By Prof Kivutha Kibwana
This essay is, first and foremost, a critique of one aspect of Professor J.B. Ojwang’s theorizing on the nature and scope of executive power in the African one-party state. Put in a nutshell, Ojwang argues the chief executive in Africa’s single regime possesses extra-juridical power derivable from non-constitutional and non-legal sources. Such argument, we think, not only lends ideological support to besieged authoritarianism, but it also boldly contradicts the refreshing research and writing on constitutional development in Africa, hence our interest in Ojwang’s unique constitutional ideas. Simultaneously with the above concern of criticising Ojwang’s work, we shall, in passing outline the limits of executive power in the African context.
Ojwang’s definition of extra-juridical power
Ojwang, in his doctoral work undertaken at Cambridge and subsequently published as a series of articles, argued, inter alia, that unlike in the advanced Western States, the Chief Executive in the African one-party state derives power not only from constitutional and regular laws and conventions but also but that the Chief Executive derives legitimate and legal power extra-juridically. In a nutshell, this is Ojwang’s coinage and popularisation of the concept of the extra-juridical power of the executive authority.
The sources of such extra-legal power, according to the judge, are located in the executive authority’s possession of charisma and headship of the sole political party. Because the Chief Executive is endorsed with charisma and/or is the leader of a single party, Ojwang argues, the Chief Executive has extra-legal powers – that is, powers not derived from the constitution or any law passed by Parliament or constitutional convention, to justify his or her actions.
Simply rendered, Ojwang’s argument is that the President’s legal and legitimate action in the African one-party state is predicated upon constitutional and legal premises on the one hand and non-legal criteria on the other. Once cast in these terms, Ojwang’s argument dismally fails to correctly identify and appraise Africa’s present constitutional and governance crisis whose causes and symptoms were /are, inter alia... the singularly authoritarian legacy of the colonial era; patrimonialisation of power which occurred throughout the continent; the political monopolies under single party or military auspices (or both) which swiftly became the predominant political formula; the ossification of authority under life presidents who reproduce their own power or cause endemic instability when they do not; and the growing disaffection and withdrawal of civil society, culminating in a widespread sense of “failure of the African state.”
The general perception held that the political class had monopolised power and largely privatized the public realm, yielding a “bed-ridden” state route to comatose status.
Precisely because of the above-alluded to mischaracterization – consciously or unconsciously – of the constitutional and governance crisis, Ojwang deprives himself of the intellectual vision necessary for contributing to the solution of crisis. Recently such vision has been neatly articulated thus:
State-society relations now stand at a crossroads in Africa. The post-colonial trend to expand political control has peaked, with economic crisis for the state to retreat from ambitious commitments. And precisely because state control of society in Africa has been tentative at best, the retreat of the state will willy-nilly create an enlarged political space within which associational life can occur. Under these conditions, groups within civil society will enjoy opportunities to attract a following, develop a bureaucratic form, and formulate policy alternatives.
Examination of Ojwang’s argument
A non-lawyer will no doubt be perplexed by how extra-juridical power can be legitimate and legal. In our estimation, it would strike such a non-legal person that the best advice a constitutional lawyer should give to a chief executive who wants to exercise power in legal fashion anywhere in the world is simply to ensure a law exists or is passed by parliament authorizing any act the executive wants to perform. Indeed, because Julius K. Nyerere of Tanzania favoured such strategy, many executive-minded laws were passed in Tanzania until Nyerere himself lamented: “I have sufficient power under the law be a dictator.”
Further, it must also be remembered that in Nazi Germany, Hitler strove to ensure that most activities he undertook were based on and sanctioned by some legal enactment even if the law was kept secret after being duly passed. Hence many of the constitutional lawyers who advised the executive were very emphatic on predicating governmental action on some law. This explains why those tried of war crimes at Nuremberg flowing activities in the Nazi government ceaselessly racked the brains of eminent lawyers who presided over those trials because the accused’s defence, at first, appeared formidable – the accused persons argued they were doing what they were on trial for at the command of both the executive and duly passed laws. Certainly, if such officers argued that their activities were justified because they prized by the executive while acting extra-juridically, such officers would have been extremely vulnerable.
We saw that Nyerere was arguing against legal over-concentration of executive power. Recently, constitutional lawyers and political scientists in Africa have decried such over-concentration of executive power. Such constitutionalists prefer and have argued for a scaling down of legally sanctioned powers of the executive so that an acceptable balance in the exercise of power amongst the three organs of government can be achieved. If that happened, then the doctrine of separation of powers and democracy in general receive a boost.
It is surprising that whereas constitutionalists in Africa are popularizing the notion of limited executive power and emphasizing existence /nurturing of separation of powers, Ojwang seems to be popularizing a counter view which potentially gives the executive branch in Africa open-ended power.
If we defer to Ojwang’s formulation of legitimate exercise of executive extra-juridical power, his concept could be used as a reliable ally to bolster dictatorship
Perhaps one of the most problematic aspects of Ojwang’s concept …
…To continue reading this article please get a copy of The Nairobi Law Monthly May 2019 issue. Copies are available at your local supermarket or you can make a direct purchase through 0715061658 . Delivery is free within the CBD.