Constitutionalism in Africa: Creating Opportunities, Facing Challenges. J. Oloka-Onyango, ed. Uganda: Fountain Publishers, 2001. Pp. 345.

This extraordinary edited book of words, style, illustrations and arguments provides a relevant insight into African constitutionalism from the past until the present time, with projections into the future. Oloka-Onyango combines creative authors who use law, gender, literature, pan-africanism, language, politics, religion and ethnicity as disciplinary arenas of examination. The book is about re-writing African constitutions and constitutionalism in ways that reflect African people power. Whether by reverting to oral constitutionalism of African traditional societies as contributor Antonia Kalu suggests, or introducing positive discrimination quota systems for affirmative action (Sylvia Tamale), all the authors seem to agree that the phenomenon of executive prerogatives and excess cannot continue unchecked by law and principle.

What is constitutionalism? Kalu sees constitutionalism as the carefully crafted relationship between recognizable national ideas and the day-to-day practice of citizenship. She cautions against neo-colonial constitutionalism in Africa by continual use of “Western classrooms” models introduced in the colonial era. Likewise, several chapters acknowledge that many African governments and the drafters of various constitutions have manipulated the instruments in order to deny people their rights and freedoms. Analyses in all the chapters of the book reveal beyond doubt that the human rights schemes in various constitutions examined discriminate against both men and women and put undesirable restrictions on rights granted to people in international human rights documents. Particularly beyond that, there is a fair amount of agreement that in the formulation of African constitutions, women face the plight of the larger half; they face limitations on their sexual orientation (Mazrui, chapter 1), ethnicity (Gahamanyi-Mbaye, chapter 5), indigenous citizenship (Tajudeen, chapter 4), religious freedoms (Ola Aboa Zeid, chapter 10), and they are socially and economically under-privileged (Tamale, chapter 12).

Another observation is that neutrality in human rights is not guaranteed in African constitution formulation. In some cases, reservations have been made to various articles and principles of international law and human rights principles in the belief that the articles violate inter alia, (traditional cultural rights), the teachings of Sharia, human dignity, and established supposedly “moral,” sexual behavior and African custom. For example, Article 1(a) of the Cairo Declaration recognizes that all human beings are equal, albeit in human dignity not ‘rights’ (Zeid).

Most of the contributors acknowledge the advancements of the women’s movement, but note that constitutional provisions in many parts of Africa are still essentially masculine. Tamale (chapter 12), expounds on the affirmative action strategy introduced in Uganda to boost women’s political, social and educational achievements. Due to masculinist meritocracy, social privilege, and notions of African communitarianism, affirmative action has not translated well into female empowerment. She argues for positive discrimination such as affording education for all girls at primary and secondary education as a model affirmative action. Additionally, since most marriages are patriarchal (Tajudeen, chapter 4), patrilocal (Pereira, chapter 9), or patri-ligious (Zeid, chapter 10), many women run the high risk of losing citizenship in Africa. Pereira recounts a situation where in Nigeria married women who move to their marital states lose indigenous citizenship in both their father’s indigenous states and their marital states. As Pereira concludes, successful implementation of basic rights for women and men will depend on processes and relations that are largely extra-constitutional.

In Chapter 1, Mazrui tables the issue of sexual orientation, which is indeed controversial to Muslim Africa and parts of Sub-Saharan Africa. He argues that African constitutions have not been well formulated to serve the interests of the people, instead political leaders and cultural institutions have engineered notions of “acceptable sexual behavior”. Mazrui states that in many African states, such as President Moi’s Kenya, President Museveni’s Uganda, and President Mugabe’s Zimbabwe, individual offenses against economic and political order are tolerated more than individual sexual offenses. Homosexuals for example, are denied a place in some African constitutions. Conclusively, people-centered constitutions should limit state power in the African individual private life.

Negotiating religious differences in constitutional making is also discussed. In Chapter 10, Oba Zeid challenges the state-inspired interpretation of human rights principles using grassroots public opinion and action. Using the example of Muslim Africa, activities of liberal Muslims and public opinion should be encouraged to negotiate existing schemes to protect people of other religious beliefs and women from state-inspired interpretations of international law through separation of church and state.

A couple of the arguments made by some of the contributors are discomforting. For example, Kalu argues that ancestral constitutionalism is only unique to Africa and not in the United States and Eastern Europe. However, Native Americans had ancestral constitutions before colonialism, which have been maintained through meticulous oral history guaranteeing them rights of self-government, freedom of choice and expression within their own territories. Peter Walubiri’s argument that constitutionalism is a process of state empowering the people, contradicts the reality that people empower the state. Ola Zeid (chapter 10) supposes that restrictions in Sharia laws are unique in comparison to other laws in Africa. Yet, in “Christian Africa”, such restrictions occur in inter alia laws, relating to terrorism, the media, political association, gender and asylum. Zeid also dwells on married Muslim women but fails to demonstrate what Sharia law provides for single Muslim women and female youths.

This book is written entirely by African scholars working on the continent and Africa Diaspora and is not your typical scholarly piece. It is therefore good forage for activists, researchers, civil society, judiciary, legislators and all pan-africanists. Constitutionalism in Africa is a simple orientation for anyone and captures so eloquently the ongoing constitutional debate in Africa.

Doreen N. Lwanga
Research Associate, Refugee Law Project
Makerere University Faculty of Law