This paper focuses on three recent Constitutional experiences, South Africa, Eritrea and Puntland State of Somalia in order to detect new trends in African Constitution making. The focus is not on the constitutional documents but on the process itself. The latter seems much more important than the former in Africa.
Constitutions are empty boxes until the fundamental question (does the armed man obeys to the unarmed?) is answered positively2. I believe, however, that the institution building exercise necessary for the adoption of a constitutional framework operates as intellectual and cultural "gymnastics"3 that might work in the direction of controlling power within a rule of political law system4.
The success of an African Constitution might therefore be predicted by the extent and the thoroughness of such exercise. I detect two important aspects of it. A technical one, related to the issue of the transferability and adaptability of foreign legal models in Africa5. A participatory one, connected to the degree of involvement of the people in the process. The technical aspect is located in the domain of professional law, and plays its role at the semantic level of lawyer's law. Two questions are to be asked here: a) what are the models used in the process of constitution framing and b) does significant local adaptation occurs in this process 6. The participatory aspect is related to the issue of legitimacy7. Two questions should be asked here: a) Is participation necessarily connected with western democratic institutions such as elections. b) What are the substitutes of democratic institutions at play in Africa today.
My conviction is that both the technical and the participatory efforts are important and should be carried on together, although in the present state of African institutional development (political law hegemony) legitimacy is more important than professionalism.
Professionalism without participation makes the institution building gymnastics entirely insufficient, because it does not decentralize the informal institutional constraints that are necessary for the armed man to obey the unarmed. It consequently fails in limiting power. An example of this kind of failure is the Ethiopian Constitution of 1994, a mere top down introduction of American Constitutional rhetoric 8. Participation without professionalism, however, might affect the quality or the international credibility of the resulting formal institutional setting. The negative impact might be perceived in the long run but does not seem particularly important at this point9.
For the purpose of this paper I view the constitution making process as an informal institutional constraint building exercise, usually aimed to the production of some formal document10. The formal outcome such as the production of a written constitutional document is in itself entirely irrelevant if the fundamental informal institutional constraints are not created and settled11. The shortcoming of much scholarship on constitutional law both within and outside Africa is its excessive emphasis on the understanding and explanation of the written document. This approach is fruitless in understanding the working of the Western constitutional democracies and is even more senseless in Africa12.
Leaving aside such advanced systems as England, in which the very existence of written constitutional documents is questionable, an approach limited to the explanation of the written constitution would be entirely nonproductive in the United States, where most of constitutional law is to be found in the working habits of Supreme Courts, both Federal and State. It would certainly be impossible to understand the Italian constitutional system, despite the rather modern and detailed 1948 Constitution, without a serious grasp of the many unwritten dynamics that determine the life of political parties.
Most of the "real life of the law" dynamics that can be detected in Western law through sophisticated tools (such as the separate analysis of legal formants13) are much more transparent in Africa 14. Africa is a traditional domain of unwritten law, the product of decentralized forces still active and effective at different degrees within a decentralized clan structure of society. Focusing on final constitutional documents without a secure grasp on how such forces have determined its production is a certain recipe for misunderstanding.
My idea is that a close observation of the constitution making process might show the real life dynamics of professionalism and legitimacy and is therefore a very promising way to understand the nature of constitutional law in Africa. The constitution making process is a concentrated institutional drama whose unfolding determines the future constitutional life of a country.
The paper proceeds as follows. Part two approaches some preliminary issues. Part three sketches some historical and political background necessary to understand the constitution making processes in South Africa, Eritrea and Puntland State of Somalia. Part four tackles the issue of public participation. Part five approaches the professional dimension from the perspective of import export of legal patterns, of foreign experts participation and of International political involvement.
Part five attempts some conclusions.
2. The issue of the State.
Two important assumptions of this paper should be disclosed at this point.
First I believe that the law in general, and constitutional law in particular, is always in a state of flux. This assumption explains my emphasis on the process15. The process by definition is never over. The eventual production of a document does not end the process of creation of constitutional law. It might, at most, be a convenient way for lawyers to indicate a new phase. In the metaphor of institutional gymnastics, the intensive training might be followed by a less intensive one once the constitution is ready but this is not necessarily so. The creation of an African constitutional culture and of an African legal culture is, indeed, a long term enterprise16.
Second, I believe in the utility and fruitfulness of talking about "Africa" and "African Law" as an object of observation17. Sure, within Africa (as everywhere else) there are many different local realities and crucial differences that good scholarship can not forget. One of the objects of this comparative law paper is precisely to describe differences between the three countries of my focus. However, knowledge can not be compartmentalized, and by the study of the differences also commonalties, both in terms of problems and of solutions, emerge. The emergence of a sufficient number of such deeply located commonalties justifies a taxonomy that groups the different African countries together. At least for the subject matter of comparing legal systems, African law is not too broad a category. Many scholars believe that broader categories such as legal pluralism or rule of political law are needed.18
Classification is not an end but a mean for approaching a given observed phenomenon. There is one feature, common around Africa, that connects together and justifies both from a positive and a normative perspective my choice of focusing on the constitutional process.
In Africa the fundamental constitutional issues of the State, both in terms of legitimacy and of extension are not solved19. Most of the boarders of the African States are mere colonial legacies culturally connected with a nineteenth century European ideal of nation State that has always been entirely foreign to Africa. Nations and ethnic groups are almost always located across the boarders so that the boundaries of the nation and those of the state practically never overlap. The consequences of this unprincipled importation of the Western State are extended unrest, war and genocide. Examples are easy to find and the Rwanda-Burundi-Congo saga between Tutzi and Hutu is just the most recent and bloody. Boarders are often the object of armed controversy such as that involving now Eritrea and Ethiopia. It would be very reductive to see this conflict, as many others modern African ones, as simple disputes over a few square kilometers of territory. Within a post-colonial context characterized by what is known as "internal colonialism", the real issue might be that of the leadership over a great Tigray20 in the moment in which the Ethiopian leadership, representing only a rough 10% of the people, simply looks incapable of exerting control on the Oromo in the south21.
In this unstable and changing context, a genuine constitutional process might not and should not take for granted the status quo both in terms of existence and of extension of the State. This is why a peaceful institution building exercise is more significant than its outcome for the time being. Reaching a Constitution perceived as final and emphatically advertised as opening a new era might sometimes even be a step backward from peace and stability. Given the high symbolic value of any constitutional document, if there is no proper participation of all the people concerned (whatever their State belonging might be at the moment) the whole enterprise might backfire. In other words, as a paradox of modern Africa, flexibility and willingness to experience alternatives to the Western State is strengthened by negotiated constitution making processes but might be weakened by their written products.
Even if the paradox was not accurate, it remains true, in Africa as everywhere else, that legal form without informal constraints over the use of armed political force does not solve any of the institutional problems affecting development.
3. Some background.
The focus of this paper is on three most recent African experiences, that might well be considered still work in progress. South Africa, Eritrea and Puntland (North East Somalia) have recently engaged in thorough constitution making processes. These are very different African contexts, arguably not representative of the majority of sub Saharan Africa22. Nevertheless, I have picked them up only in part because I have some first hand knowledge of them. More importantly, I believe that the greater are the differences the more significant are analogies and general observations. These three countries not only are at very different stages of development (and the patterns of legal transplants among them confirm some theory23) but the involvement and willingness to cooperate of the international community has been very uneven. However their constitutional processes share the crucial characteristic of thoroughly tackling both legitimization and professionalism. They can, consequently, be interestingly be compared from my perspective.
A) South Africa 24
The south African Constitution making process, can be considered beginning in February 1990, when President De Klerk officially announced his intention to release Nelson Mandela, the historic leader of the ANC detained for 27 years on political charges. The previous tragedy that the process was aimed to solve was, as it is very well known, apartheid. The main target and ambition of the process was an equal society.
Among the reason, mostly demographic and economic, of this process of power release by the white minority usually offered are: high international pressure, internal political resistance mostly organized by the ANC, internal division of the whites, not all of whom were racist. It would be beyond the scope of this paper to discuss this issues. Certainly the South African process has enormously benefited from international participation both economic and political. It is fair to consider the process the only important success of Butros Ghali's tenure at the United Nations.
In September 1991, after some negotiations (and the repeal by the Government of the symbol of apartheid, the Population Registration Act), representatives of 27 political organizations signed a 33 pages document, the National Peace Accord, containing the rules of the game for further negotiations aimed to general elections. After more than two years of negotiation in an increasingly violent environment, mitigated by a thorough effort of Constitutional education of the population lead by an independent Constitutional Commission, the Provisional Constitution of the Republic of South Africa (Act 200 1993) has been approved in December 1993. The provisional Constitution has been decided to enter in force on April 27 1994, the day after the beginning of elections. It contained the fundamental principles that the final Constitution, to be approved within two years by the newly elected Parliament in a Constitutional Assembly Capacity had to respect.
Within a rough oversimplification of a complex political process, we can say that the main tension that the Provisional Constitution had to solve was between the political parties representing the black majority (notably the ANC) that could easily be predicted to win the elections, and the political forces representing the white minority (and the Government) fearing that their rights could be violated in a retaliatory attitude of the formerly oppressed backs. The former political forces were emphasizing the lack of legitimization of the Co. De. S.A. (Convention for a Democratic South Africa) the negotiating body in which formal negotiations were carried on since late 1991, in which only seventeen political groups and the Government were represented. The Government, on the other hand, was emphasizing the need of securing the rights of the minorities against the feared tyranny of the majority 25.
The solution worked out in the provisional Constitution has been thoroughly original: the compatibility of the final Constitution with 34 fundamental principles contained in the Provisional one had to be certified by the newly established, highly independent and respected Constitutional Court. The Provisional Constitution, moreover institutionalized a power-sharing national unity government to stay in power until the 1999 elections. After the elections (Mandela's African National Congress 62.6%; De Klerk's National Party 20,4%; the Zulu Inkhata Freedom Party contrary to the process until the last minute 10,5%) the new Constitution has been approved and voted with the required majority in may 1996. On September 6 of the same year the Constitutional Court with an impressive work of review of the whole document has declined certification until some modifications were introduced. After the changes have been entered by the Constitutional Assembly on December 10 1996 (Act 108, 1996) the Constitution of the Republic of South Africa was finally promulgated, completing this phase of constitutional process.
From the perspective of the process two aspects of the Constitution are to be emphasized at this point. First, the creation of a Constitutional Court and of a detailed Bill of Rights, entrusts in the high Court a huge institutional responsibility for the following unfolding of the South African constitutional life. This institutional solution represents a dramatic break with the previous form of unlimited Parliamentary sovereignty inherited from the British Westminster system that has been so much distorted in racist South Africa. Second, the consciousness of the needs of a difficult transition has lead to the creation of an impressive variety of independent constitutional authorities which can be seen as sharing the function of thorough constitutional education of the people as well as of continuing an effective constitution making process in the sense of creating the informal constraints that can make the paper law effective. Among others, we find a Human Rights Commission in charge of the effectiveness of the bill of rights, a Gender Equality commission to tackle the difficult issue of women integration, a Public Protector modeled on the Scandinavian Ombudsman and an Electoral Commission.
Eritrea started the constitution making process after thirty years of independence war. Such war was surrounded by significant indifference and even hostility from the International community. Its main purpose can therefore be considered the assertion and international recognition of a new State after decades of oppression from Ethiopia27. 1991 is the year of the final military victory of the armed struggle against Ethiopia begun in 1961. In may 24, Asmara has been liberated and the day after was the turn of the port of Assab.
Menghistu Haile Marian fled Addis Ababa on May 21, following defeats from both the Eritrean Front (EPLF) and the tigrine military organization in Northern Ethiopia (FDRPE). Very short negotiations in London (may 27 and 28) with the assistance of the United States were enough to persuade the new Ethiopian rulers to recognize the right of the Eritrean people to decide over their future. The deal, ratified by a Conference for Peace and Democracy attended by 25 Ethiopian political groups, held in Addis Ababa in July, was cut in the following way: Eritrea could decide by means of a referendum to be held by 1993 whether or not to create an independent State. In consideration Ethiopia was to be granted access to the sea from the port of Assab.
The Referendum was held between the 23d and the 25th of April 1993. 99.8% of the people expressed a "free and fair" vote for the creation of a new independent and sovereign State. On May 24, 1993 the second anniversary of the liberation of Asmara independence has been officially declared. Four days after Eritrea became an official member of the United Nations.
After more than five years from that emphatic day the Eritrean people have not been called to the polls. Nevertheless a full fledged constitutional process with a final document approved but never signed in force by President Issaiah Afeworki has been carried on. The legitimating factor has been of an effective and charismatic guerrilla leadership and an almost unanimous vote for independence interpreted (by such leadership) as a full endorsement of its power. Interestingly, the legitimating power of military effectiveness has been used as a substitute for elections as recently as last summer when the relationship with the new Ethiopian leadership dramatically changed.
The Constitutional making process was started very soon by the Front, which became both provisional government and single political party. In February 1994,infact, the EPLF ( Eritrean People Liberation Front) was officially transformed in a political party and changed its name into People's Front for Democracy and Justice. The main formal sources of Constitutional law in Eritrea are Proclamations 37/1993 and 52/ 1994. Such sources set forward the constitutional process aimed to the creation of a final Constitution (by 1997) as well as to general elections 28.
According to the Proclamations, the National Assembly (made almost entirely by Front's officials) had to create a Constitutional Commission with the duty to draft a proposal of Constitution and to develop the instruments to guarantee the participation of the people in the Constitution making process. The product of that process was to be adopted by an "organ representing the people".
By Proclamation 55 1994 the Constitutional Commission of Eritrea was established.
According to Art.4 the Commission had to animate a national constitutional debate and constitutional educational process by means of public workshops and lectures on constitutional principles and practices. After this phase the Commission had to propose a first draft to the Constitutional Assembly. After a discussion within it and more public debating, the final draft ready to be officially approved by a democratically created representative organ had to be submitted.
The Constitutional Commission, formally took office on April 17 1994. It was made of fifty members nominated by the National Assembly in such a way to represent rural and urban population, different ethnic and social groups, former guerrilla soldiers, members of the Eritrean people abroad. All individuals capable of contributing to the Constitution Making Process, in observance of the language of the Proclamation. Ten of its members made the Executive Committee. Its chair was a prominent Eritrean legal scholar, educated and teaching in the United States, for many years active as a supporter of the EPLF from abroad.
A number of subcommittees were created for the different chapters of the Constitution with the aim to collect information and sources needed for the successful drafting and for a clear perception of the issues and the choices to be made. A Civic Education and Public Debate Committee, possibly framed after the South African experience that lead to the Provisional Constitution, organized hundreds of meetings in the cities, villages, countryside to involve the population and the soldiers in the military facilities. Meetings were also organized abroad within the Eritrean communities. Eventually even stable offices of the commission were located in many communities to explain the process and absorb input.
Interestingly, this impressive effort was completed by the creation of two consulting committees. One was made of fifteen foreign experts in constitutional law from the United States, Europe, Africa and the Middle East. The other was made of forty-five elders and religious leaders of different groups experts of traditional customary law. While the involvement of the former was technical or perhaps aimed at international legitimization of the process, the latter was less technical and more legitimizing. Both these committees met and the different position papers created by the Commission were thoroughly discussed in an International Conference held in Asmara in January 1995. The (first) Draft Constitution has been submitted to the National assembly in July 1996 and approved with a few amendments. The draft has then be discussed again throughout the population and in March 1997 the final draft of the Eritrean Constitution has been approved and was supposed to be discussed and approved by an ad hoc elected Assembly. In fact it has been approved by a body entirely dominated by the EFDJ and possibly because of the new international situation never signed into law by the President.
c) Puntland State of Somalia29.
Puntland, the territory north East of Somalia, also known as Mijurtinia recently started its constitutional making process in an attempt of reconstruction after eight years of a civil war disrupting the whole Somalia. The Puntland Constitution making experience stems from conditions of relative peace and prosperity of this region, mostly populated by Darod people. Midjurtinia (Puntland from the old Egyptian name of this area) was traditionally ruled by a king, the Sultan or Bochor. Traditional leadership, decentralized in many local elders, is still very vital30.
When the civil law erupted in Mogadischu and throughout the country after the fall of President Muhamed Siad Barre in January 1991, many white collars in Mogadishu, originally from Puntland, came back home carrying along political expertise developed during many years in the capital, where many Darod under Siad's rule have been able to occupy important political posts. But Midjurtinia also suffered under Siad, as witnessed by the long incarceration of the present Puntland President elect Abdullaahi Jussuf.
A number of the first parties created to resist Siad Barre's dictatorship, most notably the SSDF, were created by Puntland people. A number of these anti-Siad politicians came back from abroad. In an effort to regain law and order indispensable for the thriving trading activity across the sea, this sophisticated leadership frustrated by the continuous failures of dozens of general Somali peace conferences, (in Djibouti, Ethiopia, Yemen, Kenia, Egypt, Somalia among other) decided to try a different path.
After total rejection of the agreement among faction leaders signed in Cairo (basically an accord between the Ali Mhadi and Aidid clans) a conference "to redefine the political destiny" was called in Garowe on March 1998.
At this first conference a decision was taken to start a thorough constitutional process based on three fundamental points.31 A) to abandon the notion of creating Somalia from top down approach and replace it from bottom up approach. B) to propagate for other Somali groups and territorial entities to create similar administrative systems. C) after the establishment of regional administrations, to begin negotiations for the reunification of Somalia on federal bases.
The Constitutional process as far as the future federal Puntland State was concerned was scheduled to start on May 15 with a Constitutional Convention in Garowe aimed to approve a transitional constitutional charter, and to elect all the officials of the new State.
The issue of legitimacy was entirely delegated to that traditional leadership that has been recognized the merit of not allowing the North East of the country to be as badly disrupted as other areas. The traditional leaders were supposed to select on local bases the representatives of the regions of Sool, Sanaag, Nugaal, Mudug, Bari and Buuhodle District "who are descendants of same ancestor" acting as delegates to the Constitutional Convention of Garowe.
A preparatory committee of 25 members, representative of the different areas as well as of different political groups and religious leaders was also appointed with the task of drafting a proposal of a Constitutional Charter to be discussed, changed and approved by the conference.
The International community has been approached for help in preparation of the Constitutional Convention. The request of help was treated with a lukewarm attitude. Two of the area involved, Sool and Sanaag were formally part of the former British Somaliland (North West of Somalia) that had long declared itself independent short after the beginning of the civil war. Somaliland has never been formally recognized as a State, but de facto a large involvement of international NGO's occurred. The fear was that the secession of Sool and Sanag could create troubles. Consequently, the only help provided has been a small group of four scholars,32 under the coverage of the United Nations Development Office for Somalia. Such experts met with the preparatory Committee in Garowe in the month of April and a document has been produced to serve as a base for the Constitutional Conference.
After hectic consensus building activity by the preparatory committee, the Constitutional Convention was finally opened in Garowe under the chairmanship of a senior traditional leader on June 6 1998.33 The Convention was attended by 512 official delegates representing the regions and the Somali Diaspora abroad. The conference was finally over on July 23, 1998 with the President and Vice President of Puntland sworn in office with very large majorities, the House of representatives of 69 members duly appointed by the local traditional leaders, and many more important decisions taken about the provisional Constitutional form of State.
The unfolding of the conference, a remarkable example of institution building gymnastics, would deserve a paper itself. Suffice here to say that unanimous agreement of the elders was always sought on difficult issues before voting and that a number of changes to the document prepared with International assistance, not merely cosmetic, where made at the convention.
The approved provisional Constitution of the State of Puntland does not spell out the next phases of the process in detail. However a Constitutional Preparatory Commission, inspired by the Eritrean experience, has been provided for in art 28 of the Charter. The Article reads as follows: "The House of Representatives while consulting with the Executive Council and the High Judicial Council will appoint the Constitutional Preparatory Commission which shall consist of:
a) Members of the House of Representatives
b) Members from the Judiciary and Attorney General's office
c) Members representing the executive Council
d) Valuable members who the Executive Council will appoint- from te public and foreign experts if needed.
28.1 The Constitutional Preparatory Commission will be established as soon as possible considering the magnitude of the task expected from it.
28.3 The Constitutional Preparatory Commission's tasks and responsibilities will be defined by special law.
28.4 The new Constitution of Puntland will be in use on the date in which it is ratified by vote."
Although art 28.4 does not spells this out, it is clear that such vote, in the intention of the Constitutional Convention, should be by popular Referendum. Indeed Art. 13 expressly bounds the Executive Council to "organize and support the work of a Constitutional Commission, and prepare a Referendum to endorse the Constitution". Moreover President Yussuf in his first presentation in front of the House of Representatives expressly pledges that "After completion of the Puntland Constitution the Government shall establish a committee which carries out the National Referendum and the total acceptance and approval of the Constitution by the People of Puntland"34.
Finally it should be mentioned that, realistically, art. 34 of the Constitution provides as follows:
"If for any reason after the three transitional years, the Constitution is not ready, the House of Representatives and the Executive Council will automatically be dissolved. The responsibilities of the President should be transferred to the Chief Justice of the Supreme Court, who is required, within thirty days to call for a conference in which all the regions of Puntland will participate to discuss the new circumstances".
d) Commonalties and differences of background.
The three constitutional experiences that I have briefly described, although very different from many points of view, share some important aspects. To begin with, these constitutional efforts are responses to genuine revolutionary moments35. This is not a process of constitutional reform aimed at improving the existing institutional structure. There is a necessity here of a new start aimed at a new basic institutional arrangements. The previous institutional structure (the Apartheid law in South Africa; Ethiopian Law in Eritrea; civil war tribal legal decentralization in Puntland) is considered entirely unacceptable; the institutional actors are new or at least in search of a new formal legitimization.
These are constitutional processes aimed to a genuine change, in a sense to the building of an institutional structure capable of governing peaceful, wealth maximizing transactions36. As all processes of institutional change, also these ones are characterized by important aspects of continuity. Not only the undesired kind of institutional continuity, a sort of legal path dependence that might frustrate attempts to change37. There are aspects of desired continuity.
All the three experiences are eager to save something of the existing informal institutional structure. South Africa has developed, before and during the apartheid era, a remarkable legal culture that is willing and eager to maintain38. Eritrea has organized in the occupied territory an institutional structure based on military hierarchy that was successful in creating a sense of self sufficiency and of responsibility that the system is willing to keep39. Puntland is proud of its traditional leadership and emphasizes its role to an extent that to the best of my knowledge is unprecedented.
The point of departure, however, could not be more different.
South Africa enjoys a modern administrative structure that is the most advanced in Africa. The State has always been strong and well developed. The constitutional process was aimed to a change in the political leadership, to an enfranchising of the majority of the people. The real issue here was occupation of the positions of power in a well organized, though racist, State hierarchy. The equality of formal possibilities was at stake. Such predominant worry for equality is reflected in the text of the Constitution that never mentions multi-ethnicity in a remarkably multiethnic environment40.
In Eritrea the administrative experience of the guerrilla in the territories was more similar to the hierarchical structure of a State or of a Party than to a decentralized model of power sharing. Schools, hospitals and other public goods were successfully provided in the guerrilla-occupied territories. Moreover, the Ethiopian State never ceased to claim sovereignty41. A State and a hierarchical organization never really stopped to exist in the areas of the country, most notably Asmara, that were still under Ethiopian rule.
Only Somalia completely collapsed as a State. Since the beginning of civil war this is the one spot on earth in which no State organization, however tiny and ineffective, claims sovereignty. Puntland was a society that has entirely decentralized its power. Peace and order have been kept by traditional arrangements. There were no hierarchically based police, no army, no schools, no hospitals. All functions usually carried on by the State were de facto privatized. Possibly Islam played an important role from the perspective of organizing the society since it was one of the few concentrated depositories of political power. True, the nomadic character of much of the Somali people never allowed the Somali State to develop as a territory-based centralized organization as elsewhere42. The absence of it in Puntland might consequently be interpreted more of a signal of continuity than of change43. However, the colonial experience and thirty years of independence had built in Somalia some hierarchy that is now disappeared and that the constitution making process of Puntland is trying to rebuild44.
Summing up comparatively we can detect a continuum in the degree of centralization of power and of development of a State institutional structure from South Africa to Eritrea to Puntland State.
4. Legitimacy and Participation
An important aspect from which to compare constitutional processes is the degree of political pluralism. From this point of view, South Africa and Puntland State show some analogies. The Eritrean experience stands alone.
Both in Puntland State and in South Africa the general balance of political power during the constitutional process has been very unclear and certainly never clearly in the hands of one group. In a way, both in South Africa and in Puntland, internal political division among different groups (political or ethnic does not matter here) could (and in Puntland still can) stop the process in any moment. This apparently negative aspect is nevertheless a signal of genuine competitive constitutional making experience aimed to draft rules of the game with no clearly defined group leading the dance. To put it within the armed unarmed metaphor, the "armed" were divided and there was substantial competition over arms. Constitutional making activity substitute in a peaceful way armed competition.
In Eritrea, on the other hand, after the success of the armed struggle the power structure and the monopoly of arms has always been clearly in the hands of the EPLF. There is no competition for power going on. The constitution making activity does not substitute internal armed fighting that would not occur anyway given the balance of political power.
In other words, the constitutional process has been an invisible hand dynamic in South Africa and Puntland, while in Eritrea it has been a centrally planned decision. (This incidentally explains the continuing procrastination of the idea of pluralism of political parties).
This does not mean that important issues were not at stake also in Eritrea45. Suffice to think about the issue of gender integration, de facto reached by women fighters during the war and now creating so many problems to be recognized by the traditional culture of the society. Nevertheless, this issue is possibly less dramatic than the choice between an Islamic and secular system in Puntland or the degree of effectiveness of minority protection in South Africa. For at least one reason. The positions conquered by women during the guerrilla were never threatened at the Constitutional level. They were actually fostered by the regime.
In Puntland the tension between Islamic conservatism and secular leadership is a much more close case. The Constitutional charter shows the compromise in a question that certainly is not solved yet.
Something similar can be said for the issue of traditional leadership and monarchy in South Africa a question that some decentralized aspects of the constitution have been able to push at the local level. More clearly the issue of effectiveness of minority protection can at any moment blow at the roots of the new constitutional equilibrium.
The idea of involving the masses in the process has been pursued both in South Africa and in Eritrea. This might be a transplant from the former to the latter. In both cases this attitude was not however what I would regard as a bottom up experience. True, it was immediately clear, both to the EPLF and to the provisional government stemming from the South African Negotiations, that the constitutional process could not remain a mere professional business. Public participation in the form of seminars, discussions, conferences etc. had a legitimizing function of the power arrangement leading to the Constitution. It possibly had also a fund rising function (particularly from communities abroad and International institutions)46.
It is very unlikely that it had many chances of receiving actual observations from the people if not at a very marginal level. From this perspective can be charged of having been a slightly paternalistic approach. A good example can be the issue of traditional leadership. There is no question that in the South African as well as in the Eritrean rural society, such kind of leadership still enjoys tremendous influence. Its inclusion in the Constitutional process could not be avoided. The political leadership however has been successful in reducing it at a rather "make up" level rather than allocating genuine powers or considering it thoroughly influential in the making.
To the contrary, in Puntland the real novelty has been the "bottom up" nature of the effort. The participation at the Garowe conference and at the preparatory phase was quite spontaneous and the large number of delegates, selected by the traditional leadership, was possibly evidence of real grass root involvement of a large number of people other than professional politicians or lawyers. The impact of these people is clear (in the good and the bad) if one compares the document submitted by the preparatory committee with the final Charter produced after the two months of Constitutional convention in Garowe.47
This effective, popular participation in the making of the document was almost absent in Eritrea where people were more educated about choices taken by others than involved in making them. The overwhelming vote for independence in 1993 was interpreted to make up for any other lack of political pluralism. In South Africa although the election of the Constitutional Conference gives to the charter a much stronger democratic legitimacy at least for western eyes, the whole process was framed in order to avoid a majority kind of democracy. The Constitutional Court's decision making was used to "certify" that the draft produced by the democratic elected people was not at odds with the deals struck by the political elite. Again this process has been run from the top48.
It remains to be seen whether the Puntland experience will actually involve a substantive amount of ordinary people. One only needs to consider the actual situation in Africa, affected by a high degree of illiteracy characterizing the society to accept that a certain degree of top down decision making is completely unavoidable. Nevertheless the failures of democracy and participation are usually less dangerous than those of authoritarian rule. Certainly while the former might itself lead to decentralization of institutional constraints, (useful gymnastics) the latter only reinforces present models of African leadership, a leadership that never solved the fundamental problem of the peaceful succession.49
Generally speaking one can say that the amount of professionals law involved in a constitution making process is a variable depending on a large number of factors. The availability of local professional lawyers and the degree of political openness of the system being the most important. The willingness of the international community to cooperate might be another important factor.
One could detect the optimum level of professionalism in constitution making somewhere between two extremes. A purely technical constitution, in which professional expertise dominates the formal document. A purely political product in which a document is drafted outside of any technical control. In the first case the document is likely to have a somewhat cosmopolitan flavor, to be a depository of prestigious international solutions but at the same time to be poorly adapted to local circumstances. Professional lawyers tend to work outside of contact with the felt needs of the society 50. A purely political constitution, on the other hand might be much more original and suited to the local circumstances. The problem is that the lack of professional culture makes it unlikely that the worries of the political forces involved in the process might actually be reflected by the constitutional document in a coherent way. In other words, political desires might be expressed at a semantic level that makes them entirely void of effectiveness once we come down to the real life of the law51.
It is impossible to say ex ante what is the optimum mix between professionalism and politics, so that the previous observations have no normative meaning whatsoever. Nevertheless, as an analytical device for comparison, the described tradeoff might be quite useful.
Professional law can be either the product of local culture or an import from abroad. Typically in Africa the latter is the reality52. One can generally observe that the more local professionals you have available for constitution drafting purposes the less you need foreign experts. One could therefore predict that South Africa with its well developed legal culture would not import much expertise while Eritrea and Puntland would be much in need of transplants53.
The highly developed and educated legal community of South Africa, particularly the academic one, was not, in general, particularly compromised with the apartheid régime. In South Africa, as a consequence there was plenty of technical legal expertise although unevenly representing the black majority. Nevertheless the South African constitution making process has been significantly helped by a very large number of international experts, mostly from the United States and Europe who have been active particularly in the drafting of detailed technical rules on such things as local administration, taxation, organization of justice etc.54
Eritrea did not enjoy such a developed community of local professional jurists. A few very well educated lawyers, usually with degrees from USA, France, Italy or the USSR, were indeed available and one of them served as the chair of the Constitutional Commission55. This however was far from enough and the reliance on foreign expertise has been more a matter of necessity that of choice.
As to Puntland, the local legal expertise is close to zero56. There has not been any significant return from the Diaspora, and even lawyers trained at the Italian University in Mogadishu were not in a self confident attitude. Actually the desire to cooperate with international scholars was more in their side than in that of the political leadership.
The degree of participation of foreign lawyers is also a function of the openness of the local political and legal culture. The legal culture was traditionally highly open in South Africa with a large number of internationally recognized legal scholars maintaining contacts in such places as Scotland, Germany or the United States57. Such academic connections were important in keeping South Africa on the chart during the internationally ostracized apartheid regime, and have been even more important in selecting the international experts to be involved in the reconstruction of the rule of law, when experts have been involved from all over the places, particularly the United States.
Eritrea is politically very suspicious and the relationship between law and politics is realistically considered very close by the local authorities. Legal scholarship and research, particularly by foreigners, is not encouraged and the attitude towards customary law seems rather lukewarm at this point58. Despite this attitude, some connections have been worked out mostly with Americans, Dutch and to a lesser extent Italian legal scholars. As already mentioned foreign jurists have been formally involved in the constitution making process, although the degree of effectiveness of their impact is not clear at all.
In Puntland foreign participation has bees an issue, particularly because of the very careful attitude of international cooperation and donors after years of failure of Somali peace talks. Foreign experts have been offered as a technical help to the preparation of the Garowe Constitutional Conference by the United Nation Development Office for Somalia. But this was not exactly what the preparatory committee, eager and in need of direct financial help was looking for. As a consequence, part of the more traditionalist components of the committee had a less open attitude towards foreign participation. Nevertheless the international contribution to the preparation of the Charter was not trivial and a foreign participation is contemplated within the Constitutional Commission whose role is described in the charter approved in Garowe. In a way both in Puntland and in Somalia international involvement has been an issue because of the careful attitude of the International community in front of the political process of these countries. To the contrary, in South Africa where the international participation has been crucial from the very start of the political process, and where a well developed local academic community was available, international professional involvement came as a matter of course.
Summing up, the relationship between law and politics is once again crucial in understanding the process of legal development in Africa. If professional law successfully vindicates its autonomy from the political process, then it becomes entirely natural to take a cosmopolitan approach to the matter and look for foreign technical aid. This has long been the case in South Africa. A high degree of legislative positivism allowed professional lawyers to passively witness the destruction of the rule of law during the apartheid era under cover of legitimacy of whatever was formally law59. International institutions such as the World Bank, after the end of the cold war gave up the assumption of the connection between law and politics which has long precluded them to invest in the upgrading of legal systems 60. In South Africa these two conditions have created the ideal environment for a thorough and knowledgeable technical involvement in the constitution drafting. And the outcome is technically admirable and actually sets forth a model for the new generation of African written constitutions.
In Eritrea and Puntland State the wonderful fiction of the neutral and technical nature of constitutional law has been more difficult to accept: the lack of a local positivistic legal tradition, and the fundamental structural characteristics of legal systems where political decision making is still hegemonic on the law work in the direction of keeping law and politics strictly connected in the constitution making process. Consequently, witnessing foreign (technical) involvement in a process that is considered deeply political develops in some influential quarters the (legitimate) fear of neocolonialism61.
Generally speaking, the observation of these three patterns of constitution making confirms the difficulty of keeping separate what is technical from what is political in constitutional law.
At the beginning of this paper I asked a few questions. This conclusion sketches some answers.
Participation and legitimacy live in Africa a life that is entirely independent from elections. Elections have mostly an international legitimating role with little internal impact. In South Africa most of the constitution making process was precisely aimed to reduce the foreseen outcome of democratic elections on the Constitution. In Puntland a high level of public participation was reached entirely outside of any idea of elections. In Eritrea elections have been promised but never actually carried on. The have been felt useless. Legitimacy of the leadership is grounded elsewhere, typically in the war 62. Generally speaking traditional legitimacy and skillful use of force are still leading legitimating factors in Africa. How these notions might become compatible with a formal constitutional framework is the present challenge that requires creativity and open mindedness on lawyers and political scientists interested in the phenomenon.
On the professional side, one can observe that the shopping around is quite extensive. Certain aspects of successful western experiences seem to attract the interest of African constitution makers. Constitutional adjudication is felt as important everywhere. The Court in which is vested does not matter so much. It might formally be the Supreme court or an ad hoc Constitutional Court. What matters is that it is important to limit the authority of the legislative and executive power. Constitutional adjudication is also limited to the highest levels of the judicial hierarchy. Decentarlization, federalism, subsidiarity are also important notions taken from the more advanced constitutional experiences of the west. These are however delicate issues, encroaching in the fundamental stake of ethnicity. As a consequence of their political temperature the choices are wisely kept quite ambiguous. The Presidential model borrowed from the United States seems the most successful form of government. This scenario offers the impression that seen from outside of it the Western Legal Tradition is made of a few fundamental assumptions that are quite common through it despite differences in details. Among these there is certainly the idea of a strong professional control on the political process through courts and legal culture. While the former are part of the formal institutions and the choices regarded them can be reflected by a formal document such as the Constitution the latter are part of the informal institution building that is much more difficult to create63.
Even if this paper was focused on the process and not on the final product there is one data that I still like to share with the reader not so much to satisfy his curiosity as much as because it is puzzling and difficult to interpret.
The outcomes of these three processes share an impressive amount of fundamental characteristics. This of course might be interpreted in two ways. Either the connection between constitutional law and the political process is merely apparent and constitutions live a life that is rather independent from the political process that lead to them, or there are a few fundamental characteristics of African constitutions stemming from a genuine process of local adaptation of the western formal institutional setting that we call "constitution".
The common basic characteristics are: a) Strong President that is the chief of the executive. b) Rather light and weak legislative body. c) Emphasis on the independence and strengths of the judiciary also empowered to constitutional adjudication. d) Recognition of traditional law and of a moderate degree of legal pluralism. e) A significant number of independent agencies.
On a more formal grounds, one can witness a rather detailed language braking with the western tradition of short constitutions merely containing principles. These constitutions attempt to draft the main lines of the organization of the State.
While points a) and b) seem quite coherent with a strong position of the African chief, the other points are either clear attempts to break with the long tradition of weakness of the judiciary in developing countries (c and e) or realistic recognition of the fact that the State faces quite substantial competition from alternative decision making centers. In a sense points c) and e) are the real challenge of modern African constitutional law. The Courts, however, have neither the purse nor the sward64. Why should the armed man obey to them?
1 Alfred and Hanna Fromm Professor of International and Comparative Law, Hastings College of Law, University of California. Professore Ordinario di Diritto Civile, Università di Torino. This paper has been prepared for the International Conference on African Constitutions held at the University of Bologna, Italy, November 27 1998.
2 R.Sacco, Perché l' armato ubbidisce all' inerme?, Rivista di Diritto Civile 1997, I, 1
3 I owe this expression to Mario Raffaelli, one of the leading international negotiators of the recent success story of Mozambique. See Roberto Morozzo della Rocca, Mozambico. Dalla Guerra alla Pace (1994). Such an idea of law making as an exercise in communication with many spillovers such as for example building a sense of belonging to a group is devloped also by Habermas, (need cite)
4 I have argued that the separation between law and politics has not occurred in Africa and in other legal systems. I have consequently classified them as belonging to a family called rule of political law where politics is not governed by law but where it is true the other way around. See U.Mattei, Three Patterns of Law. Taxonomy and Change in the World's Legal Systems, 45 Am. J. Comp. Law, 5 (1997)
5 See E.Grande (Ed.) Transplants Innovation and Legal Tradition in the Horn of Africa (1995).
6 See M.Guadagni, Introduction, in Transplants Innovation and Legal Tradition, cit. supra note 5
7 Cfr. Lyda Favali, La Legittimazione e i suoi protagonisti, in L.Favali-E.Grande-M.Guadagni, (Eds), New Law for New States. Politica del Diritto in Eritrea, (1998) 159. R.Sacco, Il Diritto Africno, 43 (1995).
8 See Mattei, The New Ethiopian Constitution. Firss Thoughts on Ethnic Federaralism and the Reception of Western Institutions, in Grande (Ed.) cit. supra note 5 at 111.
9 See P. Lewis, Political Transition and the Dilemma of Civil Society in Africa, 46 J.Int Affairs 31 (1992).
10 The sense in which I use the notion of formal and informal institutional constraints is developed and discussed by D.North, Institution, Institutional Change and Economic Performance, (1991) 40 et sq.
11 See J. Van Doren, Positivism and the Rule of Law, Formal Systems and Concealed values. A Case Study of the Ethiopian Legal System, 3 J. Trans Law and Policy, 165 (1994).
12 See Guadagni, Legal Pluralism. The New Palgrave. A Dictionary of Economics and the Law (P.Newman Ed.) (1998); U.Mattei, Legal Pluralism, Legal Change and Economic Development, in New Law for New States, cit. supra note 7 23 ff.
13 See R. Sacco, Legal Formants. A Dynamic Approach to Comparative Law, 39 Am. J. Comp. Law, 1 (1991); Sacco-Monateri, Legal Formants, in The New Palgrave. A Dictionary of Economics and the Law, P.Newman Ed. 1998
14 See E. Grande, L' apporto dell' antropologia alla conoscenza del diritto, Rivista Critica Diritto Privato 1997, ; van Del Linden, Comparer les Droits (1995).
15 See, generally, B.N. Cardozo, The Nature of the Judicial Process (1921) Hart-Sacks, The Legal Process, (1994)
16 I make this point in U.Mattei, Socialist and Non Socialist Approaches to Land Law. Continuity and Change in Somalia and Other African States, 16 Rev. of Socialist Law, (1990) 17
17 See Sacco, cit. supra note 7 at 49 sq
18 See Mattei, Three patterns of law, cit. supra note 4; M. Guadagni, Legal Pluralism, cit. supra note 12; J. Van Der Linden, A Propos des Familles de Droit en Droit Civil Comparé, in Hommages Dekkers 363 (1982); Reyntjens, Note Sur L' Utilié d' Introduir un Sistème juridique Pluraliste dans la macro-comparaison des Droits, Re. Droit Int et Droit Comp 659 (1996).
19 See Fortes &Evans-Pritchard (eds) African Political Systems ( )
20 I owe this view of the present Ethiopia-Eritrea tension to Professor Gianpaolo Calchi Novati.
21 See F. Battera, Ethnicity and State: The Ethiopian Federal Constitution, in New Law for New States cit. supra. P. Brietzke, Ethiopia's Leap in the Dark. Private Federalism and Self Determination in the New Constitution, J. African Law, 1997--
22 See Rodolfo Sacco, Il Diritto Africano, (1996)
23 See A. Watson, Legal Transplants (1974) arguing that transplants always occur from the more to the less advanced countries.
24 For some updated background see South Africa. A Country Study (1997).
25 See Du Plessis-Lourens-Corder, Understanding South Africa's Transitional Bill of Rights (1994).
26 For some updated background M. Guadagni, Eritrean Law Between Past and Future, in New Law for New States, cit. supra nore 4
27 See L.Cliffe-B.Davidson (Eds.) The Long Struggle of Eritrea for Independence and Constructive Peace (1988).
28 See T. Tekle', Il Processo Costituente in Eritrea ed il Draft Constitution del 1996, in Quaderni Costituzionali 2 (1997) 331 sq.
29 For some historica background, I.M.Lewis, A Modern History of Somalia (1988).
30 In the complete absence of scholarly literature, data discussed in this section are based on direct observation.
31 See Presentation of Puntland State of Somalia's President to the House of Representatives, September 1998. p.3
32 two Italian law Professors, a former American politician now active as a law professor in Cairo and an Irish political scientist, partially funded by the Swiss and partially by the Italian government
33 See United Nations Somali Rehabilittion Programme, Report on the Community Constitutional Conference for the establishment of Puntland State organized by the communities of five regions in Northern Somalia, (prepared by Abdullahi A. Ahmed, Observer)
34 p. 2
35 See the discussion in Bruce Ackerman, We the People (1991).
36 See for a case study of how such institution building might happen in Africa, J.Ensminger, Making a Market. The Institutional Transformation of an African Society (1992).
37 See for a discussion of informal resistance to change Mattei, cit. supra note 12.
38 See R.Zimmermann & al., Southern Cross, Civil Law and Common Law in South Africa (1996); U. Mattei, Sud Africa, in Digesto Discipline Privatistiche IV (1999) forth.
39 See Araia Tseggai, The History of Eritrean Struggle, in The Long Struggle, cit. supra note 27
40 This point is made by Bernardo Bernardi, On the Founding Provisions of the Constitution of the Republic of South Africa 1996. Will Multilinguism Subserve or Substitute Multietnicity? Paper delivered at the International Bologna conference on African Constitutionalism, November 1998.
41 See The Long Struggle cit. supra note 27
42 SeeI.M. Lewis, Peoples of the Horn of Africa: Somali, Afar and Saho, London 1994 ; Mohamed Salih M.A. Perspectives on Pastoralists and African States, in Nomadic People, Uppsala, 1989.
43 For the situation before the civil war see Mattei, Socialist and non socialist approaches, cit. supra note 16
44 A complete description of the legal system that was in place before the civil war can be found in R.Sacco, Le Grandi Linee del Sistema Giuridico Somalo (1988)
45 For a recent in depth study see L. Favali, Le Risposte del Diritto alle esigenze dello sviluppo. Il caso Eritreo Phd Diddertation, Universita' di Trieste, 1998
46 This function is clear if one consider the important amount of official government publications describing the process targeted at such institutions. For a critical appraisal see P.G. Nelson, The World Bank and Non Governmental Organizations. The Limits of A-political Development , (1995)
47 See its descroption supra
48 See Du Plessis-Lourens-Corder cit. supra note 25
49 See Sacco, cit. supra note 1
50 See Watson, Legal Transplants, cit. supra note 23; R. Sacco, Legal Formants, cit. supra note 13
51 See Van Der Linden, Comparer les Droits (1995)
52 See Hooker, Legal Pluralism ( ); Grande (Ed.) Tranplants cit. supra note 5; E.O. Esiemokai, The Colonial Legal Heritage in Nigeria (1986).
53 See in general on the state of legal professionalism in Africa, M. Guadagni (Ed.) Legal Scholarship in Africa (1989)
54 See the special Symposium issue on the making of South African Constitution, St. Louis University Law Journal (Winter 1997)
55 See Tekle' cit. supra note 28
56 See on the previous state of affairs A.Botan-H.Deghei-A.Farah, Somalia in Legal Scholarship, cit. supra note 46
57 See Zimmermann, cit. supra note 38
58 These remarks stem from direct observation and from discussion with participants in the exchange program between the Law schools in Asmara and in Trento (Italy).
59 See Dugard, The Judicial Process, Positivism and Civil Liberty, South Af. L. J. 181 (1971).
60 See Nelson, P.G. Cit. supra
61 Kidder R.L., Toward an Integrated Theory of imposed law, in S.B. Burman-&.B.E. Harrel-Bond (Eds.), The Imposition of Law, New York (Academic Press) Date?
62 The war with Ethiopia has removed the process of constitution making from the stage. The final Constitution produced by the Commission has been "ratified" by an assembly of mysterious but certainly not elective composition and transferred to the President for a signature that so far, to the best of my knowledge, never happened. Apparently the commission made some final changes before "ratification" so that the constitution that is out for signature is different from the official final text published by the Commission itself. This final text is not available. There is no official date for the Constitution to enter in force. According to some statements by the chairman of the Constitutional Commission (which I know only by hearsay) the decision not to set a date was deliberately taken to allow political choices on the best moment to do so. One theory is that the Constitution will not be signed and enter in force until translations in the official languages are not provided. Interestingly the Constitution itself does not mention what are the official languages. I am indebted for these updates to Dr. Luca Castellani .
63 I develop some of these ideas in Mattei, Legal Pluralism, Legal Change and Economic Development, cit. supra
64 See A. Bickel, The Least Dangerous Branch. The Supreme Court at the Bar of Politics, 2 ed. (1986).