One of the most problematic legacies inherited from the colonial powers, which the 1990 reforms failed to deal with or, in many instances only did so symbolically, is preventing the presidency from becoming too powerful, domineering and overbearing. Most constitutions, even in advanced democracies such as the US and France, make the president the sole repository of executive power to ensure that there is no confusion as to who bears ultimate responsibility for executive decisions. It is no surprise that some scholars have described the office as a “separate branch.” However, whilst in those advanced democracies, there are strong checks and balances reinforced by history, culture, custom, and tradition of constitutionalism and respect for the rule of law, which ensures that it does not overshadow and dominate the other branches of government, these inherent checks developed over centuries of practice are missing in Africa. With no history or long practice of constitutionalism to back the Constitution, the written text remains the basis for any form of control that needs to be exercised to check the abuse of the enormous powers that these constitutions confer on presidents. The description of this as imperial powers is probably more accurate of the situation under these constitutions not only because of the scope of express and implicit powers, but also the fact that African presidents often arrogate even more power to themselves. They rule and reign supreme directly or indirectly through other members of the executive branch and the ruling party which they control, and sometimes, even express disdain for the Constitution. This is manifested in diverse ways both by the constitutional texts and the mode of governance.
Limiting the frequent and arbitrary constitutional changes that were so common prior to the 1990s appears to have been on the minds of the constitutional reformers. Almost all African constitutions have now placed restrictions on the process of amending constitutions ostensibly to prevent presidents from making changes that will perpetuate their stay in power. A good number requires that constitutional amendments should be approved in parliament by a special majority of two-thirds or three quarters or that failing such a majority, the proposed amendment be put to a referendum. In some constitutions, amendments must not only get the approval of a special parliamentary majority but must also be submitted to a referendum. In spite of these constitutionally entrenched checks, one of the hallmarks of the 1990s constitutional rights revolution – constitutional provisions imposing term limits on the tenure of presidents – have rapidly and easily been removed in many countries facilitating the emergence life presidencies or “monarchies” such as in Cameroon, Equatorial Guinea, Gabon, Togo, and Uganda. It is therefore an irony that, in spite of two decades of democratisation, Africa remains the least democratised region with some of the oldest and longest-serving leaders in the world.
The exorbitant presidential powers that have provided the foundation for the “Big Man” syndrome that pervades the African political landscape is often reinforced by the attempts to shield African leaders from legal liability in constitutional immunities provisions. In some cases, presidential accountability is further limited by impeachment provisions in the Constitution. We shall now see how this further entrenches presidential dominance impunity.
