From Democratisation
to Institutional Development

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The aim of this work is twofold. On the one hand, it is to draw up an inventory of institutional development in some countries of French-speaking (Benin, Burkina Faso, Cameroon, Congo, Ivory Coast, Gabon, Guinea, Madagascar, Mali, Mauritania, Niger, the Central African Republic, Senegal, Chad, Togo), Portuguese-speaking (Angola, Cape Verde, Guinea Bissau, Mozambique, São Tome and Principe) and English-speaking (Kenya, Tanzania) Africa, to which we will add one Caribbean State, Haiti. It is also to draw up a list of the various places and sources of information concerning matters of democratic process, political institutions, legislation, justice and jurisprudence, decentralisation and deconcentration, political parties and Trade Unions, human rights and the written press. The task has turned out to be harder than we expected at the outset, due to the necessity of providing a clear definition of the concept of institutional development. Once the concept had been clearly established, the documentary research work came up against difficulties in the conditions or even the absence of information production, frequent withholding practices when the information did in fact exist or State bureaucratic cultures which still very much bear the mark of the verbal tradition. Although we can see in these countries the creation of a multitude of formal institutions, there remains the question of their objectives and purposes, when we take into account the context which is often characterised by the failure to seek compromises between the various political protagonists. In other words, is the idea of developing a State via the law a utopia or a possibility in Africa?

A Movement Linked with the Wave of Democratisation
The Absence of "Made-To-Measure" Institutions
Importation or Hybridisation of Institutions ?
Institutional Development between the Spoken and the Written Word

A Movement Linked with the Wave of Democratisation

For many years, the way in which development is apprehended has been limited to the economic factors of growth. In this way, practically all the other dimensions which contribute to turning development into a “global project for the transformation of society from a political and economic, sociological and cultural, as well as legal point of view” ⁽¹⁾ have been ignored. Interest in the institutional aspect of development in Africa has only appeared recently, with the waves of democratisation.

In March 1990, the European Centre for the Management of Development Policies thus organised a seminar on this theme ⁽²⁾. Some time later, a dossier published in October 1993 presented a list of 270 bibliographical references on the same theme which were available in the database of the Southern Parliaments Documentary Service Organisation Support Programme of the International Assembly of French-Speaking Members of Parliament (AIPLF) and in the databases of the Development Information System IBISCUS ⁽³⁾. For the purpose of this dossier, institutional development was defined as being "the legitimate, pluralist State in the process of being structured in all of its dimensions, be it in terms of public power, of the protagonists of development or of the citizens " ⁽⁴⁾. Could this not also be what Yves Marchand, in his report, called the "institutional conditionality" which enables the creation of a legal environment favourable to private, and notably French initiative in Africa? ⁽⁵⁾ According to our definition, institutional development is instead a dynamic state in the process of structuring different levels of the global society.

In fact, when tackling the subject of institutional development, we note a tendency to restrict the study to its purely formal aspect, that is to say to the creation, or, to be more precise, the production of standards which set the legal rules or the organic structures of the society in question. This is why, in the wake of the transitions to democracy announced as we entered the 90’s, the African States studied in this work launched into a process of production of standards and institutions unrivalled in the course of the last three decades.

At this time, the States equipped themselves with the full legal-institutional arsenal of a modern State. For these countries, it was a question of laying out the political space differently and of installing, via the rules of law, a system of regulation of the political pluralism to which they were committing themselves.

We are dealing here with constitutional regimes which we tend all too easily to "assimilate with the virtuous forms of power" ⁽⁶⁾, which have adopted semi-presidential systems, with a Head of State and a Prime Minister at the controls of the executive, or have turned towards the presidential model, as is the case in Guinea. In Benin, although not provided for in the Constitution, an unofficial post of Prime Minister was created under Nicéphore Soglo, whereas the new President, Mathieu Kérékou, has stayed true to his electoral promise by officially appointing a Prime Minister without making a prior amendment of the fundamental law. In Burkina Faso, the Constitution of 11 June 1991 was revised on 27 January 1997 to allow the Head of State to be re-elected indefinitely, even though another constitutional amendment made in the year 2000 allows him to be re-elected only once. These changes, which are far from being minor modifications, pose the problem of the very existence of these Constitutions, in that the principal political protagonist can take such liberties with the law, without having to negotiate. Without taking a close look at the context, it would be easy to see these events as relics of the years of dictatorship! For this reason, we would be adopting a shortsighted approach if we did not seek to look beyond the purely legal appearance of things.

Among the African States being studied, seven (Angola, Cameroon, Kenya, Mozambique, São Tome and Principe, Guinea Bissau and Tanzania) have not adopted a new Constitution and have simply modified the one that existed before. In some of these countries, the Constitution has been amended for electioneering reasons: in Senegal, the Constitution was amended in April 1991 to re-establish the post of Prime Minister, while in the Ivory Coast, it is an amendment concerning the question of succession that was added.

Recent changes also have in common that they have established national parliaments, generally composed of a single chamber and sometimes of two, as in Burkina Faso, Cameroon and the Congo, etc.

We note an extraordinary production of juxtaposing bodies whose domain of competence varies from one country to another: Supreme Court, Constitutional Court, Court of Appeal, Court of Auditors, High Court of Justice, Council of State, Higher Judiciary Council, Economic and Social Council, Audio-visual High Authority etc. The Central African Republic provides a typical example of the multiplication of judicial bodies, with a total of eight, including a Conflicts Tribunal. This legal armour has not sufficed, however, to prevent the authority of Ange Patassé being shaken by three serious uprisings triggered by the army.

In parallel, in order to correct the Jacobinist aspect of States which, on the whole, have strong centralising tendencies, and to enable the development and the establishment of democracy in the regions, regional development and decentralisation policies have instituted and organised local power on the levels of the region, the district or the town. This has resulted in two types of situation: a first group of countries is in the process of decentralisation, culminating with the partial or total deployment of local authorities, such as in Benin, au Burkina Faso, Cape Verde, Mali, Mauritania, Mozambique and Senegal. A second group has not yet transformed the intentions expressed in their Constitution into concrete reality, as can be seen in Chad and Togo.

One of the most spectacular aspects of the changes underway is, without a doubt, the multiplication of parties which, in each of these countries, take part in the expression of democratic pluralism. Their number varies from about fifteen, as in Senegal, to more than one hundred and twenty in the case of Madagascar. About twenty parties also existed in Niger, before the military coup d’état of 27 January 1996 and the suspension of political activities which can now be resumed as the elections approach ⁽⁷⁾. If we take as our sample the twenty African States concerned by this study, we come up with an overall average of seventy parties per country! Admittedly, in each of the countries, we see only a very limited number of political parties with a sufficiently wide base to appear as inevitable protagonists on the political stage; in fact, the figures are the reflection, above all, of very divided party movements which cannot hide their great structural, ideological and numerical weakness, thus becoming unable to bear real weight or to play a dynamic role in political life. In a country such as Burkina Faso this has led to the grouping together of parties, thus reducing their number to … 40!

The multiplication of party structures has gone hand in hand with the birth and the growth of civil society, the set of structures and associations founded and organised in an autonomous manner in relation to the State, which take "social  initiatives whose aim is not to conquer State power, but to manage survival, on a day by day basis, with a neo-communitarian approach" (8). We can therefore see, side-by-side, socio-professional organisations and associations defending human rights whose impact and dynamics vary from one country to another.

In the written press, we are struck less by pluralism than by the abundance of publications: a mere 40 in Togo due to the soldierly efforts of Eyadéma, 50 in Mali and 130 officially declared in Burkina Faso, although only about thirty actually appear.

These countries have, at least apparently, fitted themselves into the western institutional mould; through this mimesis or replication, they are taking part in a globalisation process which is supposed to increase their ability to intervene in society. The aim is to found institutionally consolidated States whose strength is embodied in the rule of law, in their ability to control their territorial space and to protect the populations by providing regulation of violence and conflicts.

All this supposes that the Leviathan must be tamed, that the State must be constrained by law, all the more so in that "its power is conditioned in legal terms by the notion of law which legitimises it" (9). More fundamentally, this implies that the various political and social protagonists must trust the standards which are produced, thus bringing us back to the social conditions of the production of these same standards.

The Absence of "Made-To Measure" Institutions

We cannot draw up an inventory of institutional development in Africa by merely making a count of laws and institutions. We must also consider " the social production " of law, that is to say the conditions under which it is produced ⁽¹⁰⁾.

If we start out from the principle that the African States are based on a monopoly of physical force and their claim to monopoly on the production of law, a study of the latter point will "reveal, in particular, the weaknesses and, in some cases, the bankruptcy of this enterprise of providing a legal framework for physical force, of imposing a legal order which generalises it " (11). The legal bulimia which can be observed at the moment too often goes hand in hand with "the absence of law, the absence of publication of the legal standards of the State, the fact that these standards are not circulated or applied, the difficulties of litigation and situations in which there is no law... [while] the law itself, in States which are nevertheless considered as being stabilised, seems to be reduced to a mere matter of form, relegated either to being a function of minimal social regulation, or to being an external and internal function of power which has been monopolised by a closed leadership" ⁽¹²⁾.

The African States have borrowed or bought “ready-to-wear” institutional clothing on the international market for legitimate State institutions, without asking the fundamental question of whether they are adapted or can be "indigenised", to use the famous expression of Etienne Le Roy ⁽¹³⁾. All too often, the social protagonists or their representatives are either little involved or totally sidelined in the production of law; the content of African parliamentary debate also remains unknown, as it is not transcribed, published or circulated.

Although we accept, like Jacques Chevallier, that, in a legitimate State, it is the judge who plays the central role in the production and the protection of the law ⁽¹⁴⁾, this is not the case in many African States in which it is neither the legislator nor the judge who produces the law, but rather the executive, as has been shown by Demba Sy with regard to Senegal ⁽¹⁵⁾. To this can be added the absence of doctrine and jurisprudence in most States: there are practically no legal journals, thus inciting the judge, in Togo and elsewhere, to base the judgement rendered on French jurisprudence rather than on that of his peers in Togo – about which he knows nothing – for it is rarely written down. However, the African countries have seen the development of essentially administrative jurisprudence, produced by the Appeal Courts (16).