Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

Abstract

In the aftermath of independence, African states for the most part opted for the nation-state model inspired by their colonial masters. Consequently, the constitutionalism of the newly independent African states emphasised national unity, an absolute obsession of state leaders, while demonising ethnicity, when it was not simply forgotten. Presented as one of the major causes of the state crisis in Africa, the liberal nation-state model has proven incompatible with African composite societies. Hence the imperative need for African states to reconcile the organisation and functioning of the state with their own values, and thus forge a typically African constitutional identity. The revival of constitutionalism integrates this tendency to appropriate African values, despite the criticisms of this option. The role given to ethnicity, a central element of African society, is symptomatic of this trend. The ethnic group is gradually emerging from its lethargy to occupy an increasingly important place and punctuate the political and institutional life of the state. The principle of equality is softened by the mechanisms tending to favour some people to ensure their representation in state institutions. The principle of the indivisibility of the state gives way to the formation of a ‘Republic of lands and territories’ with overlapping citizenships, where the sons and daughters of the soil enjoy comparatively more rights and privileges than any other nationals from other origins. Finally, as a vehicle carrying traditional values, customary law is gradually recognised and constitutionally protected.