Entrenching Constitutionalism in African Countries: Lessons from America's Founding Fathers

By Mbaku, John Mukum | Texas International Law Journal, Fall 2019 | Go to article overview

Entrenching Constitutionalism in African Countries: Lessons from America's Founding Fathers


Mbaku, John Mukum, Texas International Law Journal


Table Of Contents

I. Introduction............90

II. Framing the Problem: Decolonization and Dysfunctional Constitution Making...........................................102

A. Introduction.............................102

B. The Struggle for Inclusive and Participatory Constitutional Discourse in Africa....................................107

III.The African Experience in Dysfunctional Constitutional Design.....113

A. Introduction..........................................................113

B. The South Africa Act: An Example of Non-inclusive and N on-participatory Constitution Making.........................115

C. The Legitimacy of Other Post-independence African Constitutions.....126

IV. The Federalists and Constitutional Design in Africa................................129

A. Thinking About Rights in African Countries: Lessons from America's Founders ..........................................................129

B. Confronting Constitutional Issues in Africa: Lessons from America's Federalists .....................................................................134

1. Learning from America's Founders: The Issue of Parchment Barriers .... 137

2. The Consent of the People as an Important Constraint on Government... 139

3. Domestic Faction and James Madison's Large Republic..........................141

4. The Separation of Powers as a Mechanism to Prevent Majoritarian Tyranny ....................................................146

4.1 Internal controls..............147

4.2 External controls....................150

5. An Independent and Competent Executive..........153

V. Summary and Policy Recommendations...............................155

I. Introduction

In 1918, Woodrow Wilson, then President of the United States, presented a speech to the US Congress in which he outlined his concept of self-determination.' He presented the following principle to the US Congress:

Peoples are not to be handed about from one sovereignty to another by an international conference or an undertaking between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed only by their own consent. "Self determination" [sic] is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their own peril.2

Scholars of international law have defined "self-determination" as "the right of a people organized in an established territory to determine its collective political destiny in a democratic fashion and is therefore the core of the democratic entitlement."3 In his speech, Wilson proclaimed the principle of self-determination as an "imperative principle of action."4 However, the principle of self-determination did not gain general acceptance even after the end of World War I. This was due primarily to the fact that post-war geopolitics were dominated and controlled by European colonialists, whose interests were in maintaining their colonial empires and not in advancing self-determination, especially for their colonies in Africa, Asia, and other parts of the world.5

As argued by Ofuatey-Kodjoe, "the allied powers never claimed that the subject communities had a right to self-determination under international law, except as it accrued from the international obligations of states created by international agreements . . . ,"6 The thinking of the time was that the fate of the African colonies, including the right to selfdetermination for the peoples of Africa, was dependent on two important external actors; namely, the European countries that colonized the Africans, as well as international or multilateral organizations, such as the League of Nations and later the United Nations.7 After Germany and Ottoman Turkey were defeated in World War I, their colonies in Asia and Africa were considered not politically and economically advanced enough to govern themselves. …

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