What should Africans expect from their constitutions?

• Author: Mbaku, John Mukum

1. 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. Thus, individuals and groups living within an African country may desire rules in order to (1) minimize destructive mobilization by groups seeking ways to increase their participation in economic and political markets and arrest further marginalization; (2) enhance the ability of individuals and groups to coexist peacefully; and, (3) provide the wherewithal for individuals and groups to maximize their values and interests without unfairly interfering with the ability of others to do the same. (15) Brennan and Buchanan state that although human nature can "limit the attainable states of social harmony ... sustainable social order can be achieved through the appropriate design, construction, and maintenance of rules that set limits on the way in which each person is allowed to order his conduct toward others." (16)

   For there to be effective management of diversity in Africa, each country must provide itself with a well-designed, locally-focused, and fully-functioning set of rules, as well as a set of counteracting agencies to enforce them. (17) Here, "locally-focused" implies that the rules chosen reflect the values, aspirations, traditions and customs, and worldview of each country's relevant stakeholder groups and, in addition, take into consideration the specificities of each country. (18) Such rules can only be obtained or secured by making certain that the process through which the rules are chosen is participatory, inclusive, bottom-up, and people-driven (i.e., democratic) and not top-down or elite-driven, as was the case with constitution-making in the pre- and post-independence period. (19) Full and effective participation of all of each country's relevant stakeholders in the rules selection process is critical because it helps achieve two important objectives--such a democratic approach: (1) ensures that the outcome is rules that reflect the values of the country's relevant stakeholders; and (2) significantly improves the chances that the majority of the people will accept the rules and see them as an appropriate tool that they can use to organize their private lives, protect themselves against government tyranny, and generally enhance their ability to live together peacefully. (20)

   Rules, especially those that reflect the values of the country's relevant population groups, serve many critical functions. In addition to providing mechanisms for the peaceful resolution of conflict and helping coordinate the actions of individuals, (21) rules can provide individuals participating in both political and economic markets with information and enhance their ability to anticipate the behavior of other market participants, given the set of constraints. (22) It is important that citizens understand the rules that they have chosen to regulate their sociopolitical interaction because such an understanding would enhance their ability to retain those rules that function properly and modify, amend, or repeal those that no longer serve their needs. The rules approach is the subject of constitutional design.

   Rules, which Adam Smith called "laws and institutions," (23) influence and, to a great extent, determine the outcomes that result from socio-political interaction. (24) Some laws and institutions produce outcomes that either enhance individual or group welfare, or harm it. (25) Constitutional political economy, an area of inquiry that deals with how societies determine the rules that regulate their socio-political interaction, can be used to determine the impact of existing rules on individual and community welfare. (26) Such a process can help a society determine which rules to retain, which to reform or amend, and which to discard. Additionally, the process can also help a society pick any additional rules needed to meet changing societal needs. (27)

   1. Why Rules?

      As argued by Thomas Hobbes, in the absence of rules, life would be "solitary, poore, nasty, brutish, and short." (28) Brennan and Buchanan argue that given that the "object of desire for one individual would be claimed by another," members of society would fight or engage in violent mobilization to protect their rights. (29)

      Our interest here is in the rules that govern or constrain socio-political interaction. Specifically, we are interested in the rules that constrain the "economic and political relationships among [individuals]" within a society. (30) In allowing or enhancing the ability of individuals within society to maximize their values, rules must do so within a context in which they do not constrain the ability of others to do the same. Thus, in helping individuals maximize their interests, rules also serve the "negative function of preventing disastrous harm." (31)

      Most Africans currently live in countries or societies governed by rules that they do not understand. (32) More important, perhaps, is the fact that the majority of these people do not understand how and why the rules that govern them were selected. (33) In these countries, only politically well-connected interest groups--primarily the ethno-regional groups that control the governments of these countries and which regularly subvert these laws and institutions to enrich themselves at the expense of the rest of society--participate in the selection of rules and, hence, are familiar with the rules. (34) Participation of all the relevant stakeholders of each country in the rules selection process must be maximized so that the outcome is a set of rules that reflects the people's values and enhances their ability to organize their private lives and defend against encroachment of their fundamental rights. Not only will such a process allow them to select rules that are relevant to their lives, but it will also enhance their ability to understand, appreciate, accept, respect, and comply with the rules so selected.

   2. What & a Constitution?

      According to economist Dennis C. Mueller, a constitution is "a form of social...