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Chapter 1 Toward an Inclusive Theory of Constitutionalism Available evidence regarding the constitutional experiences of most African countries indicates repeated failure or at least a protracted crisis. I will argue in this book that these experiences can and should be seen as part of processes of incremental success. As explained later, the notion of incremental success indicates the accumulation of experiences that are conducive to better and more sustainable implementation of the principles , institutions and mechanisms of constitutionalism over time, even though some experiences may be negative in the short term. A critical question to be addressed at subsequent stages of my analysis is how to assess or evaluate any constitutional experience. The point to emphasize from the outset is that rejecting the application of a single standard of success or failure of these experiences everywhere does not mean that there are no standards at all. Rather, it is a matter of clarification and application of appropriate standards to each case in its own context. The deliberately optimistic and positive reading I am proposing is necessary, in my view, for developing ways of enhancing and consolidating constitutional governance in these countries. That is, the apparent constitutional failures and serious setbacks of constitutionalism in various African countries are to be expected as integral to the necessary or unavoidable processes of adaptation and indigenization of this concept and its general principles and institutions. However, the success of this process of adaptation and indigenization should not be expected to happen as a matter of course over time. A sober and critical analysis of the experiences of each African country in light of a clearer understanding of the meaning and implications of constitutionalism is necessary for the development and implementation of practical strategies for the promotion of constitutional governance in that country. Thus, a deeply contextual approach is necessary for understanding and appreciating the contributions of African societies to the concept and principles of constitutional governance, which might be called "African constitutionalism ." This does not mean that African constitutionalism as such is inherently different or distinguishable from other experiences. The term 2 Chapter 1 is used to emphasize that the experiences of various countries in one part of the world should not be judged by criteria that are specific to another country or region. I am focusing here on the development of this approach to African countries because their experiences are often dismissed as necessarily negative or unworthy of serious consideration as legitimate contributions to the principles of constitutionalism and their implementation. The thesis and analysis presented in this book are premised on a strong belief in the desirability and practical possibility of promoting constitutionalism in African countries. This premise concedes that the most significant development of this concept is closely associated with European notions of the nation-state and its relation to the actual civil society that existed in the historical context of those societies which are difficult to apply in most African countries today. From this perspective, I prefer to use the term "territorial state" instead of "nation state" in referring to the postcolonial state in Africa, The notion of "nation" on which European models of the state are premised tend to assume or presuppose that it consists of a single homogeneous ethnic group (Smith 1991, 2000). In this sense, individual African "tribes" as they existed before colonialism might qualify as "nations," but colonial boundaries often arbitrarily passed through such nations, or simply subsumed them under a broader, African "nation" state. In other words, African states were "granted" juridical sovereignty over their respective territories, as determined by colonial administrations, while their populations did not constitute "nations" in the European sense of the term. It is important to bear this commonly noted point here because of its implications for the possibilities of the sort of shared political culture and consensus that underlie "national" constitutional theory and practice in the European countries where these ideas became better established over the course of the last three centuries. Such tensions in the recent history and current situation in almost all African countries should not be taken to diminish the paramount importance of constitutionalism as a necessary framework for protecting national sovereignty while respecting the human dignity and rights of all persons and communities or groups. On the contrary, such tensions emphasize the importance and relevance of constitutionalism in postcolonial states in Africa, An affirmative and positive approach to constitutionalism is particularly necessary in the present climate of persistent and profound skepticism about human rights and democracy...

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