan and Buchanan, (9) "[w]e require rules for living together for the simple reason that without them we would surely fight. We would fight because the object of desire for one individual would be claimed by another." (10) As has been argued by many scholars, most of the destructive ethnic-induced mobilization in Africa during the last several decades has been due primarily to the absence of effective legal constraints on the behaviors of individuals and groups. (11)
Within each African country, as is the case in other societies, the desire by individuals and groups that inhabit these countries to maximize their various interests and values will invariably produce conflict. The natural proclivity of individuals and groups is to maximize their own values, and since the latter usually do not aggregate into a single set of community or societal interests, conflict usually results. (12) Thus, each society must seek what Brennan and Buchanan refer to as an "escape route" (13) from a state of the world characterized by violent and opportunistic mobilization by individuals seeking ways to maximize their interests.
Studies by Brennan and Buchanan have produced two broadly defined "escape routes" for societies facing this dilemma: (1) the capacity of individuals within society to love each other; and (2) the design of rules to provide mechanisms for the coordination of the actions of individuals, and the peaceful resolution of the conflict that arises from socio-political interaction. (14) The latter is usually considered a more efficient and predictable mechanism for coordination and resolution of conflict. …