Malcolm Rivera
The role of the media in African constitutions has evolved significantly in recent decades, with a shift from imported constitutions to those made within Africa. The media, alongside pressure groups, civil society, and the military, wields substantial influence in the political arena. While subject to constitutional regulations, the media plays a pivotal role in shaping political discourse and public opinion. African constitutions, such as those of Cameroon and Kenya, increasingly recognise and protect human rights, drawing influence from international human rights instruments like the UDHR and the African Charter on Human and Peoples' Rights. The interpretation and enforcement of these rights by the judiciary are crucial to safeguarding freedoms and ensuring democratic transitions.
| Characteristics | Values |
|---|---|
| Media enshrined in African constitutions | Pressure groups, civil society, and the powerful military establishment are all subject to the constitution. |
| Freedom and independence of the media | The right to privacy and freedom of speech are protected by the Constitution of Ghana. |
| Restrictions on citizens' freedom | Banning demonstrations, sit-ins, and assemblies, as well as violating civil and political rights by prohibiting the formation of parties or dissolving existing ones. |
| Influence of international human rights instruments | The Cameroonian constitution of 1996 affirms its attachment to the fundamental freedoms in the UDHR, the UN Charter, and the African Charter on Human and Peoples' Rights. |
| Constitutional provisions for human rights | The Kenyan constitution states that "the general rules of international law shall form part of the law of Kenya." |
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What You'll Learn
The influence of international human rights instruments
The ACHPR, which came into force on 21 October 1986, specifically protects human rights and fundamental freedoms in Africa, including freedom of expression in Article 9. This has had a direct impact on media freedom in Africa, as it provides a legal framework for protecting journalists and media organisations from censorship and repression.
Additionally, some African constitutions explicitly affirm their attachment to international human rights instruments. For example, the Cameroonian Constitution of 1996 expresses its commitment to the fundamental freedoms enshrined in the UDHR, the UN Charter, the ACHPR, and all duly ratified international conventions related to human rights. Similarly, the Kenyan Constitution states that "the general rules of international law shall form part of the law of Kenya".
Furthermore, the third wave of democratisation that swept through Africa from the 1990s has transformed the nature of constitution-building on the continent. Constitutions are no longer merely instruments to limit governmental power but are increasingly becoming tools for individuals and communities to liberate themselves and expand their personal and collective goals. This shift towards self-determination and democratisation has had a significant impact on media freedom in Africa, as it creates an environment where the media can play a more active and critical role in society.
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The role of the media in African constitutions
The media is recognised as a significant player in the political landscape, alongside pressure groups, civil society, and the military. While these entities are subject to the constitution, they also have an impact on political life and the interpretation of constitutional rights. For example, the Kenyan constitution states that 'the general rules of international law shall form part of the law of Kenya', which demonstrates the influence of international human rights instruments on African constitutions.
The constitutions of individual African countries provide insight into the role of the media within their specific contexts. For instance, the Constitution of Ghana addresses the right to privacy and the freedom and independence of the media. In contrast, the Ethiopian constitution faces an uncertain future, according to an article in the Journal of African Law.
Historically, many African countries experienced single-party rule, which restricted political parties' roles and deprived them of funding and media visibility. This had a direct impact on power dynamics and governance. The criminalisation of single-party rule, as seen in the 2006 Constitution of the Democratic Republic of the Congo, is a notable development in this regard.
Overall, the role of the media in African constitutions is multifaceted and evolving. While the media is subject to constitutional regulations, it also influences political life and the interpretation of rights. The move towards homegrown constitutions, influenced by international human rights standards, has shaped the modern role of the media in Africa's political landscape.
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The move away from imported constitutions
The first generation of African constitutions, crafted by the colonial powers of Belgium, Britain, and France, served as a basis for the transfer of power from colonialists to national elites who had led the struggle for independence in the 1950s and 1960s. These constitutions introduced European liberal democracy and constitutionalism, with features such as the diffusion of powers, checks and balances, limited government, and the protection of individual and minority rights. However, they were imposed on the African countries with limited consultation with emerging African political leaders and little to no involvement of ordinary Africans. As a result, they were perceived as illegitimate and bore little reflection of the will of the people or the political realities of the continent.
In the post-colonial period, the colonial authoritarian system persisted, and the interests of the former colonial powers and white settlers remained well-protected. The shallow foundations of Western liberal democratic values in these constitutions failed to prevent the prolongation of this system. Additionally, the individualistic approach to human rights, influenced by nineteenth-century liberal constitutionalism, was often perceived as too Western from an African perspective, neglecting the predominantly communitarian approach found in traditional socio-legal systems across the continent.
The "third wave of democratization" in the 1990s brought about a significant change, unleashing a fever of constitution-building across Africa. This wave transformed constitutions into tools for Africans to liberate themselves and expand their ability to achieve personal and collective goals. Constitutions are no longer merely instruments to regulate and limit governmental power but have become essential foundations for modernization and political reconstruction. This shift marks a move away from imported or imposed constitutions towards constitutions made within Africa, raising questions about the emerging African constitutional genre.
The current wave of constitutional development is an important step towards the "Africanization" of post-colonial constitutions. It emphasizes the focus on marginalized communities and the development of an African approach to minority rights, better suited to the continent's context. This approach aims to ensure that the most marginalized remain within the state, promoting national unity and peaceful coexistence among disparate groups. Additionally, the influence of international human rights instruments and standards, such as the Universal Declaration of Human Rights (UDHR) and the African Charter on Human and Peoples' Rights (ACHPR), is evident in modern African constitutions, further shaping their content and direction.
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The restriction of political parties
The evolution of modern African constitutions has been remarkable, with a shift from imported or imposed constitutions to those made within Africa. Constitutions are no longer just instruments that regulate and limit the exercise of governmental power but are becoming tools that Africans can use to liberate themselves and expand their ability to achieve personal and collective goals.
Senegal is an example of a country that has restricted political parties through its constitution. From 1963 to 2001, Senegal's constitution was changed several times to align with the government's political vision. In 1976, Article 3 of the Constitution was amended to authorise only three political parties, representing different currents of thought. In 1978, the Constitution was amended again to establish a four-party system and list the four authorised types of party ideologies. This system of controlled multi-partyism restricted the activities of political parties while officially adhering to the principle of constitutional democracy and political pluralism.
In 2018, the Senegalese government amended the Electoral Code to restrict the requirements for becoming a presidential candidate, citing the need to prevent political anarchy. However, this contradicted the African Court's judgment in the Mtikila case, which recognised all citizens' right to political participation.
Another way to limit government influence is to reduce the powers of leadership and control state resources through oversight bodies. Matters of budgeting and legislation fall under parliamentary competence, enabling popular representation free from political influences.
South Africa's Political Party Funding Act, enacted in 2019, regulates the funding of political parties, including from private donors. The Act generally bars political parties from accepting foreign donations, with some exceptions for specific purposes, such as training and policy development.
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The judiciary as a guardian of rights and freedoms
The judiciary plays a fundamental role in society as the guardian of rights and freedoms. It is responsible for interpreting the law and ensuring its application, thereby resolving conflicts and protecting the rights of individuals. Through bodies like the Constitutional Council, the judiciary ensures that new legislation complies with the democratic principles enshrined in the Constitution, safeguarding citizens' rights from potential government infringement. This function is vital in maintaining the balance of powers and respecting rights, especially in the context of the separation of powers between the executive, legislative, and judicial branches of government.
In Africa, the judiciary's role as a guardian of rights and freedoms is particularly crucial given the historical context of the continent's constitutional development. Since the "third wave of democratization" in the 1990s, constitution-building has become an essential foundation for modernization and political reconstruction in Africa. African constitutions today reflect a move away from imported or imposed constitutions towards those made within the continent. This has resulted in a more significant influence of international human rights instruments and standards, such as the Universal Declaration of Human Rights (UDHR) and the African Charter on Human and Peoples' Rights (ACHPR).
However, the judiciary in many African countries faces challenges in fulfilling its role as a guardian of rights and freedoms due to executive interference and a lack of independence. While most African constitutions mandate the chief justice to lead the judiciary, in practice, the power lies with the justice minister and attorney general, who are often members of the executive. This dynamic has led to the politicization and co-option of courts, with executives influencing judicial appointments, budgets, and even the types of cases heard. As a result, courts can become instruments of regime capture, entrenching impunity and threatening democratic checks and balances.
Despite these challenges, there are notable exceptions where the judiciary has successfully asserted its independence. In South Africa, for example, the power to appoint judges is ceremonial as the candidates are screened and nominated by the Judicial Service Commission, with the president unable to make appointments outside these nominations. Civil society organizations have also played an active role in supporting judicial independence, as evidenced by the successful lobbying of the African Commission on Human and People's Rights to appoint a Focal Point on Judicial Independence in Africa.
Overall, the judiciary in Africa continues to strive for independence and uphold its role as the guardian of rights and freedoms. By interpreting and applying the law impartially, addressing disputes, and sanctioning violations, the judiciary plays a decisive role in preserving justice and social tranquility, ensuring that the rights and freedoms of citizens are protected and respected.
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Frequently asked questions
African constitutions have historically been wholly imported or imposed, but there has been a move towards constitutions made within Africa. The content of these constitutions is influenced by the will of the people, the system of governance, and the political realities of the continent.
The media is one of the groups that enjoy substantial influence in the political arena, alongside pressure groups, civil society, and the military establishment. While these groups are subject to the constitution, they have a significant impact on political life.
African constitutions are expected to regulate political life and aim to govern the relationship between the governing and the governed. They also aim to establish a democratic society, protect human rights, and provide for the improvement of citizens' quality of life.
