Role of civil society as advocate of constitutionalism and rule of law

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Background

In constitutional democracies, constitutions are expected to empower democracy, since they create and entrench institutional structures, mechanisms and frameworks for decision making. Moreover, constitutions are expected to ensure the protection of fundamental and collective rights of citizens. In this context, the relationship between individual citizens and various communities should normally be guided by constitutional and legal provisions and not subjected to governments’ direct interference. Citizens should enjoy the fundamental right to form any private association within the law, without state intervention. 1 Political parties however seem to occupy a specific position with regard to state non-interference, since on the one hand they are merely citizens’ associations, while on the other hand they also aim to gain access to government power, which makes them major stakeholders in the sphere of national public policy and constitutional life. Party constitutionalisation, which is the process of attributing constitutional status to political parties,2 implicitly recognises the ‘ambiguous’ status of political parties, as they belong to both the state and civil society spheres.
Unlike the trends observed in Western Europe, where party constitutionalisation started in the late 1940s, the history of party constitutionalisation is fairly recent in Africa. Indeed, beside the rise of liberation movements during the colonial period, the actual emergence of African political parties only took place around the time of African countries’ independence. This is because the colonial period was not characterised by any form of democratic or constitutional regimes, 5 hence party pluralism was not a prime concern. Historically, although at independence African constitutions made implicit or explicit provisions for the protection of the rights of political parties (multi- partyism), by the mid-1960s most Sub-Saharan African constitutions were transformed to make provision for only one-party systems.
The one-party system era came to an end in the 1990s’ wave of African democratisation when most African states amended their constitutions to embrace multiparty systems, good governance and the rule of law.7 As in the post-war European experience,8 considering the key role that political parties were expected to play in the early 1990s’ African democratic systems, it had become important for states to legalise their existence through various national instruments, primarily through constitutions. The thesis aims to assess how the constitutionalisation of political parties is implemented in the political systems of three selected African countries, and how this affects constitutionalism and the rule of law.
The Central African Republic (CAR), Senegal and South Africa are selected as case studies, since these countries have gone through different experiences of political parties’ regulations. The fact that the three countries are characterized by different legal traditions constituted an incentive in the selection of the countries. The comparison of countries with different legal traditions would feed into current research and discussion on party constitutionalisation and its impact on constitutionalism. Indeed, based on the French Napoleonic legal tradition, the CAR and Senegal have adopted a civil law system, while South Africa has a hybrid legal system composed of English common law as well as Roman- Dutch legal system. Considering that the civil law system revolves primarily on the codification of statutes, the analysis of constitutional and legal regulations of political parties in the CAR and Senegal will be of primary importance in this thesis. Both countries’ constitutions and statutes will therefore represent the main source of regulation of political parties. In South Africa, by contrast, because of its ‘mixed’ legal tradition, statutes and case laws will be equally important in analyzing the statutes of political parties in the country. The predominant role played by judges in common law systems requires a greater scrutiny of case laws pertaining to political parties in South Africa. Ultimately, the difference between the countries’ legal traditions may impact on constitutionalism. It can be argued that in a common law system, through their decisions, judges will play a key role in protecting the constitutional rights and duties of political parties and promoting constitutionalism. While in civil law systems, as in the CAR and Senegal, existing constitutional and legal provisions will be fundamental in ensuring that political parties’ rights are protected. These three countries’ different legal traditions, political histories and their successful or unsuccessful democratic experiences make them appropriate for selection in this research.

Problem statement

The constitutionalisation of political parties, which started in Europe after World War II when political parties were progressively regulated by European constitutions and recognised as key components of a democratic system, 9 started decades later in Africa. Party constitutionalisation nowadays, as van Biezen points out, portrays parties as an ‘important part of the political and social reality which brings an essential contribution to the functioning of democracy’.

Table of Contents :

• Acronyms and abbreviations
• Abstract
• General Introduction
• Chapter General Introduction
  • 1.1 Background
  • 1.2 Problem statement
  • 1.3 Theoretical framework
    • 1.3.1 The evolving nature of constitutionalism
    • 1.3.2 Framework of analysis for party constitutionalisation
    • 1.3.3 Models of party constitutionalisation
  • 1.4 Research questions
  • 1.5 Aims and objectives
  • 1.6 Significance of the study
  • 1.7 Literature review
  • 1.8 Research methodology
  • 1.9 Organisation of chapters
• Chapter Theoretical framework and evolution of the constitutional status of political parties in Africa
  • 2.1 Introduction
  • 2.2 Constitutionalism and party constitutionalisation
    • 2.2.1 The concept of constitutionalism
    • 2.2.2 Core elements of constitutionalism
    • 2.2.3 Rationale of party constitutionalisation
    • 2.2.4 Models of party constitutionalisation
  • 2.3 The international framework for constitutionalism and its implications
    • 2.3.1 The AU agenda on constitutionalism and good governance
    • 2.3.3 Implications of the international framework
  • 2.4 Party constitutionalisation in Africa
    • 2.4.1 Historical perspective and post-independence period
    • 2.4.2 The constitutionalisation of the one-party system and its
    • implications for constitutionalism
  • 2.5 Post-1990 period: Emerging party systems and possible implications for constitutionalism
    • 2.5.1 The emergence of multi-partyism in the 1990s
    • 2.5.2 Dominant party systems
  • 2.6 Conclusion
• Chapter Legal background and historical evolution of party constitutionalisation in CAR, Senegal and South Africa
  • 3.1 Introduction
  • 3.2 Party constitutionalisation in CAR: historical perspectives
    • 3.2.1 General background
    • 3.2.2 Evolution of constitutional regulation of political parties in CAR
    • 3.2.3 Evolution of legal regulation of political parties in CAR
  • 3.3 Party constitutionalisation in Senegal: historical perspectives
    • 3.3.1 General background
    • 3.3.2 Evolution of constitutional regulation of political parties in Senegal
• • 3.3.3 Evolution of legal regulation of political parties in Senegal
• 3.4 Party constitutionalisation in South Africa
  • 3.4.1 General background
  • 3.4.2 Evolution of constitutional regulation of political parties in South
  • Africa
  • 3.4.3. Evolution of legal regulation of political parties in South Africa
• 3.5 Divergent approaches to party constitutionalisation in the three countrie
• • 3. 6 Conclusion
• Chapter Analysis of current constitutional and legal regulation of political parties in CAR, Senegal and South Africa
  • 4.1 Introduction
  • 4.2 Constitutional and legal regulation of party finance
    • 4.2.1 The constitutional regulation of state funding for political parties in CAR, Senegal and South Africa
    • 4.2.2 The constitutional regulation of private funding to political parties in CAR, Senegal and South Africa
    • 4.2.3 The constitutional regulation of foreign funding of political parties in CAR, Senegal and South Africa
  • 4.3 Constitutional and legal regulation of internal party democracy
    • 4.3.1 The rationale of internal party democracy
    • 4.3.2 Constitutional and legal regulation of internal party democracy in
    • CAR, Senegal and South Africa
  • 4.4 Party constitutionalisation and the role of political parties in elections
    • 4.4.1 Political parties and citizens’ electoral rights
    • 4.4.2 Constitutional and legal regulation of political parties’ electoral rights in the three countries
    • 4.4.3 Party constitutionalisation and citizens’ electoral rights
    • 4.4.4 Gaps and challenges in party constitutionalisation in the three countries
  • 4.5 Conclusion
• Chapter Developing a framework for effective party constitutionalisation
  • 5.1 Introduction
  • 5.2 Party constitutionalisation and the promotion of constitutionalism
    • 5.2.1 Purpose and scope of party constitutionalisation
    • 5.2.2 Party constitutionalisation: prescriptive or permissive regulation
  • 5.3 Towards a sustainable framework for party constitutionalisation
    • 5.3.1 Need for an independent judiciary
    • 5.3.2 Party constitutionalisation and the scope of constitutional review
  • 5.4 Constitutionalisation of mechanisms of transparency and accountability for better implementation of political parties’ constitutional rights and duties
    • 5.4.1 Constitutionalisation of electoral management mechanisms
    • 5.4.2 Constitutionalisation of other accountability institutions
    • 5.5 Constitutionalisation of key principles to promote party
    • constitutionalisation
  • 5.5.1 Constitutionalising the right to vote
  • 5.5.2 Constitutionalising state party funding
  • 5.5.3 Constitutionalising intra-party democracy
  • 5.6 Role of international and regional human rights mechanisms in promoting constitutionalism and party constitutionalisation
  • 5.6.1 International community intervention in promoting party constitutionalisation
  • 5.6.2 Regional and sub-regional intervention in promoting party constitutionalisation
  • 5.7 Role of civil society as advocate of constitutionalism and rule of law
  • 5.8 Conclusion
• Chapter Conclusion and Recommentation
  • 6.1 Introduction
  • 6.2 Key findings
  • 6.3 Recommendations
    • 6.3.1 Need to consider the enactment of laws regulating political parties
• • 6.3.2 Need to ratify and domesticate international and regional human rights instruments
  • 6.3.3 Need to adopt and implement sub-regional human rights standards
• • 6.3. 4 Need for a proactive judicial system to trigger changes
  • 6.3.5 Need for citizens to access constitutional courts directly
  • 6.3.6 Need to build institutional capacity of political parties
  • 6.3.7 Need to study party systems in Africa
• 6.3.8 Need to analyse the link between political parties and electoral systems further
• 6.3.9 Need to develop a comprehensive guideline on private funding of political parties
• 6.4 Concluding remarks
• Bibliography

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