Egypt’s Plasticine Constitution

On 26 March 2018, Egyptians overwhelmingly voted to elect incumbent Abdel Fattah El-Sisi to another term as their President in an election where the outcome was known in advance. Any genuine competition was eliminated from the pool of candidates through arrests, media attacks, and intimidation. This chapter examines how Egypt has reached point, the implications for its future, and the role that guaranteed electoral processes of the 2014 Egyptian Constitution played in diminishing the democratic quality of elections. The chapter paper takes a three-part approach to analysing the role of the constitution in the decline of democratic principles in the 2018 Egyptian Presidential elections. Firstly, it examines the constitutional protections of eligibility criteria that exist to support the presence of multi-party candidates in presidential elections, exploring how these were abused by the Sisi administration in the run-up to the elections. Secondly, the chapter analyses the creation of election governance bodies, notably the National Elections Committee (NEC), and its malleability in support of Sisi. Finally, the chapter examines the abuse of existing state machinery in the run-up to the elections and highlights how this has undermined authentic, free elections. The chapter links the 2018 elections to subsequent developments, including the 2019 constitutional referendum which broadened even further the Sisi administration’s control over the country at the expense of constitutional protections.

Constitutionalism and Electoral Authoritarianism in Ethiopia

After centuries of monarchical rule, 14 years of military rule, and three years of a one-party political system, Ethiopia adopted a constitution that provides for multiparty democracy. The Constitution establishes democratic institutions and contains democratic principles that are vital for competitive multiparty democracy; it also guarantees civil liberties and political rights, including freedom of expression and association that are critical in this regard. Be that as it may, in the past two-and-a-half decades, no competitive multiparty democracy has existed in Ethiopia. Instead, an electoral authoritarian system was instituted that allowed the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF) and its affiliates to enjoy exclusive control over every level and unit of government. This was so because, among other things, even if the domestic and global political dynamics that were at work when the EPRDF came to power in the 1990s left it with no choice but to constitutionalize multipartyism, its violent history, its vanguardist self-perception, and the developmental-state paradigm it later endorsed have driven it into electoral authoritarianism. The various formal and informal mechanisms that the party put in place, the socioeconomic structure of the country, and the minimal international pressure it faced when not democratizing allowed it successfully to retain its incumbency for more than two decades. New domestic and international dynamics put pressure on the EPRDF to open up the political space and to change its leadership leading to the rise to power of Abiy Ahmed who, having begun as a reformer, is now showing the tell-tale signs of authoritarianism and harbingers of one-man rule.

How Could We Design Democracy to Make it Work in the African Context?

Politics in Africa is becoming increasingly contested. This is true both in terms of electoral politics, with the margin of victory of ruling parties falling in many countries, and in terms of the capacity of citizens to access diverse sources of information with which to hold their governments to account. In turn, the continent’s more authoritarian political leaders—particularly those in resource-rich states insulated from international pressure to reform—have responded by employing new strategies to manipulate elections and restrict the flow of information. Taken together, these two trends help to explain why parts of sub-Saharan Africa has experienced democratic stagnation, and why so many recent elections have been controversial and, in a number of high-profile cases, violent. It is therefore more important than ever to understand how to design democratic constitutions in a way that manages the centrifugal forces that electoral competition can generate. This chapter discusses two strategies for achieving this goal: integration (the promotion of a single unified national identity through more centralized institutions), and accommodation (the recognition of subnational group identities through their formal inclusion in the political system). Although Alan Kuperman has recently made a strong case in favour of integration, this chapter comes to a different conclusion. While recognizing the risk that rapid institutional change will destabilize fragile political systems, I argue that we have good reason to encourage more inclusive political systems and so need to give greater thought to how they can be safely introduced.

Local Multiparty Democracy in Africa

This chapter argues that democratic local government embeds the culture of democracy at grassroots: as the government closest to the people, it establishes a culture of responsiveness, transparency, and accountability more readily and effectively than by holding national leaders to account. Local democracy can also be used strategically when a country seeks to move from an authoritarian or military regime to democracy. Furthermore, it provides space for political inclusivity—an argument with particular relevance in ethnically diverse societies, where a winner-takes-all paradigm of competition at the national level typically results in the marginalization of geographically concentrated losers. Finally, local government allows for experimentation in different forms of inclusive politics, be they representative or participatory. However, although most African countries have adopted decentralization policies, the dividends are meagre. Local government is but feebly equipped to play a democracy-constituting role: operating in a constrained constitutional environment, central governments have generally not allowed local governments the opportunity to hold regular free and fair elections and thereby play a role in democratization. Despite these findings, there is also some evidence that on occasion local democracy has indeed played such a role and thus enhanced democratic participation.

The African Union and the Advancement of Democracy

The African Union (AU) has as one of its goals the promotion and protection of democracy, human rights, and constitutionalism. A critical element of this goal is the rejection of unconstitutional changes of government (UCG), particularly in the form of coups d’état. While there have been some inconsistencies, the AU has rejected coups d’état and called for the reinstatement of democratic dispensations. Nevertheless, the UCG framework has been unable to stem subtler mechanisms of retaining power, such as the suspension of elections or the imposition of ostensibly proper constitutional reform initiatives. This chapter calls for increased attention to the latter forms of extending governmental power. Specifically, it recommends the establishment of formal mechanisms through which the AU can engage directly and offer assistance at moments when reform proposals are debated so as to ensure that domestic actors take cognizance of both the relevant AU frameworks and the comparative continental and global experience. Such a mechanism would be comparable in its workings to the Venice Commission of the Council of Europe.

Democracy, Elections, and Constitutionalism in Africa

The 1990 wave of democratization and constitutional reforms in most African countries seems to have signalled a strong commitment to the idea that competitive multiparty elections are the only legitimate basis for democratic governance. This trend was reinforced by the African Union’s adoption of a range of measures to promote democracy, good governance, constitutionalism, and the rule of law. The most important of these is the African Charter on Democracy, Elections and Governance (ACDEG), which came into force in 2012. Save for Eritrea and Eswatini (formerly Swaziland) and a few countries engulfed in conflict, such as Libya and South Sudan, multiparty elections have become the norm among African states. However, after a brief period of free and fair elections during which numerous countries saw peaceful alternations of power, the quality of elections declined, entering what has been characterized as a mild but protracted recession. Many recent elections have degenerated into little more than exercises in competitive authoritarianism. The full potential for democracy and constitutionalism in Africa is thus yet to be realized. This chapter highlights key issues that have arisen in the struggle to institutionalize an ethos of democratic governance, examining the link between democracy, elections, and constitutionalism, then identifying the main strides taken in promoting democratic governance, as well the main challenges impeding those strides. Although support for democracy is growing, there is no room for complacency: the continent’s transition to democracy remains at serious risk of degenerating into a mere exercise in attempting to contain a ‘zombie’ democracy.

Competitive Authoritarianism in a Constitutional Democracy

The overwhelming dominance of the former liberation movement the South West Africa People’s Organisation (SWAPO) in terms of electoral support since independence resulted in a de facto one-party rule in Namibia’s democracy for the last 30 years. This has, in democracy theories, been labelled as competitive authoritarianism, and made it easy for SWAPO to fully endorse the democratic principles vested in the country’s Constitution, adopted as the last step to national sovereignty resumed on 21 March 1990. This chapter presents an overview on the SWAPO dominance in Namibia’s political system. It then looks at the degree the party and its leaders recognize and respect the constitutional democracy. It ends with a summary of the last National Assembly and Presidential elections, which suggest a turning point towards a loss of dominance and legitimacy of SWAPO, while still retaining the political control.

Adjudication of Disputed Presidential Elections in Africa

In almost all countries, the presidency is the most powerful and coveted position. Not only does it give access to, and control of, the country’s resources, but it also allows the incumbent control of the use of coercive force. It is thus little wonder that most of the post-electoral violence in Africa has centred around presidential elections. The reintroduction of multipartyism in the 1990s brought about intense competition for this most coveted position, and over the years the frequency of disputes as well as their intensity and threat to Africa’s fledgling constitutionalism have increased. Although most of these disputes have ended up before the courts, there has been no systematic attempt to understand how the courts deal with such disputes. This chapter intends to fill this gap in the literature. Adapting a comparative perspective, it begins by examining the mechanisms different African countries use to adjudicate disputed presidential results, and then looks at the main trends in the decisions courts have taken in this regard. Despite the range of mechanisms and procedures that exist, with the exception of the unprecedented decisions of the Kenyan Supreme Court and Malawian Constitutional Court nullifying the results of presidential elections in 2017 and 2020, respectively, the courts or adjudication bodies in all other cases have confirmed the election results. This chapter will try to find out why this is so and what lessons can be learnt from the decisions.

Constitutionalism and Developmental Authoritarianism

This chapter contributes to the debate about ‘presidents for life’ in sub-Saharan Africa. Through an analysis of Paul Kagame’s leadership in Rwanda, it seeks to understand the legitimizing factors that could explain the resilience of personalized authoritarian regimes and the extent to which these factors undermine constitutionalism and democracy. The first part of the chapter examines the phenomena of personal rule and power legitimation in sub-Saharan Africa and how they were impacted on by colonial rule, independence, ‘democracy’s third wave’, and the more recent period of ‘democratic recession’. The second part appraises the case of Rwanda through the three prisms of history, power, and law. First, it is argued, the legitimacy of the ruling Rwandan Patriotic Front (RPF) stems from the fact that it ended the genocide. Second, the RPF is seen as effecting a ‘miracle’ by transforming a devastated country into one where real socio-economic gains were made. Finally, the authoritarian tendencies which have minimized opposition to the regime are not openly contested, neither internally nor externally. With the emphasis on national unity, the RPF is portrayed as being a non-negotiable pre-condition for political stability and prosperity, thus condoning any democratic deficits.

Multiparty Democracy in Zimbabwe after the Adoption of the 2013 Constitution

Zimbabwe adopted a new Constitution in 2013 which, among other objectives, sought to give greater legitimacy to multiparty democracy. This Constitution strengthens the role of an independent electoral commission, entrenches an array of political rights and freedoms, and requires multilevel government elections. The harmonized elections of 2013 and 2018, which were held under its regime, did not seem to have changed the previous patterns of disputed electoral processes and outcome. Both the electoral process and outcomes for these elections were disputed and subjected to court challenges. The main opposition, the Movement for Democratic Change (MDC), continue to cry foul that elections are stolen in favour of the ruling Zimbabwe African National Union—Patriotic Front (ZANU-PF) political party. On the other hand, ZANU-PF argues that it wins elections fairly and squarely as it has always done in the past because it is the most popular political party. This chapter addresses the question of whether the new Constitution has been able to end a culture of disputed elections and, therefore promote effective multiparty democracy. If not, what are the major obstacles and areas of contention? It will do so by examining the harmonized elections that have so far been held under its regime—the 2013 and 2018 harmonized elections.