Real Constitutional Change in Sub-Saharan Africa after the Third Wave of Democratization: A Comparative Historical Inquiry

This thesis explains the transformation and endurance of constitutional orders in Sub-Saharan Africa after the democratic diffusion dubbed the “Third Wave of Democratisation”. The effect of this diffusion was felt in Africa starting in the late 1980s and saw the collapse of autocratic and military regimes as well as restoration of multy-party politics. In the early 1990s, several countries in Sub-Saharan Africa riding on the impetus supplied by the Third Wave embarked on constitution-making or amendment processes with an aim to undo authoritarian constitutionalism. Unfortunately, this venture did not lead to transformation of legal and political orders from authoritarian to democratic constitutionalism. With the exception of a few countries, such as Cape Verde, South Africa and Benin, most countries still evince de facto authoritarianism. In order to understand this state of affairs, this study resorted to considering these polities’ real rather than formal constitutions and their change as it seems apparent that the constitutions minted after or at the behest of the Third Wave fell prey to sham constitutionalism. Through a comparative historical probe involving Cameroon, Kenya and Benin as case studies, this study has established that formal constitutional change had more modest potential of transforming political systems than thought. Instead it has revealed that disestablishment of authoritarian rule in Sub-Saharan African was predicated on the existence or non-existence of certain actor-based conditions which were in turn shaped by context-specific underlying structural factors. The insufficient, though necessary conditions for real constitutional change are (a) change to incumbent power holders, (b) existence of effective democracy-demanding groups and (c) candid promotion of democracy by international actors. Whereas, thus, change to formal powers was perceived to be a panacea to constitutional maladies that afflicted Sub-Saharan African countries prior to 1989, this study has established that at best, changes that secure a normatively attractive formal constitution can at optimal serve the purpose of guarding against democratic regression. This seems, also, to be the effective reach of judicial review to African constitutional orders. The study recommends that incentives – such as amnesty – should be afforded to incumbent power holders to see themselves safe when out of power and post-election alliances should be proscribed to address co-optation of opposition factions that dilute the strength of pro-democracy forces. Constitutional orders stand to benefit from formal constitutional change directed at removing claw-back rights clauses and empowering judicial review through strengthening of institutional autonomy and security of review bodies. In this way, an environment conducive for democratisation and repellent to regression is likely to be secured.