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Winter School confronts the crisis of democratic constitutionalism in Africa

21 August 2024 | Story Leonie Bolleurs | Photo Supplied

Law Winter School 2024 — Participants in the Winter School on African Constitutionalism had the opportunity to acquire the latest knowledge and information on African constitutionalism.

The African Network of Constitutional Lawyers (ANCL) and the Faculty of Law of the University of the Free State (UFS) recently hosted a Winter School on African Constitutionalism titled Confronting the 'Crisis' of Democratic Constitutionalism in Africa. According to Khanya Motshabi, Senior Lecturer in the Department of Public Law and Strategy Lead: UFS Reparation Hub at the UFS, the 2024 Winter School is a first for Africa.

Motshabi said the aim of the winter school, which was attended by members of the UFS University Management Committee, academia, students, experts in constitutional law, law practitioners, and justices of the Constitutional Court of Zambia, was to gather prominent and emerging African intellectuals, practitioners, judges, and policy drivers to assess the state of democratic constitutionalism in Africa. “We wanted to explore the progress and failures of the past decades, place African developments in a global context, analyse current problems, and propose solutions for building an African version of democratic constitutionalism that reflects its unique circumstances, challenges, experiences, and popular preferences,” he commented.

Prof Anthea Rhoda, Deputy Vice-Chancellor: Academic, attended the event, providing opening remarks and emphasising the alignment of the winter school with the university’s Vision 130. She highlighted the university's commitment to social justice and its broader mission to impact society by addressing persistent social problems and fostering transformation across the African continent. “Our vision alludes to the fact that universities are expected to play an important role in providing skills, building the economy, solving persistent social problems, and transforming our post-apartheid society,” she remarked, adding that the discussion and input of this winter school are not only focused on South Africa, but also aim to confront the issue of democratic constitutionalism across the African continent.

Prof Vasu Reddy, Deputy Vice-Chancellor: Research and Internationalisation, who also attended the event, said, “This is a highly prestigious meeting that brings a great gathering of African scholars and judges from an apex court in Zambia to Free State soil. A meeting such as yours offers excellent opportunity to think more deeply about African constitutionalism that triggers further engagement on continental development, law, society, and politics.”

Prof Reddy also commented on the theme of confronting the crisis of democratic constitutionalism: “You engage an important theme and topic. ‘Crisis’ is an important word and presents possibilities. Not only does it describe the challenges and dangers of wicked problems facing us, but central to its meanings are also the opportunities at our disposal.”

Decline in constitutional democracy

The ANCL and the UFS Faculty of Law are concerned that although constitutional democracy has grown over the past 30 years, it has declined in the past decade. Regimes maintain the appearance of democracy while ignoring its fundamental principles, such as free and fair elections and the rights to speech, expression, and association. Anyango Oyieke, ANCL Secretary-General, noted that effective constitutional democracy requires not only institutional arrangements, but also an active civil society, strong political parties, and a culture that tolerates differences and exercises power with restraint.

Motshabi and Oyieke believe that despite varied democratic experiences in Africa, many countries have seen a decline in democratic governance marked by constitutional manipulation, intimidation, flawed elections, and military coups. Even where elections are credible, the winner-takes-all mentality undermines governance and delivery of basic needs. High levels of insecurity, stalled poverty reduction, and worsening youth unemployment contribute to a preference for military regimes over democracy. Motshabi and Oyieke observe that the African Union and Regional Economic Communities struggle to fulfil their democratic promises, undermining the legitimacy of democracy and putting constitutionalism and governance in crisis.

The event addressed several key thematic areas, including the development of a theory of African constitutionalism, examining the historical context of constitutionalism and nation-building, and integrating decolonisation within constitutional theory. Discussions also covered human rights and constitutionalism, the establishment of institutions to secure democracy, how effective dictators think, and the use of constitutional petitions as tools to entrench constitutionalism. Additionally, the role of elections and electoral processes in a constitutional democracy was explored, along with the impact of undemocratic changes of government on the principles of constitutionalism.

Valuable insights on African constitutionalism

Frontline constitutional scholars of African descent and colleagues from around the world brought the latest knowledge and valuable insights into African constitutionalism.

Dr Gerard Kamga, Division Coordinator: Research and Postgraduate Programmes in the Free State Centre for Human Rights and Programme Director for Research and Postgraduate Studies in the Faculty of Law, delivered three sessions. The first two sessions explored The Mechanics of (Un)Constitutional Power Transfer in Postcolonial Africa: the case of Françafrique. Dr Kamga’s third session addressed Currency, Constitutionalism, and Sovereignty. On the second day, Prof Charles Fombad, Professor of Law and Director of the Institute for International and Comparative Law in Africa at the University of Pretoria, presented on Towards a Theory of African Constitutionalism. Prof Danie Brand, Director of the Centre for Human Rights and acting Judge of the High Court of South Africa, contributed a presentation on Constitutionalism and Transformation in Africa.

Motshabi himself led sessions on Confronting the Past: Constitutionalism and the Making of a Nation State and Decolonisation and Constitutional Theory. From beyond South African borders, Prof Azubike Onuora-Oguno, Associate Professor in the Faculty of Law at the University of Ilorin and a solicitor and advocate of the Nigerian Supreme Court, discussed Human Rights and Constitutionalism. Oyieke covered How to be a dictator, which analysed how effective dictators think and undermine constitutional democracy. Prof Wahab Egbewole, Professor in the Faculty of Law and Vice-Chancellor of the University of Ilorin, as well as senior advocate in the Nigerian Supreme Court, spoke on Unconstitutional Change of Government. Prof Tameshnie Deane, Vice-Dean: Research and Postgraduate Studies of the UFS Faculty of Law, delivered the final session on Constitutional Petitions as a Tool for Entrenching Democracy.

Democratic governance on the continent

Motshabi concluded that the one-week course aimed to fill an important gap by offering participants the chance to acquire the latest knowledge and information on African constitutionalism. The course provided an analytical and critical appraisal of current issues and the unique opportunity to conceptualise solutions while practising the art of networking. By developing a collaborative environment, the winter school not only highlighted the progress and failures of the past decades, but also encouraged the development of innovative solutions tailored to Africa's unique circumstances. This initiative marks a significant step towards building a strong and dependable system for democratic governance on the continent.

News Archive

Open letter from Prof Jonathan Jansen to all UFS students

2014-02-22

Dear Students of the University of the Free State

In the past four years there has emerged a new consensus on the three campuses of the University of the Free State (UFS) about the things that divide us – such as racism, sexism and homophobia. Students and campus leaders have worked hard to develop this new consensus in residences and in the open spaces on campus. There can be no doubt that new bonds of friendship have developed across the markers of race, ethnicity, class, religion and sexual orientation. I bear witness to these new solidarities every day on the campus.

You chose a white student to head up the transformation portfolio on the SRC. You chose a black captain to head up the university’s first team in rugby. You chose a white “prime” as head of residence to lead a predominantly black men’s residence. You chose a South African woman of Indian descent as Rag Queen and last week, a black student from Cape Town as the men’s Rag winner—choices not possible and never made before in our campus history. Many of you have intimate friends who come from different social or cultural or religious backgrounds. You learn together, share rooms together, pray together and party together. In other words, in the day to day workings of this university campus, you have demonstrated to campus, city and country that we can overcome the lingering effects of racism and other maladies in this new generation. You have helped create a university community inclusive of people of diverse religions, abilities, class and sexual orientation.

I have said this repeatedly that from time to time this new consensus will be tested – when a minority of students, and they are a small and dwindling minority, still act as if these are the days of apartheid. And when that consensus is tested as it was this week, and as it will be tested in the future, only then we will be able to assess the strength and durability of our progress in creating a new South African campus culture of human togetherness based on respect, dignity and embrace.

The real test of our leadership, including student leadership, is how we respond when our transformation drive is threatened.

Let me say this: I have absolute faith in you, as students of this great university, to stand together in your condemnation of these vile acts of violence and to move together in your determination to maintain the momentum for the Human Project of the University of the Free State. We have come too far to allow a few criminals to derail what you have built together in recent years.

There will, no doubt, be unscrupulous people on all sides of the political spectrum wanting to milk this tragedy for their own narrow purposes. There will be false information, rumours and exaggerations by those who wish to inflame a bad situation to gain mileage for their agendas. That is inevitable in a country that is still so divided.

I ask you, through all of this, to keep perspective. Two or ten or even twenty students behaving badly do not represent 30,000 students; a minority of violent and hateful persons do not represent the ideals, ambitions and commitments of the majority. At the same time, let us be realistic – anyone who thinks you can drive transformation without resistance clearly does not understand the difficult process of change.

The events of the week remind us, however, that we still have a long road to walk in deepening social and academic transformation at our university. Yes, we have invested hundreds of hours in training and mentorship; we have created new structures – such as the Institute for Reconciliation and Social Justice – to capture the energy and imagination of students driving transformation; we have created many opportunities for students to study and travel on this and other continents to enable cross-cultural learning; we have established formal and informal opportunities to dialogue about difficult issues on and off campus between students and their leaders; and we crafted new curricula to enable teaching and learning on the big questions of our times.

But this is clearly not enough, and so I have decided on the following immediate next steps:

We will meet for several hours next week to think about how we can deepen the transformation of our university after this terrible incident.
We will arrange a University Assembly on the events of the past week so that we speak with one voice on human wrongs and to re-commit to human rights and we will continue with open forum discussions during the months to come.
We will review the entire spectrum of programmes, from orientation to residence life to the undergraduate curriculum, to determine how effective our interventions really are in reaching all students with respect to basic issues of human rights.
We will review our media and communications strategy to determine how far and deep our messages on human rights travel across all sectors of the university community. In this regard it is important that the campus be blanketed on a regular basis with our condemnation of human wrongs and our commitment to human rights.
We will commission the Institute for Reconciliation and Social Justice to review the events of the past week and make recommendations on how we can improve the campus environment so that all students are protected from harm inside residences, classrooms and in open spaces of the campus.
We will take the questions raised during this week into the academic community and to the general staff of the university so that all personnel also engage with our own roles and responsibilities with respect to campus transformations.
We undertake to make annual report-backs on transformation to all stakeholders in public forums so that students and staff and external communities can track the progress of the university on matters of human rights on campus.

I wish to thank my staff for acting firmly as soon as this tragic event came to our attention. We worked through the night to find and identify the perpetrators. We traced the two students and immediately handed them to the police. They were expelled. And throughout this process we offered counselling and support to the victim of this violent act.

The two former students were expelled and will now face justice in the criminal courts. It is hoped that in the course of time they will come to their senses and seek restoration and reconciliation with the student they so callously harmed. They are not part of the university community anymore.

That is the kind of university we are.

Jonathan D Jansen
Vice-Chancellor and Rector
University of the Free State
20 February 2014

Note: The use of the word ‘campus’ refers to all three campuses of the UFS, namely the Bloemfontein Campus, South Campus and Qwaqwa Campus.

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