detail - Rule of Law Programme Sub-Saharan Africa (Anglophone Countries)
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The meeting marked the fourth time the Institute for International and Comparative Law in Africa (ICLA) of the Faculty of Law, University of Pretoria and the Stellenbosch Institute for advanced Studies (STIAS) in partnership with the South African Research Chair in Multilevel government, Law and Policy (SARChl) at the Dullah Omar Institute, University of Western Cape and for the very first time the Konrad Adenauer Stiftung Rule of Law Program for Sub-Saharan Africa had jointly organized such event.
The objective of the seminar was to examine the dynamic relationship between decentralization and constitutionalism in Anglophone, Francophone, Lusophone and Arabophone Africa. The participants discussed the established federal and hybrid systems across the continent as well as the emerging federations from the latter. There were also sessions on comparative studies on the constitutionalism of local governments and moreover how traditional leadership had and still has a great influence within the whole process.
To put decentralization in simple words it is – in a narrow view - the power shift from central to local governance and in a broader view decentralized federalization. Issues such as peacebuilding, the limit of the power of the central government and the development can be important outcomes in that matter. The reason why local governments play such an important role for all these issues is the fact that they build a direct link between the government and the people, without any more authorities in between. For large countries such as the DRC, decentralization dividing them into different provinces is necessary - let alone for administrative reasons already. Decentralization can be an important factor to deepen multiparty democracies. Although numbers showed quite clearly that South Africa, being the most decentralized country in that context, marks an exception in that terms.
It became obvious that even if there are written constitutions, most African countries have not implemented them so far and therefore the lives of the people have not changed in the way most had hoped. The constitutions tend to be perfect on paper but there is a lack of implementation on the ground. Ongoing problems such as corruption, prospects of fear and state authorities neglected the promises of the constitution.
Moreover the heavliy centralized system in most African countries is something they inherited by the continent-wide colonialism that then turned into dictatorships which are highly centralized unitary systems.
In order for decentralization to function the central governments ought to respect “the rules of the game” although even the subnational governments do not always adhere to the rule of law. It also seems that some local governments like in the example of Mozambique only exist to watch the region for the powerful center. They are often as vulnerable for corruption and lack of accountability as the centralized powers and their governors behave like small presidents within their county. In South Africa for example, one third of all municipalities are “infunctional”.
Moreover, a conflict with Islamic constitutionalism appears: there are 17 African countries with a Muslim majority, hence there is a need to find a way to incorporate the Sharia when it comes to constitutions. In Nigeria for example the Sharia was implemented by the state instead of radicals and therefore has not been as violent as people had feared since the implementation had been brought in a democratic way.
In Somalia, for example, they tried to adopt a unitary system of government based on the western style of liberal democracy due to their past as a British/ Italian colony. The question arose whether these western ideas might be even transferable to countries with an Islamic background and where tribalism still plays a major role on every level of daily life.
Ethnicity is an important factor and in Kenya for example decentralization is bound to different ethnics. It is therefore very important that despite the fact that every area is dominated by a certain ethnic group decentralization cannot become a tribal thing! In Ethiopia the constitution was designed to address ethnic claims to allow ethnic communities to govern themselves - but both has failed so far.
Although the mentioning of traditional leaders and institutions are usually absent in a decentralized system, they still play an important role in the daily life of many Africans (people in rural areas still trust their traditional leaders) and therefore somehow need be taken into account.
The problem arises when democratic decentralization collides with the undemocratic leadership values. But in the practice of Kenya and Ghana, the Bill of Rights overrules everything and traditional aspects only apply, if they are in accordance with the Bill of Rights. However, the problem that traditional leaders aren’t schooled in legal education still remains.
Another important point made is the fact that there needs to be more communication among the different competences as well as an exchange of solutions, what mostly occurs rights now is a wall-to-wall government with no interaction at all.
When it comes to the realization of constitutions, context is everything and you need to consider historical, social and economic factors, otherwise you just end up with a document. The constitutions often seem to be the source of conflict and division, which is contrary to what they were established for in the first place. And we should remember that the state is not only restricted but also objected to take actions by the constitutions.