The (Il)Legitimacy of Constitutional Amendments in Africa and Democratic Backsliding

Abstract

In contexts of hegemonic party or de facto one-party states, political leaders in many African countries have historically resorted to ostensibly proper constitutional amendments to undermine concessions toward constitutionalism at moments of vulnerability at the time of constitutional writing, creating consistent questions of amendment (il)legitimacy. This chapter argues that amendment legitimacy is a function of ‘broad consensus’. The idea of broad consensus as a basis for constitutional amendment has found expression in the African Charter on Democracy, Elections and Governance. Traditional amendment procedures, in the form of supermajorities and referendums, have proved imperfect proxies to ensure such broad consensus. This chapter argues that political parties must be considered the key locations of division of powers and checks and balances. Accordingly, constitutional amendment procedures should require a level of cross-party approval for key amendments. Such a process would not only enhance the legitimacy of amendments, but it could also provide a useful check on contemporary forms of democratic backsliding where incumbents rely on formal processes to undermine democratic competition. While such a process could make constitutional changes more difficult, it does not necessarily undermine popular self-governance (and its majoritarian expression). The proposal would instead require an inclusive re-imagination of majoritarianism.

Keywords: Constitutional amendment, legitimacy, Africa, National Consensus, inclusive majoritarianism