In Africa for long time the making of a constitution normally followed the end of the colonial regime. The colonial authority had considerable influence on the making of the new constitution, requiring, as the price for independence, that it provides for democracy as well as other rights of the people.
A second phase of constitution making was, rather, constitution unmaking as the new politician leaders shifted to authoritarianism.
The experience of Botswana was however different. First its decolonisation constitution was based on the traditional system in which chiefs played the key role. Second, that constitution has remained in effect, though not without some amendment. Botswana has never had a coup or a dictator.
It is a great compliment to the leaders under that constitution that in all that period, Botswana has flourished as an independent, peaceful state.
In this excellent contribution to what he tells us is a debate already under way, Justice Dingake while acknowledging the critical role of the current constitution, since its establishment in 1966 on independence, proposes its replacement by a very different form. He does this because the Botswana of the present day is very different from when it achieved its independence from the British.
Justice Dingake, now a judge, also a former teacher and scholar, has proposed, in his scholarly way, a transformative constitution. No doubt that it would attract great interest among not only the people of Botswana, but also throughout Africa and other places—among politicians, governments and scholars. Not derogating from the existing system or those who run it, he has put his case so convincingly—and tactfully-- that few would quarrel with his proposals. Now this itself is a major achievement in all of Africa—and elsewhere. However, somehow one has the feeling that among many politicians in Africa -- who tend to resist any limits on their powers -- there would be great resistance to the proposals. As an African scholar who has played some role in the making of a few constitutions in African (and other) states, I am very impressed by the way Justice presents his argument. He makes an excellent case for the transfer to a new system. He puts in an excellent and convincing way how Botswana should move to a new constitution.
He has established an excellent case for the changes he has proposed. It is unnecessary to say that he has a masterly understanding of the African experience with past and present constitutions—and frequently draws on them, focusing on those relatively successful in constitutional transitions.
In Justice Dingake’s scheme the victory would be of the people. His emphasis is on
The purpose of his book is to provide guidance for the drafting (and acceptance) of the new constitution for his country. It provides ample guidance. He traces very well the imperative of human rights (of which he is a profound and ardent scholar). I like in particular his references to the Charter of the African Union, and the African Charter on Human and People’s Rights to which, alas, sufficient attention is not generally given. He reminds us that the values of the Union Charter are “freedom, equality, justice, peace and human dignity”. It is critical that these values become law automatically for Union member states. He says that an African constitution is more than legal rules: “it is a visionary document, expresses the aspirations of the people, securing the future”.
Perhaps his notion of a constitution is over-optimistic: “A Constitution is the glue that keeps the nation together, irrespective of the social standing of its people, religious beliefs and political differences”. However, it is necessary to be a little cautious about the role of the people. Kenya is both a good and a bad example. While in the first part of the process of constitution making, the people’s wishes dominated those of politicians, soon the politicians took over despite their small numbers.
It must be said that popular participation in implementation of the Kenyan constitution has met resistance from politicians, and has been less effective than reading the document would suggest. The question is for how long civil society can dominate politics, especially when its ability to work together is somewhat limited.
The book together with Dingake’s two books; Judges and In Pursuit of Justice are also sold at Exclusive Books OR Tambo International Airport.
*Yash Ghai is an emeritus Professor of Law University of Hong Kong, Chair of Constitution of Kenya Review Commission 2001-4, and founder/director of Katiba Institute, Nairobi.