1.

Editor's Introduction

DEMOCRACY AND CONSTITUTIONALISM IN
EAST AFRICA: TAKING CRITICAL STOCK

Issa G. Shivji+

I.

The Opening and the Closure

The post-cold war liberal model of democracy was swallowed lock, stock and barrel by a large majority of East African scholars, including its radical wing. As a consequence, ten years down the line, there is cynicism and skepticism across the social spectrum. The so-called “international community”, to use the grossly inaccurate term for the Western hegemonic powers, is utterly disgusted with the performance of the “new” African democracies. If they continue to pay them lip-service, it is because they would not want to lose their recaptured backyard to the uppity Asian lion (China) or the South East Asian tigers. African politicians-in-power and the African masses did not take the promise of the new democratic El Dorado seriously, albeit for different reasons. While the power elite dragged its feet or made ‘paper’ reforms, the masses were sidelined as spectators of the unfolding drama of multi-party squabbles, rigged elections and doctrinal constitutional changes.

In East Africa, President Moi of Kenya once again proved to be the ‘artful dodger’, to the chagrin of his former Western backers. Nevertheless,  Kenyans have proven their resilience. The discourse on constitutional review continues unabated. Moi has even appointed a Constitutional Review Commission under the chairmanship of a well-respected East African intellectual, Professor Yash Ghai.

More than discussing and debating, Kenyan intellectuals have risen to their traditional reputation of superb organizing. The NCEC (National Convention Executive Council), which manages to get together elected delegates numbering in hundreds from all over the country and from different walks of life to hold their assemblies, is no mean feat. Yet the debate remains frozen, primarily in the liberal constitutional mode. Their Ugandan counterparts are avowedly perhaps more of political actors and less of patient organizers. Ugandan intellectuals, by and large, seem to ensconce their critical vision in the demand for a multi-party system of government. A substantial number of them remain in self-exile in the US and elsewhere having been part of the Diaspora during the Amin period, while Museveni endears himself to the Americans.

As a darling of the Americans, Museveni was able to stick to his ‘no-party’ guns until he turned his guns against a fellow American darling, President Kagame of Rwanda. Nonetheless, perhaps to the credit of his political Machiavellism, Museveni’s was the only regime in this part of the world, which followed the textbook prescription of constitution making - a constitutional commission followed by an elected constituent assembly - to adopt Uganda's 1995 Constitution. This was a major departure from the East African tradition under which new constitutions were made through converting pre-existing legislative bodies into constituent assemblies, and thus fatally eroding their political legitimacy.

Yoweri Kaguta Museveni may not have the political charisma and charm of the person whom he considers his mentor, the late Julius Kambarage Nyerere, but he has certainly learnt Mwalimu’s political lessons well. While conceding a constituent assembly, Museveni played his decisive cards close to the chest. The Constituent Assembly (CA) was free to decide anything, including an elegantly crafted bill of rights, except to reinstall kingdoms or multi-party system. If they did dared to, Museveni empowered himself to call a referendum over the heads of CA delegates. In the event, that possibility never came to pass. Everyone knew, including the erstwhile delegates, that Museveni would win a referendum, if not by hook then certainly by crook. (Indeed, in a later referendum and 2000 Presidential elections, Museveni proved himself as adept at the ballot box in demolishing his former friends-turned-rivals, as he had proved with the bullet, when his former-comrades-turned-challengers dared confront him.) Just as Julius Nyerere could not stand being outshone by an intellectual-politician, so Yoweri Museveni would not brook Kizza Besigye’s-moves on the political chessboard. He would rather sweep clean the chessboard itself than surrender even a single pawn. Besigye now finds himself in exile.

The introduction of a multiparty system in Tanzania was an entirely  different ball game, thanks to Nyerere’s “fatherhood”. Mwalimu’s political virility could steer the return to  multipartism in 1992 with relative ease, just as it had spawned the one-party system a generation ago – and still remain the father of the nation! Astute as he was, Nyerere saw the writing on the wall. Multipartism was inevitable. The rehabilitation of Western imperial hegemony (after the colonial wars of liberation) would ensure it. The masses too were desperate. The more articulate among them would grab the liberal opening to put people’s democratic demands on the agenda, whose outcome no one could predict. Contributions by the people in villages and elsewhere before the Nyalali Commission left no one in doubt that the nation across the board was crying out for a fundamental democratic change beyond multiparty. An anecdote  will suffice to make the point.

The Nyalali commissioners typically heard a host of grievances and problems narrated by people, particularly in the rural areas, which ranged from shortage of medicine in dispensaries to the grabbing of village land by parastatals and investors. In one such meeting, an elderly peasant stood up, (perhaps typically spit on the side and leaned on his walking stick), and began a long harangue on the problems that villagers face. At the end, he rhetorically asked, ‘Honourable commissioners, you have asked us: what do we want, single party or many parties? Of course, single party. With one party we have so many problems, with many parties, we’ll have double the problems!" 80 per cent of Nyalali’s sample wanted one-party yet the Commission recommended multi-party and the National Conference of the ruling party 100 per cent voted for multiparty.

The Nyalali commission reasoned that although the large majority sampled wanted single party, it was also true that the kind of changes that the majority was demanding could only be effected in a multi-party system. Call it non sequitur, naïve or politically expedient, what is certain though is that, like their appointing authority, the Nyalali Commissioners had already made up their mind to recommend multiparty. What is also certain is that the Commissioners singularly failed to understand that the old man who wanted single party was rejecting the idea of parties,  but not the phenomenon of democracy. This becomes clear when one examines the evidence given by villagers to another Presidential Commission on Lands, which was holding public hearings during the same time as the Nyalali Commission. There the overwhelming battle cry of the people was that they had not been involved (“hatukushirikishwa”) in the decision-making processes on the allocation and use of land. They were demanding to be involved, to be consulted, in short  they were demanding democracy! By swiftly introducing multiparty at the stroke of a pen, Nyerere pre-empted the development of a debate and deeper discourse on the meaning, content and a bottom-up struggle for meaningful democracy.

Stuck in the constitutionalist mode, East African intellectual discourse seems increasingly sterile and fruitless, leading to despondency among intellectuals and despair among activists. Yet East African intellectuals, including lawyers, who are not otherwise known for intellectual profundity, have a rich tradition of interdisciplinary thought, critical outlook and deep commitment to the exploited classes and oppressed masses. Why then in the democracy debate, which was undoubtedly an opening to spearhead a sustained discourse on the future of our societies, is proving to be a closure on deeper reflection and critical understanding of our societies? Why have our debates tended to go round and round the same doctrinal principles of constitutionalism and liberal models of democracy without querying whether these principles and models have a real relevance to our societies? For an answer we need to turn the  intellectual searchlights on ourselves!

II.

A note on the East African Contitutionalist Discourse

Lest we belittle ourselves and give credit to the devil where it is not due, let us refresh our memories that the discourse on democracy was not introduced and initiated by the West. It was part, albeit the tailend, of the great intellectual ferment of the 1960s and 1970s for which the campus of the University of Dar es Salaam was well known. And this was not a Tanzanian affair only. It was East African. (Many a leading intellectual light of East Africa today, including a president and ministers, traces his/her intellectual antecedents to “the Hill,” as the University of Dar es Salaam campus was fondly known.) On the occasion of the centenary of Marx's death in 1983, East African participants at a workshop in Dar es Salaam declared, 'The central question of the African revolution today is democracy.' And University students and faculty fired the first salvoes in the struggle for democracy and freedom to organise.

However, the discourse of the 1960s and 1970s had a distinct character and this is where one notices a curious disjuncture between it and the current constitutionalist discourse. The earlier discourse sought to understand our social order analytically and did not shy away from theory and theorising, in the belief that  'there is no royal road to science'. It prided in asking larger questions about our societies and social order: how did it get to be where it is, what does it do to those who live under it and in what direction is it moving? We used the methods of political economy and the approaches of historical materialism to interpret and understand our society with a view to changing it for the better. We had a grand vision of building a humane society. We thought in epochal terms and painted our dreams on the broad canvass of whole humanity. We derided the compartmentalisation of knowledge and ahistorical and asocial bourgeois law and social science. While agreeing with Marx that, 'Philosophers have only interpreted the world in different ways, the point is to change it,' we equally reminded ourselves with Amilcar Cabral that, 'if it is true that a revolution can fail even though it be based on perfectly conceived theories, nobody has yet made a successful revolution without a revolutionary theory.'

The constitutionalist and democracy discourse of the current period is fundamentally different. It eschews analysis and pooh-poohs theory. It is descriptive, prescriptive, eclectic, both in theory and practice, and politically hegemonic, where hegemonies are beyond intellectual enquiry, or, at least, not part of the mainstream discourse. Once upon a time, NGO activists used to say, ‘Think globally, and act locally’. Nowadays, our erstwhile benefactors tell us, ‘Don’t think, only act - and we shall fund both!" But can we act without thinking? In what direction shall we act and for whose benefit? Aren’t these precisely the questions that we, the intellectuals, are supposed to ask, address, think and theorise about? Yet the liberal discourse is intellectually debilitating. The NGO-human rights activity is singularly prone to draining militancy. The constitutionalist debate is pre-eminently accommodative and ultimately legitimises and preserves the status quo. This is not to say that all this has no place in any progressive struggle for liberation and emancipation. Yet, the point is to identify and recognise the place of any struggle for reform in the larger struggle for transformative change. For there is reform and there in reform. There is reformist reform and there is revolutionary reform. My point is that our current discourse is devoid of such social and political considerations, and devoid of, not only a grand vision, but also a definite theoretical direction.

I want to suggest that our current frustrations, despair and disappointments are partly inherent in the nature of our current intellectual discourse and lack of a vision grounded in a socially  emancipatory project. The least that can be said, therefore, is that we need to revisit and deeply reflect, collectively as an intellectual body, on the liberal constitutionalist project.

III.

The Contents

The survey of constitutional developments in the three East African countries in the year 2000 richly documents important constitutional and electoral changes. They once again illustrate the hopes, fears and frustrations I have noted in this introduction. There are a few positive developments but significantly more setbacks. 'One step forward, two steps back' seems to be the norm in the countries of the region. Yet all steps - forward or backward - cry out to be interpreted, analysed and understood in relation to the larger trajectory of national liberation and social emancipation.

Tusasirwe on Uganda vividly shows the tension between a bold court and a timid, executive-dominated parliament. At the least, it is illustrative of a truism that a fine, professionally crafted constitution in itself can produce little by way of democratic polity, if the state itself is not democratically organised nor is the political economy supportive of democratic practices. The tug-of-war between the courts and parliament is perhaps a symptom of the larger question, the organisation and structures of our states in Africa.

For Kenya, Kioko's piece reinforces our faith in the people. That is a silver lining. Petty bourgeois intellectuals may despair and give up hope but the people have no choice. They continue to struggle for that is their mode of existence. But how do the struggles of the petty bourgeois relate to those of the people: What is the standpoint of such struggles, in whose interest and for whose benefit? Only such deeper questioning can get us out of the sense of impasse' and stalemate which has become so pervasive.

Mallya's piece on Tanzania shows the longstanding stubbornness of the ruling party there to reconsider the constitution generally, and in particular, the 35-year-old union between Tanganyika and Zanzibar. For the first time in the recent political history of the country, we had dozens of deaths in cold blood at the hands of the police on the island of Pemba. Signs of bloodletting by the recalcitrant police, particularly its paramilitary wing, the FFU (Field Force Unit), were already there when it killed four people at Mwembechai in front of TV cameras in 1998. Regrettably, no one was held accountable. The government stubbornly refused to investigate the incident.

The government tried to shove the constitutional question under the carpet by producing a White Paper and appointing its own committee under a Court of Appeal judge, Mr. Justice Kisanga, to co-ordinate the views of the "people" on the White Paper. The Committee's recommendations satisfied neither the people nor the rulers. The President of the Republic rejected Kisanga Committee's recommendation that a federal structure with three governments deserved consideration with anger. Instead, we saw the introduction of the 13^th Constitutional Amendment discussed by Mallya. Among other things, it brought back nominated members of parliament; did away with the necessity of 50% or more votes for the election of the President, thus opening doors for a minority president and, for the first time, defined "Ujamaa na Kujitegemea" ('socialism and self-reliance') in the interpretation section of the Constitution. By that definition, one would be hard put to find any country in the world, which does not swear by the policy of "Ujamaa na Kujitegemea"! Curiously, when Ujamaa was the actually existing state ideology, no one felt the need to define it. Now that it has been ditched, as everyone knows, the rulers feel the need to define it.

Maria Nassali in her detailed piece on the East African Community makes a clarion call for the construction of an East African Civil Society. A noble sentiment. But where are the forces to carry through such project. Pardon me for saying so, but the erstwhile world of FFUNGOS (foreign-funded NGOs) does not have a political vision, a coherent ideology backed by a robust theory or the stamina for protracted struggle to envisage such a project. NGOs agenda revolve around 'awareness raising' and 'human rights advocacy', all of which may be well-intentioned and good, but hardly a vision and a programme conducive to social emancipation and national liberation from the clutches of imperialism, rechristened globalisation. Just as you cannot bite the hand that feeds you, one cannot use the master's weapons to pull down his house!

The seeds for a people's conception of an East African Society were planted as long ago as 1937 when the militant trade union leader from Kenya, Makan Singh, formed the Labour Trade Union of East Africa. According to its constitution, one of the duties of its members was:

To attain class consciousness and for the betterment of the labour class to promote such class consciousness in others and never to miss an opportunity of gaining their trust. (Class consciousness is that stage when a worker begins to feel the difference between a capitalist and himself; when he comes to know that in fact he is being robbed by capitalists and when he begins to make propaganda against such robbery.)

Perhaps such a project was pre-mature and ahead of its time. Makan Singh's East African pretensions were nipped in the bud by the colonial state. The Labour Trade Union of East Africa never made much headway in Tanganyika and Uganda and became defunct until it was finally removed from the register in the 1940s. We have perhaps to plant these seeds afresh in our own conditions . However,  are we, the constitutionalist intellectuals, up to it?

IV.

Concluding Remarks:
Once more, the 'Committment of the Intellectual'

In this discussion I have been assuming that there is a significant body of intellectuals in East Africa, in different disciplines and walks of life, who share a common commitment to the oppressed masses and exploited classes and who want to understand their society so as to change it to a more humane and rational social order. That is the minimum 'commitment of the intellectual' which I have taken for granted. If so, the issues I have been raising essentially interrogate not our commitment (which is assumed) but our current intellectual and activist work and whether our mode of operation, so to speak, correspond to our commitment.

We, therefore, need to reforge our theories and reconstruct our discourse from the standpoint of the oppressed masses and the exploited classes. We need to interrogate our constitutionalist, democracy and human rights discourse, theorise it, contextualise it and understand deeper social and political interests and the national and global contests which underlie it. For, needless to say, these discourses are historically constructed ideologies. And ideologies are contested paradigms, not absolute or eternal truths.

So while we survey constitutional developments and the state of governance and human rights in our countries, we should not lose sight of the basic 'commitment of the intellectual' and always find ways and means of operationalising our commitment in the specific historical and social context of our countries, societies and communities.

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