This seems a particularly appropriate time to devote a double issue of the Journal to one topic—constitutional law. Throughout sub-Saharan Africa, there is blowing a wind of political change comparable with that identified by British Prime Minister Harold Macmillan in his famous speech to the South African parliament in Cape Town on 3 February, 1960. The source of that wind was African national consciousness which was impelling the process of decolonisation: in that year, 1960, most of the francophone African states discussed by Reyntjens and Nigeria became independent. By 1968, the process was complete except for Angola, Mozambique, Namibia and Zimbabwe. All the new states were endowed with shiny new democratic constitutions, a “Gaullist” or Westminster” legacy from the departing colonial masters.

Decolonization in Africa brought political independence to former colonies but it did not, as a rule, change the underlying social and economic structures of their societies. It passed political power to groups which had only a weak base in the economy (which was dominated by multinational capital, immigrant communities or traditional elites) and a limited stake in the prevailing social systems. It was obvious that in these circumstances political power would be used to bring about fundamental changes in economic and social structures. This tendency was reinforced by popular demands for greater social justice and economic opportunities. Anti-colonial struggles were inspired by a longing for greater human dignity and improved standards of living. Thus development inscribed itself large on the agenda for the future. This raised the question of the modalities for change. More and improved systems of education, agricultural reform, incentives for industrialization and enhanced administrative capacity would be necessary. However, it was an underlying assumption that all these changes would be affected within the framework of the constitution and the law. There were various reasons for this assumption. Despite its authoritarianism, the colonial state was a legally constituted and administered state. The metropolitan notions of legality underlay strategies for decolonization. The more complex the problems of ethnicity, especially the protection of the interests of the settlers, or of the balance between the traditional and new elites, the greater was the reliance on the law as a means of both providing the framework for and controlling public power.

All revolutions are impossible until they happen; then they become inevitable. South Africa has for long been trembling between the impossible and the inevitable, and it is in this singularly unstable situation that the question of human rights and the basics of government in post-apartheid society demands attention.

No longer is it necessary to spend much time analysing schemes to modernize, reform liberalize, privatize, or even democratize apartheid. Like slavery and colonialism, apartheid is regarded as irremediably bad. There cannot be good apartheid, or degrees of acceptable apartheid. The only questions are how to end the system as rapidly as possible and how to ensure that the new society which replaces it lives up to the ideals of the South African people and the world community. More specifically, at the constitutional level, the issue is no longer whether to have democracy and equal rights, but how fully to achieve these principles and how to ensure that within the overall democratic scheme, the cultural diversity of the country is accommodated and the individual rights of citizens respected.

“Never in my lifetime”: it has always been a risky sentence for political leaders, as the former Rhodesian Prime Minister Ian Smith knows only too well. The astonishingly rapid evolution in Africa today has made the phrase sound almost suicidal. Zaire's President Mobutu, for instance, claimed at the beginning of 1990 that “never in my lifetime will there be multi-partyism in Zaire”; after he was forced to announce the lifting of all restrictions on 9 October of the same year, more than 100 political parties had become active by the beginning of 1991 and Mobutu's own prospects for political survival now seem increasingly slim. He is just one of the many heads of state in French-speaking Africa who have been forced into performing a drastic U-turn during 1990.

Both single party rule and socialism have come under increasing strain over the last year. In Francophone Africa in particular, virtually no country has been untouched by the wave of political reform. A combination of factors accounts for this spectacular evolution.

Namibia finally achieved independence on 21 March, 1990, after a long struggle and many false hopes and setbacks. In a nutshell: the territory was colonized by Germany. It was seized by South African forces during the First World War, and then made the subject of a League of Nations Mandate, administered by South Africa, after the war. Following the Second World War, South Africa tried to incorporate the territory, a move resisted by the United Nations. In 1966 the International Court of Justice denied standing to Ethiopia and Liberia to allege breaches of the mandate. However, shortly thereafter the UN voted to terminate the mandate. At about the same time the South West African People's Organization (SWAPO) launched its armed struggle. South Africa's response to these developments was to implement plans for the closer integration of the territory into the South African state, and into the system of apartheid. As a result, a system of native authorities, based on ethnicity, was introduced.

In 1975 the “Turnhalle” talks were started which, although rejected by most of the black groups, led to the establishment of a constituent Assembly. During the same period, a “Contract Group” of Western Nations began to negotiate with South Africa over a settlement for Namibia. The ultimate proposals were accepted by the UN, SWAPO and South Africa, and the plans were recognized by UN Resolution 435. But immediately thereafter problems began to arise, and talks about implementation stopped and started for a number of years.

On 18 April, 1991, the Republic of Zimbabwe celebrated its 11th year of independence. Coincidentally, just a few months earlier, the 11th constitutional amendment Act was passed. This flurry of legislative activity was the result of a desire on the part of the government to develop a new constitutional structure rather than to remain with the constitution which was essentially imposed upon it by the British during the 1979 Lancaster House conference which eventually led to independence in 1980. The new constitutional model is of considerable interest as it is based upon those operating in many other African nations but, according to the Minister of Justice, is designed to provide safeguards on the exercise of presidential power and to avoid unnecessary conflict and division between the various branches of government. On several occasions, ministers have stressed the autochthonous nature of the new structure and some have indeed suggested that it might form a model for other African countries.

It is the intention of this article to examine the legitimacy of these assertions by analysing both the new constitutional structure and its operation in practice. In order to assess the significance of these changes, it is first necessary to examine very briefly the Lancaster House constitution and constitutional developments in the early years of independence.

Constitutions remain a puzzle. They are not conscious falsehoods, yet they are clearly not in any simple sense “true”. Nor are they a matter of self-deception on the part of their drafters, being as much intentionally aspirational or programmatic as regulatory. There is some virtue in Finer's characterization of them as “autobiographical” but even this becomes problematic when we speak of constitutions in the ex-colonial world which are often documents more easily made sense of in the context of other constitutional documents than the realities of the polities they supposedly regulate. All these issues are brought into very sharp focus by the experience of a country such as Mozambique, which in its short history since independence in 1975 has adopted two quite different societal projects in the form (amongst other things) of constitutional documents. The differences between these two projects are obvious and are commented on extensively in what follows. The categories utilized in both, it may be noted, are rooted entirely in European political and intellectual experience and, arguably, what is striking about the liberal and socialist options that they embody is not so much their (highly advertized) differences but what they have in common, including a profound intolerance and a determination to remake the world in their own image. Seen in this way the study of constitutions and constitution-making have interesting things to tell us about the processes of Westernization of our world.

Mozambique's new constitution came into force on 30 November, 1990, replacing the Independence Constitution of 25 June, 1975. It eliminated the leading role of the Frelimo party, introduced multi-party politics, and changed the official name of the country from the People's Republic of Mozambique to the Republic of Mozambique.

The Bill of Rights is a novelty in Tanzania. As is well-known, Tanzanian Constitutions from independence to 1984 did not contain a bill of rights. Partly for this reason, legal discourse, whether in teaching or in practice, did not centre on rights issues particularly in the relationship between the state and citizen. At the Faculty of Law, University of Dar es Salaam, there developed an approach to teaching which the university calendar refers to as “the historical, socio-economic” method. The socioeconomic method emerged in contrast to the “law and development” approach which was a manifestation of the modernization theory on the legal plane. Neither of these revolved around the question of rights. Put rhetorically, “law and development” saw law essentially as an instrument of social change while the “socio-economic method” regarded law as an instrument of the ruling class. This may be a little over-simplified, but I believe broadly represents the main points of departure of, and contention between, the two schools—at least at that time at the Dar es Salaam Faculty.

On 19 April, 1990, 12 delegates from autonomous staff associations of six institutions of higher education in Tanzania adopted the Dar es Salaam Declaration on Academic Freedom and Social Responsibility of Academics. The inaugural workshop was also attended by representatives from some eight other institutions of higher education who do not as yet have staff associations. A student representative from the proposed autonomous students' union of the University of Dar es Salaam was also invited. They all attended as observers who participated fully in the deliberations of the workshop although they did not have a right to vote.

In terms of article 51, the Declaration has now come into force as it has been ratified by the membership of two-thirds of the staff associations attending the inaugural workshop. Following the formal launch of the Declaration in July 1991, the next step will be for the staff associations to pressurize the respective administrations at their institutions to accord the Declaration formal recognition. Eventually, the Government itself will be approached to accord the Declaration political acceptance.

On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”

The 1979 Constitution of Nigeria was widely acclaimed as a boldly innovative attempt to introduce structures for democratic government which were new to the Commonwealth. These included the adoption of an American-style separation of legislative and executive powers, albeit with many distinctive elements, to replace the “Westminster model” which had been so productive of tension and conflict at both federal and regional levels under the Independence Constitution of 1960 and the Constitution of the First Republic (1963–66). The executive presidency also represented continuity with the realities of military government (1966–79). Although that transition from the Whitehall to the White House model in the Second Republic (1979–83) proved a short-lived experiment, the problems which precipitated the military coup of 31 December, 1983, or were cited as justifying it, were not attributed to defects in the basic constitutional structures but rather to the ways in which they had been operated by the politicians elected to office—many of whom, as survivors from the previous political era, were more familiar with “Westminster” than “Washington” Now a new generation of constitution-makers has affirmed, on behalf of the nation, its confidence in the basic scheme adopted in 1979: indeed, the new Constitution, enacted in 1989 for implementation in 1992, closely reproduces the structure and most of the detailed provisions of the 1979 Constitution; yet such similarity belies fundamental changes in the political system now in process of restoration.

In a recent analysis of the constitutional position of Parliamentary Private Secretaries (P.P.S.s) in the United Kingdom Professor Norton concludes that they “occupy an important twilight zone between ministers and backbenchers. Though remaining among the latter, they assume certain characteristics of the former.” Mauritius, which like many Commonwealth countries has a constitutional regime largely inspired by the British model, has recently created an innovative role for P.P.S.s who operate at sub-ministerial level but are not unpaid helpers to ministers as in the U.K. It is the intention of this article to critically examine this role.

The Mauritian Constitution originally provided for a Cabinet consisting of the Prime Minister and up to 14 ministers who were all members of the Legislative Assembly, except for the Attorney-General. Under section 66 of the Constitution, the Governor General acting in accordance with the advice of the Prime Minister could appoint up to five Parliamentary Secretaries from among members of the Assembly “to assist Ministers in the performance of their duties”. Following the formation of a coalition government in 1969, the Constitution was amended so as to increase the number of Ministers to 20 and that of Parliamentary Secretaries to ten with Mauritius having a unicameral legislative assembly of 62 elected members and up to eight nominated members, the 1969 amendments enabled almost every other elected member to be appointed a Cabinet minister or Parliamentary Secretary.

The legality of judicial corporal punishment is an issue which has caused considerable disagreement amongst jurists, legislators and criminal justice personnel, for its use has serious moral, constitutional and penological implications. In Zimbabwe, two decisions handed down by the Supreme Court together with a later constitutional amendment Act have highlighted the divergence of views on this matter. It is thus the intention of this article to examine critically the issue from a constitutional and penological perspective.

In 1987 in S v. Ncube a full bench of the Supreme Court of Zimbabwe unanimously held that the sentence of whipping for adults contravened section 15(1) of the Declaration of Rights which is contained in the Constitution of Zimbabwe in that it constituted a punishment which in its very nature was both inhuman and degrading. In his seminal judgment, Gubbay, J. A., had regard to four factors, namely: (i) the current trend of thinking amongst distinguished jurists and leading academics; (ii) the abolition of whipping in many countries of the world as being repugnant to the consciences of civilized men; (iii) the progressive move of the courts in countries in which whipping is not susceptible to constitutional attack to restrict its imposition to instances where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in Zimbabwe, especially over the previous ten years and the declining number of laws on the statute book in which it remained a permissible penalty.