Constitutional engineering and the transition to democracy in post-Cold War Africa.

• Author: Mbaku, John Mukum

In the early 1990s, many of Africa's dictatorships (both military and civilian) collapsed, giving Africans the opportunity to establish more transparent, participatory, and accountable political and economic systems. In addition, the demise of apartheid in South Africa has given a significant boost to the continent's efforts to establish more participatory governance structures. Although the transition appears to be progressing well in a few countries (Mbaku and Kimenyi 1995), little progress has been made in most of the continent

In fact, in some countries (e.g., Nigeria, Algeria, and Cameroon), the transition has been hijacked by incumbents determined to continue monopolizing power. In addition, in countries where the transition seems to be progressing without major obstacles, policy reform has not progressed past the election stage. The elections were supposed to choose transitional governments that would engage the people in constitution making and provide a framework for the reconstruction of the neocolonial state. But many of these new governments have not taken the job of designing new rules seriously; they have become repressive and in many instances have continued to suffocate civil society while making it very difficult for opposition parties to function. In some countries, elections simply legitimized incumbents and allowed them to continue their brutal and exclusionary policies.

Cameroon is a good example. According to two of the nation's most respected independent newspapers, the incumbent president, Paul Biya, has manipulated elections to make certain that his party, the CPDM, continues to control the country's political system. Opposition groups claim that the electoral code for the 1992 legislative elections was written by the CPDM specifically to ensure its victory The code contained clauses ensuring that the election would not be free or fair but skewed in favor of CPDM candidates. (See, for example, the Cameroonian periodicals Cameroon Life, March 1992, 15-17; Le Messager, 28 October 1992; and The Herald, 26 October 1992. For a summary of transition events in Cameroon, see Finn 1994.)

At independence in the 1960s, the African people had an opportunity to choose new laws and institutions that would provide the enabling environment for national integration, peaceful coexistence, and development in the post-independence society Unfortunately, this opportunity was usurped by opportunistic Indigenous urban elites (the continent's new leaders) who proceeded to impose inappropriate laws and institutions. After more than thirty years of independence, it is now evident that the opportunity made possible by the end of colonialism was never effectively utilized to design laws and institutions that could have provided for peaceful coexistence of ethnic and social groups, enhanced the ability of entrepreneurs to create wealth, and maximized individual participation in development. Instead, the institutional arrangements that many of the African countries adopted at independence were weak, inefficient, and not particularly viable. They were easily subverted by political coalitions interested in maximizing their own welfare at the expense of the rest of society. As a result, public policy in the continent in the last thirty years has been characterized by political opportunism

Today, Africans have another opportunity to reconstruct the neocolonial state and provide themselves with more appropriate governance and economic institutions. Despite the euphoria over elections as an important part of the transition, a constitution is the critical factor in any properly effected transition to more effective governance structures. Without efficient and self-enforcing constitutions, African countries will continue to suffer from the opportunism so apparent in the first experiment at post-colonial nation building. For African countries, with their highly plural societies, effective constitution making represents the only true basis for building a common society.

Of course, as the eminent South African constitutionalist Denis V. Cowen (1961, 80-81) has remarked, a constitution, no matter how well designed, can neither solve all of society's problems nor guarantee social stability. People must be willing to live peacefully together in a community However, if people have decided in favor of peaceful coexistence, an effective constitution can provide significant benefits, including the opportunity for individuals to miximize their welfare, effective procedures for the peaceful resolution of conflict, and the framework for constructing institutions such as an efficient judiciary, a professional and neutral military, independent news media, and other institutions essential for maintaining the rule of law in the country (Cowen 1961, 83-84).

Why Has Africa Failed to Develop?

Several studies have examined the causes of Africa's failure to develop. Variables identified as obstacles to economic growth in Africa include bureaucratic and political corruption, excessive population growth, political violence, racial intolerance and destructive ethnic conflict, nonviable economics, unmanageable debt, poor natural-resource endowments, scarcity of both human and physical capital, protectionist trade policies, and several external constraints, including the economic policies of the industrial market economics (see, for example, Ergas 1986; Mbaku 1989; World Bank 1981; and Ayittey 1992 and 1997). Recently, however, it has become evident to many researchers that the incentive system has a significant effect on the behavior of market participants and consequently on their ability and willingness to engage in wealth-creating activities.

The laws and institutions of a society determine that society's incentive system. Thus, one can argue that the constraints to economic growth listed above for Africa are actually manifestations of poorly designed and inefficient institutional arrangements. Evidence indicates that economic progress depends on secure property rights, effective and reliable enforcement of contracts, and constitutional guarantees of economic freedoms (Shughart 1990). To provide the appropriate environment for development in post-Cold War Africa, efforts must be made to reconstruct the post-colonial states and provide each country with the types of laws and institutions that sustain this environment and minimize rent seeking and political opportunism.

At independence the African countries adopted constitutional rules that were neither efficient nor self-enforcing. Many African countries chose statism as their development model. Besides emphasizing state ownership and control, this development approach severely limited the functions of the market system (Mbaku 1994a). Many African states intervened frequently in private exchange, making it difficult for citizens to engage freely in exchange and contracting. Insecurity of property rights discouraged entrepreneurs from engaging in wealth-creating activities. Instead of managerial expertise, innovation, and competition, state subsidies, discretionary tax relief, and other forms of intervention became the main sources of profits for business owners. As a consequence, corruption, rent seeking, and other methods used to influence the political system came to dominate public policy. For example, in Ghana during the government of Kwame Nkrumah, entrepreneurs seeking an import license were usually expected to pay a bribe that ranged from 5 percent to 10 percent of the face value of the license to the bureaucrat in charge of issuing the permits (Leith 1974; LeVine 1975). Of course, Ghana is hardly unique. Corruption and other forms of post-constitutional opportunism became common in virtually all the countries in the continent (for a recent review of the literature, see Mbaku 1996). Thus, the lack of significant improvement in the quality of life in Africa during the post-independence period can be traced to the opportunism of the leadership, fostered by (1) weak, inefficient, and nonviable constitutional rules and (2) the absence of efficient institutions (e.g., an independent judiciary) to provide the enabling environment for economic growth.

Most of Africa's post-independence laws and institutions were not designed with the active participation of all relevant stakeholders, nor did they reflect local realities, needs, traditions, or aspirations. From the start, these social contracts lacked legitimacy, which comes from the "understanding and voluntary acceptance of the constitution by the people as the prescription for settling conflict within society" (Sundhaussen 1991, 108). Several of the African constitutions were based on European political models, did not significantly constrain the ability of the state to intervene in private exchange, prescribed majoritarian voting rules in the legislatures, and offered few protections for the rights of minority groups. Basically, these constitutions failed to guarantee economic freedoms and provide the appropriate environment and incentive system for entrepreneurs to engage effectively in wealth creation. As a result, after the new states were established, coalitions of interest groups came to totally dominate politics and resource allocation (Mbaku 1994a, 1994b).

Inappropriate Constitution Making: The Case of Cameroon

Like most other Africans, the people of Cameroon failed to utilize the opportunity offered by decolonization and independence to design and adopt appropriate institutional arrangements for their new post-independence society. In preparation for independence in 1960, a Consultative Committee was created by Law No. 59-56 of 31 October 1959 in the UN Trust Territory of (French) Cameroons. This group was given the task of writing the constitution for the soon-to-be-independent territory (Enonchong 1967, 80).

Ideally, membership in the group charged with selecting the country's constitutional rules would reflect the...