Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa*

Abstract

The so-called “third wave” of democratization that has swept through the African continent since the 1990s unleashed in its wake some sort of epidemic of constitution-making. Today, the new or substantially revised constitutions that have now been introduced in most African countries contain provisions that purport to recognize and protect most of the fundamental human rights that are associated with constitutionalism and Western liberal democracy, with one of the most significant developments being the recognition of political pluralism and the legalization of previously banned political parties. However, the high hopes that were raised are fading because the increasing number of dominant parties that have replaced the pre-1990 one party regimes have either progressively adopted legislation, policies and measures designed to entrench themselves in power or, simply maintained their foothold on power through rigged elections. This paper examines the possible role that constitutionalizing political parties can play in checking majoritarian abuses in African polities by looking at the diverse constitutional approaches and practices in selected Southern Africa countries to see what lessons can be learned. It argues that the problems of the last decade have been largely due to the fact that the constitutional foundation on which political rights are exercised, especially the basis for the establishment and operation of political parties and their participation in the electoral process, is weak and flawed, thus compromising the effectiveness of the newly-recognized rights to associate, vote and participate in the governance of the state. It is therefore suggested that constitutionalizing the status of political parties within the framework of certain basic and legally enforceable principles that will ensure a fair and just outcome to competitive political processes will enable them to play a critical role in enhancing the prospects for constitutionalism, constitutional democracy and the rule of law in Africa's faltering constitutional rights revolution.