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Charles Manga Fombad

Charles Manga Fombad

It is generally recognised that election management bodies (embs) constitute one of the most important institutions needed to sustain Africa’s fledgling transition to democratic and constitutional governance. They are needed to ensure that all political actors adhere to the rules of the electoral contest and that the outcome of elections are not predetermined and are based on free and fair processes that reflect the genuine will of the people. However, frequent incidents of post-election violence in which citizens question the role played by the embs in the last few years have raised many questions about their role, which has not been systematically and thoroughly investigated.

This paper aims to take a critical look at the legal framework relating to the setting up and regulation of embs in a selected number of countries in the Eastern and Southern African region to see whether there is any possible connection between the manner in which they are structured and the effectiveness of their operations. Does the legal framework of an emb have anything to do with the acceptance or non-acceptance of the electoral results of elections organised by the emb? Are there any lessons that can be learnt by comparing the legal framework of the embs of countries where election results are generally accepted with that of countries where the announcement of election results have often provoked violence? The establishment of an emb is supposed to be a clear sign of a firm commitment by a country to constitutionalism and constitutional democracy. This does not always turn out to be so. From the comparative analysis of the experiences of the selected countries, this study will highlight some of the major lessons that can be drawn in designing embs in order to enhance their performance and credibility.

Constitution-Building in Africa

The Never-Ending Story of the Making, Unmaking and Remaking of Constitutions

Charles Manga Fombad

Constitution-building is a delicate and intricate process which requires ample reflection and careful choices. African constitution-builders and politicians have since the beginning of the 1990s embarked on a process of constitutional reforms. A careful examination of the developments of the last two decades shows that the process has almost provoked never-ending contagion of making, unmaking and remaking of constitutions. This paper attempts to provide an over-view of the changes that have been taking place. Some of the issues relating to the durability of national constitutions and theoretical foundations for constitutional change are discussed. The paper also considers some of the possible implications of the endless processes of making, unmaking and remaking constitutions. The critical question it tries to grapple with is how this unending process of constitution-building in Africa can be controlled in a manner that will ensure peace, political stability and provide a legitimate foundation for entrenching a firm culture of constitutionalism. In advocating for an entrenched permanent constitutional review commission to check against frequent and arbitrary constitutional changes, the paper argues that this is the best way for constitutional legitimacy to be sustained throughout the life of a constitution.

Charles Manga Fombad and Enyinna Nwauche

Abstract

A fundamental tenet of modern constitutionalism is that nobody, regardless of his status in society, is above the law. Constitutional reforms in the 1990s saw the introduction in many African countries of constitutions which for the first time provide some prospects for promoting constitutionalism and respect for the rule of law. This article reviews the extent to which these reforms have addressed the issue of presidential absolutism and the abuses that go with it. It examines some of the factors that made African presidents to be so powerful that the conventional constitutional checks and balances could not restrain their excesses. It also reviews the attempts to limit impunity through immunity provisions. It concludes that unfortunately, the 1990 reforms did not adequately address the problem of presidential absolutism. A number of ways, nationally and internationally, in which presidential accountability could be enhanced and the culture of impunity ended is suggested.