African Constitutionalism and the Role of Islam

Constitutionalism is becoming the prevalent form of governance in Africa. But how does constitutionalism deal with the lingering effects of colonialism? And how does constitutional law deal with Islamic principles in the region? African Constitutionalism and the Role of Islam seeks to answer these questions.

African Constitutionalism and the Role of Islam

Abdullahi Ahmed An-Na'im

2006 | 216 pages | Cloth $65.00
Law | Political Science
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Table of Contents

Preface

Chapter 1: Toward an Inclusive Theory of Constitutionalism
Chapter 2: Elements of African Constitutionalism
Chapter 3: Evaluating Experiences in Incremental Success
Chapter 4: The Contingent Role of Islam
Chapter 5: Islam and Constitutionalism in Sudan, Nigeria, and Senegal
Chapter 6: Conclusions: Sustainable Constitutionalism Through Practice

Reference List


Excerpt [uncorrected, not for citation]

Preface

I began working on this book in 1995 under a grant from the American Council of Learned Societies (ACLS), but soon had to set it aside for when I became the coordinator of a major study of the legal protection under the constitutions of sixteen African countries. That project was organized by the International Center for the Legal Protection of Human Rights (Interights) and Inter-Africa Network for Human Rights and Development (Afronet). All those studies were done by African researchers working on their own respective countries according to the same terms of reference and uniform format. Ten of those country studies were in due course published in Human Rights under African Constitutions: Realizing the Promise for Ourselves (University of Pennsylvania Press, 2003). I am pleased to acknowledge the initial grant of the ACLS, and the professional support of Interights and Afronet, but my special appreciation is for the rigorous scholarship and helpful insights of the researchers in that project. That project not only confirmed and helped define the concept of African constitutionalism that I am trying to further develop in this book but also enabled me to test and revise some of my assumptions and initial thinking on the subject. This background is therefore important to note from the beginning because of it relates to the genesis and objectives of this book.

I was already working on the cultural legitimacy of human rights and related ideas, with particular reference to Islamic and African societies, when I participated in a global comparative study of constitutionalism organized by the ACLS in 1988-89. Working on the Africa regional "institute" for that project contributed to shaping my understanding of issues of constitutionalism in a pan-African perspective, reaffirmed my commitment to this principle and my belief in the possibilities of its incremental success throughout the continent. The idea of writing a book about constitutionalism in Africa emerged at the end of that ACLS project.

However, it was my subsequent participation in the Interights/Afronet project that confirmed and helped me develop the proactive approach I am attempting to present in this book to emphasize the incremental success of constitutionalism in Africa. Those studies also provided me with a wealth of detailed information on the practical working of constitutional principles in a good cross-section of African countries. In particular, that experience affirmed my belief in the urgent need for socially engaged scholarship without sacrificing strong scholarship. The implementation of that project made it clear to me that it is unacceptable for an African scholar to devote her or his whole attention detached academic analysis without attempting to respond to the urgent needs and untold suffering of Africans throughout the continent. On the other hand, activist involvement with such issues raises risk of bias and lack of scholarly rigor. While appreciating and attempting to guard against this risk, I see no alternative to positively responding to the need for social engagement of the issues facing African societies.

From this perspective, I am seeking to promote constitutional governance in African societies, by developing ways of enhancing and consolidating the basis of the incremental success of constitutionalism, with due consideration of the difficulties and setbacks experienced by African societies in this regard. Moreover, I am suggesting that such difficulties and setbacks are to be expected as an integral part of the process of adaptation and indigenization of an essentially alien concept of the "nation state" and its role in large scale political and social organization. As discussed later in this book, however, the assumption of 'nation' in the nation state concept can be very problematic in the postcolonial African context.

But my belief in the desirability and possibility of sustainable constitutionalism is based on a certain understanding of the concept, and a proactive approach to the conditions and processes of realizing it in the African context. This understanding and proactive approach should be seen as part of a universal project of constitutionalism that is to be conceived and pursued through global collaborations, but with due regard to the historical and current realities of international economic and political power relations.

While a positive or negative outcome of these processes should neither be expected to automatically materialize, nor assumed to be inevitable or permanent. Since adaptation and indigenization necessarily indicate that there are difficulties to be overcome, the success of these processes can only be incremental, through practical experience over time. This desired objective cannot be realized without critical analysis of experiences so far, and pragmatic development and implementation of the necessary strategies in the future. African scholars have an important role to play in this regard, in addition to their personal engagement in political struggles within their respective countries. But scholars cannot play this role without meticulous verification of the factual basis of rigorous analysis. Otherwise, they would be doing a serious disservice to their societies if they compromise on the scholarly quality of their work. In other words, there is no conflict between rigorous scholarship and advocacy for social and political change because maintaining the highest standards of scholarly quality is the prerequisite condition for the role of socially engaged scholars.

The general progression of the analysis I am presenting in this book can be summarized as follows. The first chapter is devoted to a preliminary discussion of the problem of defining and implementing constitutionalism in general, and of the circumstances and assumptions associated with its introduction in the late colonial and early post-colonial Africa. But for the concept to survive and thrive over time it has to be adapted and sustained through an indigenous rationale and dynamics of what might be called the dialectic of constitutionalism in Africa and African constitutionalism. This dialectic refers to the processes of progression from constitutionalism as an abstract concept or set of principles to the adaptation and indigenization of the concept or principles to local conditions and context. As I will emphasize later in this book, however, 'progression' includes 'regression.'

Conceptual and practical issues associated with this process, as it is unfolding and evolving in the actual experiences of African countries, are discussed in the second chapter. In other words, I take the practical experience of African countries as being the primary source as well as practical method of adaptation and indigenization, but would emphasize the need for conceptual clarity and political leadership in drawing lessons and formulating and implementing strategies for future action. To this end, I will examine in the third chapter the recent experience of some African countries along what I call a continuum of incremental success, including a variety and degrees of failure and setback. Chapters 4 and 5 are devoted to closer analysis of what I call the contingent role of Islam, as an application and illustration of the general thesis of the book as a whole. In conclusion, the last chapter offers some comparative reflections and assessment of the prospects of sustainable constitutionalism.

To avoid the risks of distortion or oversimplification, I will not attempt to summarize the content of these chapters. Instead, I wish to note some of the tensions that seem to be inherent to the sort of argument I am trying to make. There is first an underlying tension in the study of and policy reflection on such concepts as "constitutionalism" or "democracy," namely, how to apply principles which have received their present global articulation and development from the experiences of Western societies to African societies. In my view, such concepts can be accepted as viable philosophical, political, and analytic categories for evaluating the state of politics, society, culture, and so forth, in African societies, provided they are open to contestation and reconceptualization from the perspective of those societies. This can be done by drawing on indigenous and precolonial African traditions of political, social, and cultural thought and practice, as well as political and intellectual traditions of anticolonial dissent and protest, in addition to concepts from European or Western social thought and disciplinary traditions, as relativized and reconceptualized in local context.

The deeply contextual approach to the incremental success of constitutionalism in present African countries that I am proposing in this book entails a tension between the requirement of assessing each experience on its own terms, and the need to have some verifiable standards for assessing the relative degree of success that is supposed to have been realized in any country at a given point in time. The way to mediate this tension is to identify elements of an emerging global consensus on some critical features of constitutionalism governance, and then apply them to assess the "performance" of each country in its own context. Critical assessment of the constitutional record of any African country is necessary and prerequisite for developing and implementing strategies for the promotion and consolidation of these principles in those countries. The question is how to do this in a deeply contextual manner, instead of applying a preconceived, linear approach to the assessment of success or failure, without due regard to the particular history and specific context of each society.

Another tension this book seeks to mediate relates to the paradoxical nature of the African postcolonial state, which is supposed to be sovereign from a legal point of view, though it is in fact incapable of exercising the full powers and responsibilities of sovereignty in practice. The question here is how to work with this reality while attempting to change it in the "real world" of power politics, collapsing economies and corruption at home, and persistent Western neocolonial hegemony abroad. Yet, the only way forward is through the practice of constitutionalism in order to empower civil society actors hold governments legally and politically accountable to their own populations. The more effective this process is at home, the sooner will neocolonial international relations diminish over time. The main question for this book is how to make that happen in a sustainable manner throughout the continent. While I attempt to do that in broad theoretical terms in the first three chapters, it is the closer examination of the case of Islamic societies that I hope will clarify and illustrate the argument I am making for wider application.

My concern with the role of Islam in Islamic African societies raises another tension, namely, the conflict between traditional understandings of Shari'a (the normative system of Islam) and modern principles of constitutionalism. The notion of the contingency of the role of Islam refers to a theoretical and political "space" within which the mediation of this tension can occur through a re-interpretation of Islamic to reformulate relevant principles of Shari'ah. The relationship between Islam and constitutionalism in Africa should be understood within the framework of the dialectic of Islam in Africa and African Islam, on the one hand, and the broader context of culture, religion and politics, on the other. Muslims are not only Muslims, nor do they behave all of the time as such, though Islam fundamental to their cultural identity, social institutions and daily behavior. In particular, perhaps traditional forms of Africanized Islam might provide better prospects for reconciliation between the Islamic cultural identity of African Muslims, on the one hand, and the requirements of their daily lives in multi-cultural, multi-religious states, on the other. The main idea here is that Africanized Islam, with its strong Sufi (Mystic) roots and practices, was inclusive and tolerant of diversity within Muslim communities and in their relationships with non-Muslims communities. But the regional and global nature of the cross-cultural and political interaction adds to the contingency of the role of Islam in relation to constitutionalism by bringing into Islamic African societies more 'fundamentalist' interpretations Shari'a that are more exclusive and intolerant of diversity. This approach is hopefully clarified and illustrated by the comparative analysis of the contingent role of Islam in Sudan, Nigeria and Senegal in chapters 4 and 5.

Finally, I am also concerned about the current global context of a very destructive trend in the foreign policy of the United States in the aftermath of the 9/11 terrorist attacks. This primarily unilateral and aggressively militaristic response to the real and serious threat of terrorism, which has resulted in the illegal and counter-productive invasion and occupation of Iraq in March 2003.004, may have had two negative consequences for the objectives of this book. This global environment poses a most serious challenges some of the most fundamental principles of international legality, has seriously undermined the credibility of notions of universal standards of human rights and constitutionalism everywhere, especially among Islamic societies. This negative implication is compounded by the manner in which the United States is seeking to influence the domestic policies of African and Islamic governments that are vulnerable to American economic, political and security pressure to adopt oppressive legislation and policies. Moreover, the combined effect of these negative developments have created or enhance a preexisting "siege mentality," especially among Islamic societies, which makes them more conservative and defensive about their religious and cultural identity. This would seem to indicate that these societies are now less likely to engage in internal transformation in favor of constitutional governance and the protection of human rights than they used to be a few years ago. The challenge is therefore how to maintain a positive and forward looking perspective on constitutionalism for Islamic societies in general, and those among them who are also African for the purposes of this book.

To conclude this brief Preface, I realize many tensions within my thesis and analysis are not resolved, indeed may not be possible to resolve through any theoretical discussion, however developed or elaborate it may be. I am therefore painfully aware of the limitations of the scope of this book, and of the approach I am proposing to the promotion and consolidation of constitutionalism in African countries. Yet, I do believe that this thesis and analysis can make a useful contribution to the field on which others can build.