Democracy, Elections, Governance and the quest for a transformative people’s constitution (Part I)

Hon Justice OBK Dingake | Monday May 29, 2023 06:00

I understand that the Democracy Works Foundation (DWF) together with its partners seek, through the Charter Project Africa, to promote the African Charter on Democracy and Elections and Governance (ACDEG). They aim to use digital democracy technologies to strengthen participatory democracy. It would also appear that civic education lies at the heart of their work.

The ACDEG is inspired by the objectives and principles enshrined in the Constitutive Act of the African Union, particularly Articles 3 and 4, which emphasize the significance of good governance, popular participation, the rule of law and human rights. It seeks among other things to entrench a political culture of constitutional change of government based on the holding of periodic free and fair elections.

Article 3 of the Charter requires State Parties to implement the Charter in accordance with the following principles: (a) respect for human rights and democratic principles, (b) access to and exercise of state power in accordance with the constitution of the State Party and the principle of the rule of law; (c) promotion of a system government that is representative; holding of regular, transparent, free and fair elections; (d) separation of powers; (e) promotion of gender equality in public and private institutions; (f) effective participation of citizens in democratic and development process and in governance of public affairs; (g) transparency and fairness in the management of public affairs, (h) rejection of corruption, (j) strengthening political pluralism, recognizing the role , rights, responsibilities of legally constituted political parties.

It is plain from the above that The African Charter on Democracy, Elections and Governance is an important blueprint intended to put constitutional democracy at the centre of the African governance system. It is a norm setting document which all African states must subscribe to through, not only ratification but execution. It is plain from reading the Charter that it was informed by many important regional, sub regional and international legal instruments including the Universal Declaration of Human Rights- which asserts among other things, that the authority of any government shall be derived from the will of the people.

The Charter (ACDEG) recognises the above principles and the nexus between democracy, elections and good governance. Elections are fundamental to the legitimacy of any government. Such elections must truly reflect the will of the people, they must be free and fair. In a constitutional democracy envisaged by the Charter, the judiciary has a special role to adjudicate over electoral disputes. It is therefore important that the independence of the judiciary should not be open to credible doubt.

As we consider how we can use ACDEG to advance democracy, we must spare a thought on the state of democracy in Africa. I will give a very brief synopsis to provide the context.

The state of democracy in Africa is far from satisfying – there is a protracted democratic recession marked by erosion of civil liberties, shrinkage of civic space, the undermining of the will of the people through electoral manipulation, the uneven playing ground as illustrated by the lack of funding of political parties in some countries, unequal access to public media during elections and the death of independent institutions.

The above instances of democratic recession have been accompanied by a concentration of power in the executive and the corresponding emasculation of parliament. The reality in many African states is that parliaments’, as the repository of the will of the people are often weak compared to the executive, their independence is doubtful, and they are often under resourced to be an effective watchdog of the executive and can hardly pass effective laws for the “good order and peace of the country”. As a result of this power imbalance, parliament is often dominated by the executive and cannot hold the executive accountable – mainly on account of the dominant party system. In some cases, the last line of defence in a democracy being the judiciary has not been spared interference in one form or the other.

In the African region a view is increasingly gaining traction that while Parliaments are central to ensuring separation of powers and checks and balances, they do not always fulfil this role effectively due to various reasons, that include the dominance of the party system and a lack of resources.

In many countries in Africa, separation of powers is loose, as members of the executive tend to be drawn from members of Parliament. This has the potential to compromise the necessary separation of powers and the checks and balances that can hold other organs of the state accountable. The dual membership of ministers to the executive and legislative branches of government as well as their proportionately large number, have in some cases resulted in decreased Parliamentary oversight capacity.

There are many recorded instances of harassment of the opposition, free media, disdain for civil society, state sponsored social media terrorism against political opponents. The latter has reached alarming proportions in many countries. Corruption is rampant and pervasive. Private money that sponsors political party campaigns has proven to be a danger to democracy as the monied are able to buy governments in waiting ahead of elections – a phenomenon that often results in state capture by private interests with the result that governments become accountable to those who sponsored them to win power than the people. Private funding of political parties needs to be regulated.

All the above instances have led to massive civil society disengagement from the electoral process and the death of participatory democracy. Democracy should never be understood as simply voting every election cycle. It must involve continuous participation of the people in the manner in which they are governed.

International law guarantees the right of the people to, “take part in the conduct of the public affairs directly or through freely chosen representatives”. International Law also requires countries to hold, “genuine” and periodic elections. How many amongst us can attest to the “genuineness” of the elections we hold?

A democratic recession in our continent has been evident for decades and there are no signs that the situation is improving.

Democratic recessions suggest a reversal of democratic gains that may have occurred in the past decades, it is characterised by weakening of democratic institutions, the emergence of a big man syndrome. It entails the erosion of political accountability, conducting elections fraught with fundamental irregularities, rampant corruption, violation of human rights.

Research suggests that there has been a gradual decline of democracy in Africa with more than 15 active violent conflicts across the continent in 2021. The continent has moved from three democracies and 42 authoritarian regimes in 1985 to only 18 democracies, 19 authoritarian regimes and 13 hybrid regimes in 2015. The occasional occurrence of unconstitutional changes of government and military aided transitions account for much of Africa’s democratic recession.

One of the tools that can be used to halt and even reverse the democratic recession is constitutional building or constitutional review.

In the recent decades many countries have sought to review their constitutions, many of which were colonial inheritances. Countries such as South Africa, Namibia, Malawi, Kenya, Zimbabwe and Botswana- all with varying degrees of success. In other countries such as South Africa, Namibia and Kenya, people’s participation was put at the centre of the process. In other countries the constitutional review processes was infected with illegitimacy as politicians imposed their wishes on the citizenry resulting in constitutions that can hardly be called people’s constitutions. Best practice teaches that the best constitutional review process must genuinely be people-driven and involve all key stakeholders. A constitution that the people cannot proudly call their own is not worth the paper it is written on.

The above challenges, notwithstanding the picture is not entirely bleak. We, the people, can use tools at our disposal such as ACDEG, to demand that our government not only ratify, but execute the letter and spirit of the Act. Africa has an epidemic of bad laws that would fail a democratic index audit. Our governments record in ratifying regional, sub regional instruments is very good, but their record of domestication and implementation of that which they agreed is poor.

I conclude by commending Democracy Works Foundation (DWF) and its partners to remain resolute in promoting the values and dictates of ACDEG and urge them to be rooted among communities and roll out civic education programmes, using technologies and face to face community meetings.

The existence of the African Continent’s regional instruments has provided an opportunity for supranational accountability - and although these instruments have been allowed to gather dust and have sometimes served as vehicles for norm diffusion, the historical, political and socio-economic context and peculiarities of countries have led to a mixed bag in terms of democratic consolidation results.

*Hon Justice Professor Dingake is Judge of the National and Supreme Courts of Papua New Guinea and Residual Special Court of Sierra Leone. He is also President, Africa Regional Judges Forum on HIV and Human Rights. The preceding are his remarks delivered virtually for an event held in Botswana on May 19