Constitutionalism in Africa: Creating Opportunities, Facing Challenges

LAW Joe Oloka-Onyango. Constitutionalism in Africa: Creating Opportunities, Facing Challenges. Kampala: Fountain Publishers, 2001. Distributed by African Books Collective Ltd., The Jam Factory, 27 Park End Street, Oxford OXl 1HU. xi + 345 pp. Index. $41.95. Paper.

The growing interest in African law is long overdue. Political scientists, for the most part, abandoned law in the 1970s when military coups rendered the study of law seemingly irrelevant. With a new spurt of constitution writing, we should expect more scholarly output on this topic in the future. This volume of eighteen papers, edited by Joe Oloka-Onyango, the former dean of the Faculty of Law at Makerere University, has its origins in a 1998 conference held in Uganda.

Readers will benefit most from the chapters on gender and contemporary constitution writing. Unfortunately, the earlier sections of the book, "New Challenges, New Opportunities" and "Ethnicity, Identity and the Role of Civil Society," suffer from a degree of vagueness that limits their usefulness. The central weakness is an apparent unwillingness to define constitutionalism. This is not a call for a common definition to be carried throughout the volume. Rather, in view of the diverse backgrounds of the authors, attempting to wrestle with this murky concept could have served as a focal point for discussing the meanings of constitutionalism in the African context, how those meanings relate to the specificities of African politics and society, and why constitutionalism might take a different path in Africa from the one it has taken elsewhere.

As it is, the links between particular qualities of African politics, such as ethnicity, and constitutionalism, are not always clear. There is also a ten- .;' dency to equate paper constitutions with constitutionalism. I was particularly intrigued by the inclusion of Rwanda in two of the chapters on ethnicity. Does ethnicity make constitutionalism in places like postgenocidal Rwanda unlikely, or is constitutionalism an instrument for preventing ethnic conflict? It is not clear whether it even makes sense to talk about constitutionalism in Rwanda. Kamatali does, however, talk briefly about the consequences of indirect rule on Rwandans' attitudes toward the law. He suggests that the ability of traditional authorities to resist the legal orders of colonial officers left the impression that "the law was not obligatory and enforceable by itself. Rather, it depended on the attitude of the authority who... enforced it" (112-13). I am hoping that he has written more expansively on this elsewhere because what people think about the law matters immensely.

The papers on gender, in contrast, are very successful in integrating cases and concepts, permitting the authors to present detailed analyses without overwhelming readers who might be unfamiliar with the issues. Indeed, I plan to use some of these chapters in my undergraduate class on gender and law. Ola Abou Zeid offers an interesting exposition on how constitution writers in Islamic countries have attempted to balance political pressures to incorporate the Universal Declaration of Human Rights into domestic constitutions without surrendering on the issue of women's equality. Kibwana and Tamale, writing oil women's movements in Kenya and affirmative action in Uganda, respectively, explain why neither the promotion of women's organizations nor affirmative action have brought women closer to equality. Kibwana, more strongly than Tamale, suggests that a more radical feminism is necessary. Kenyan women have suffered from what Kibwana calls "apoliticism" (195), an assumption that women can achieve equality without participating in politics. There is, in other words, no substitute for political struggle; Kenyan women, if they are to succeed, will have to take a position on contentious issues and be willing to pay the political price to defend it.

The chapters on constitution-making also offer a breadth of views. They raise important questions about the locus and mode of writing new constitutions. Will constitutions be more enduring if written exclusively by political elites, or does consultation with "the people" make a difference? Selassie explains the framework of constitution writing in Eritrea, a more inclusive case, but admits that it is too early to tell whether the written constitution will produce constitutionalism. Diaw queries whether national conferences in Francophone Africa can produce a viable constitution in which the norms of political legitimacy triumph over the ever present struggles for power. In one of the most detailed chapters, Chief Justice Odoki, who was chairman of the Constitutional Commission, revisits the lengthy drafting process in Uganda. Uganda is a fascinating case because of the multiple methods that were employed for incorporating ordinary Ugandans into the process. While Odoki stresses the need for constitutions to reflect a national consensus, the drafting process was also a grand lesson in civics. African constitutionalism may have its strongest roots when a broad swath of the population is knowledgeable about the contents of the constitution.