The Constitutional Transitions in the Horn of Africa: Problematic Balancing among Traditional, Religious, and Liberal Values

Introduction

Western constitutionalists have delineated four constitutional stages, in order to study the historical and legal evolution of the so-called "Third World states" or "developing countries." Many African states are included among these countries, and this is closely related to the experience of colonialism, at least up to the end of World War II. After the colonial period, almost all the African countries alternated periods of democracy with periods of autocratic involution. They experimented, on the one hand, with forms of government characterized by the principle of the separation of powers and democratic participation (sometimes under the control of the bureaucratic elite inherited from the colonial period) and, on the other hand, with forms of political power concentrated in the hands of a charismatic, military, or one-party leader. In these systems, constitutional guarantees were often suspended.

At present, under the pressure of endogenous and external factors, nearly all the African countries have adopted a model that basically derives from that of liberal democracies, at least from a formal point of view. However, to define more recent constitutional developments as a revival of the "independence" constitutions would be superficial and anachronistic. Various aspects of these constitutions (that is, not just formal elements) demonstrate that the present situation is quite different from that in previous stages, and is characterized by the tendency to strengthen both the executive power and the tie with various traditional African institutions or with the Islamic religion. For that reason, it is appropriate to identify an autonomous stage, the so-called "fourth constitutional stage."¹

The democratic transition in the countries of the Horn of Africa² cannot be studied from a constitutional standpoint without considering the constitution drafting and the contents of the constitutions that are in force and the transitional constitutions. Nevertheless, the extensive imitation of the liberal model, the ambiguities and contradictions in the discipline of various institutions, on the one hand, underline the imbalance between the formal constitutional guarantees and their implementation. On the other hand, these ambiguities support the thesis according to which the democratization process has not concluded yet in many of the countries of the Horn, or rather that the liberal categories—in spite of their formal imitation, especially after the collapse of the socialist ideology and its accompanying model—are not automatically transferable into African societies, where traditional cultural and religious values still exist.

Moreover, the lack of constitutional stability in the Horn of Africa is closely connected to the inadequate level of economic growth, to the unsolved questions of national border settlement,³ to ethnic conflicts, and to an incomplete common political awareness, all factors that the end of the contrast between the American and Soviet blocs, in the last decade of the twentieth century, has not been able to affect in a decisive way. In fact, although the end of the Cold War contributed to the fall of Siad Barre's and Mengistu's regimes, in Somalia and Ethiopia respectively, it did not allow the establishment of a climate of greater social stability; it rather fed civil wars and new ethnic, religious, and economic fragmentations, which resulted, in the absence of a democratic legitimation of the local powers, in renewed threats to the security of populations and violations of human rights. In a few words, the social, political, economic, and constitutional situation is not set and steady yet, and for these reasons, the Horn of Africa can still be considered a permanent emergency area.⁴

Constitution Drafting and the Transitional-Constitutional Regimes

Constitution drafting in Ethiopia, Eritrea, and Somalia has been characterized by several common aspects, also shared by other constitutional processes in the rest of the continent, such as experimentation—not yet finished in some cases—with transitional constitutional regimes and popular participation in the approval of the constitutional texts. In 1991, in Ethiopia, after the dictator Mengistu's escape, a national political conference adopted a transitional charter and a transitional government was constituted to last until the approval of the 1994 constitution;⁵ in Eritrea, the transitional process (1993–1996...