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A Constitutional Political Economy Approach

John M. Mbaku

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John M. Mbaku

African countries presently face many problems, the most important of which are poverty and high levels of material deprivation. An effective effort to fight mass poverty must begin with the creation of wealth. Unfortunately, despite the recent upswing in economic activities, there cannot be sustained economic growth and development without peaceful coexistence. Pervasive sectarian violence, a lot of it attributed to violent and destructive mobilization by various subcultures that believe they are being marginalized by public policies, remains a major problem for virtually all countries on the continent. Providing each African country with institutional arrangements that provide effective structures for peaceful coexistence, including especially the protection of the rights of minority groups, is the most important prerequisite for wealth creation and economic development.

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The historical foundations of the problem

A Constitutional Political Economy Approach

John M. Mbaku

Europeans came to Africa to maximize their own interests and not to help Africans govern themselves and deal with problems of peaceful coexistence and development. Colonialism was not a mutually-beneficial arrangement between African groups and the Europeans. Instead, the scramble for Africa represented the forced imposition of the will of the European colonizers on African societies. As a consequence, it was inevitable that the institutions that the Europeans brought along with them were instruments of violence, all of which were used to conquer, subjugate, infantilize, and exploit Africans.

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The critical domains in the post-independence period

A Constitutional Political Economy Approach

John M. Mbaku

Independence promised Africans the opportunity to fully reconstruct the institutional structures inherited from the colonialists and provide themselves with institutional arrangements undergirded by the rule of law. Unfortunately, postindependence African political elites failed to engage their fellow citizens in inclusive and participatory approaches to constitution making and, as a consequence, they ended up with constitutional orders that were incapable of serving as foundations for effective governing systems. Specifically, these postindependence laws and institutions were not capable of protecting the rights of each country’s citizens, including especially those of minority groups.

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Confronting poverty and underdevelopment in Africa today

A Constitutional Political Economy Approach

John M. Mbaku

Research shows that sectarian violence, most of which is related to destructive mobilization by nationalities and subcultures that consider themselves marginalized by public policies, discourages both domestic and foreign investment and significantly damages prospects for economic growth and development. It is important, then, for each African country to provide itself with institutional arrangements that enhance the effective management of diversity and which also offer all groups within the country mechanisms for peaceful resolution of conflict.

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Why process is important in constitutional design

A Constitutional Political Economy Approach

John M. Mbaku

During the last several decades, many African countries have tried to engage in state reconstruction and provide themselves with more effective governing systems. Specifically, the effort has been directed towards securing the types of laws and institutions that can help them effectively manage diversity, enhance peaceful coexistence, protect the rights of citizens, including those of minorities, and provide mechanisms for the creation of the wealth that they need to deal fully with poverty and material deprivation. Unfortunately, most of these countries have failed to understand why the process through which institutional reforms are undertaken—whether the process is top-down and elite-driven or bottom-up, participatory, and inclusive—is important. A participatory process ensures that the outcome are laws and institutions that reflect the ideals, values, and aspirations of each country’s relevant stakeholders.

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John M. Mbaku

Before a country embarks on constitutional design, a political foundation must be established. Such a foundation includes developing the constitutional principles on which the constitution would be based and which would constrain the drafters; determining the nature of citizen participation; how the committee tasked with drafting the constitution (i.e., the constituent assembly) will be chosen and constrained; and how the constitution will be ratified. It is important that constitution making is placed in a context that emphasizes rationality and impartiality, while minimizing all forms of opportunism and balancing the interests of the present with those of future generations. Finally, constitutional design must center around protecting the fundamental rights of all citizens, including those of minorities.

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John M. Mbaku

While a constitution has many functions, three of the most important are to (1) define and protect the rights of citizens; (2) establish the governing process or machinery of government; and (3) determine how amendments to the constitution would be undertaken. In drafting the constitution, it is important to consider three types of legitimacy—upstream, process, and downstream legitimacy. The final constitutional draft will enjoy upstream legitimacy if the constituent assembly is chosen through free, fair and credible nation-wide elections; process legitimacy if the constituent assembly makes its decisions democratically; and downstream legitimacy if the constitution is ratified through a process that enhances and embodies the popular will (e.g., by nation-wide referendum).

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John M. Mbaku

Respect for and voluntary acceptance of the law by a majority of citizens is critical to the maintenance of law and order in any country. In fact, it is very difficult to maintain a constitutional order if the majority of citizens do not voluntarily accept and respect the law. Citizens are not likely to voluntarily accept and respect the law if they do not view the constitution and hence, the governmental regime, as legitimate. Legitimacy is enhanced if (1) the laws are those that the people can and are willing to obey; (2) the people see the law as a mechanism for organizing their private lives; and (3) citizens, especially members of minority ethnic and religious groups, see the law as protecting their beliefs and practices, as well as their customs and traditions, from infringement by state- and non-state actors.

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John M. Mbaku

In seeking ways to protect the rights of minorities, African countries can benefit from an understanding of U.S. constitutional practice. First, African countries can benefit from understanding how the American Republic has made constitutional democracy work. Second, governance in the African countries can be informed by the ideas and principles that are central to the successful practice of constitutionalism and constitutional government in the United States, which include constitutional federalism, separation of powers, and judicial review.