Comparative Constitutionalism and Good Governance in the Commonwealth: an Eastern and Southern African perspective

Hatchard, John; Ndulo, Muna and Slinn, Peter (2004). Comparative Constitutionalism and Good Governance in the Commonwealth: an Eastern and Southern African perspective. Cambridge, UK: Cambridge University Press.



This book makes an important contribution to the burgeoning field of comparative constitutionalism by bringing discussions of democracy in Commonwealth Africa into focus. It does so in a variety of ways. For example, the authors argue that while customary or indigenous laws should be given constitutional recognition as a matter of political necessity, they ought to be subjected to constitutional scrutiny to ensure that the goals of equality are not compromised. Thus, in its analysis of the place of customary law, the book demonstrates that neither jettisoning the African past nor completely replicating modern forms of governance would adequately address the challenges of African statehood. The book also tackles other difficulties encountered in the institutionalization of democracy in the countries examined. The authors argue that, in light of the significance attached to consensus in community decision making in many African societies, the adoption of proportional representation systems augurs well as an electoral model. In so arguing, they make a case, as well, for abandoning the fractionalizing winner-take-all Westminster system adopted in many Commonwealth African constitutions.

The authors examine the mutually reinforcing nature of human rights, democracy, and development and the circumstances in which these ideas could contribute to the transformation of African states. In their quest for comprehensive democratic reform in Commonwealth Africa, which the authors consider to be a prerequisite to the establishment of sound structures for economic and social development, they capture the multifaceted and complex nature of the crisis in African governance. They manage to do so, not by isolating themselves in either the theory or practice of governance but, rather, by conveying their understanding of the two as deeply connected. Thus, one particularly admirable quality of Comparative Constitutionalism and Good Governance in the Commonwealth is its concern with not only the legal but also the institutional, organizational, financial, political, and cultural variables the authors consider necessary for the realization of comprehensive democratic reforms. For these reasons, this book offers tremendous insights for policy makers and students of African law and politics.

One of the chief virtues of this book is that its authors generally do not subscribe to a binary opposition between law and tradition. Rather than making sweeping claims that constitutionalism in Africa is persistently subverted by traditional structures of governance and a culture of authoritarianism, the authors provide careful and contextually rich analysis, recharacterizing the relationship between law and tradition as a dialectical one.

One comes away with the sense that the fate of constitutionalism in Africa will be both a function of legal rationality in the Weberian sense and traditional or patrimonial modes of authority. This view makes no clear separation between law and the traditional modes of authority that inform its workings. In fact, Comparative Constitutionalism and Good Governance in the Commonwealth argues that the presumed tension between law and tradition is not unique to Africa or the twentieth century but is a problem identified in the state-building enterprises of medieval Europe and in many other forms of states outside Africa today. In this sense, this book could very well delineate a new understanding of the constitutional systems of eastern and southern Africa.

Another significant quality of this book is its commitment to exploring the efforts of African people in shaping and tailoring constitutions to promote good governance. In so doing, it departs from the preoccupation in the existing literature with exploring the efficacy of attaching conditions to Western assistance to prop up democratic change, or with searching for clues to the failure of constitutionalism in the region. This is most striking in the initial chapters, where the authors provide insights on how best to proceed with good-governance reforms through constitutional conventions and other mechanisms. The authors focus on and emphasize the importance of indigenous initiatives and commitments to democratic change such as the Harare Commonwealth Declaration of 1991, even while acknowledging that external actors have a role in monitoring and supporting the democratization process. Ultimately, they argue that viable constitutions in the region must be crafted and designed by the peoples of the region to reflect the internalization of the principles of constitutionalism in combination with their history and culture. They are able to make this argument without flogging the dead horses of colonialism or postcolonial Western interventionism and, at the same time, without underestimating the role of external influences. In short, the book insightfully and straightforwardly captures the complexity of the challenges of democratization in the region.

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