Constitution And Continuity

Let us begin by demystifying constitutionalism. Even the so-called brutes have a constitution; it is unwritten, but it is very clearly understood among the species. Yet, even the earlier part of that claim is increasingly open to dispute.

We now have evidence of genetic imprint among all living species, and so even if we have no document available to us about the constitutions of peacocks, baboons, or bush fowl, any intelligent observer of these species would note that there is some kind of system, or codes of cohabitation that regulate the conduct and relations between individuals and groups within the communities of bees, ants, geese or fishes. It was in my student days, I recall, that the theory of the existence of an animal 'territorial imperative' came into vogue. Until then, humanoids who observed dogs walking round a constant perimeter before curling themselves into a ball for a quick snooze, thought that these animals simply found it relaxing to wind down with a circular stroll before their siesta. Only some time in the earlier part of the second half of this century was it discovered or at least proposed - that what these hounds were doing was staking out their own
territory, which would thereafter be respected by others, on pain of a bloody tussle.

We, humanoids, however, persuade ourselves, with some justification, of having transcended the constitutional monologue of the leader of a pack of gorillas, which beats its chest to announce to interlopers the existence of its own territory, its own laws, its own foraging and existential strategies for the family or herd under its protection. We flatter ourselves that we have advanced beyond the organisation of the honey-bee, which is centred on the so-called drone, the hub of life in the complex network of responsibilities - provisioning, breeding, Soldiering. etc. - of the bee-hive. Who knows, maybe it was the near- magical organisation of the bee-hive that first inspired that often distorted principle of the communist utopia - "From each according to his ability, to each according to his need." The demarcation of functions, the rigidity of social hierarchies in a beehive- all these are embedded within the genetic template of the bee species, unwavering, and immutable. Similarly, disturb a line of soldier-ants on their way to wherever or whatever it is that keeps them so
busy, and you'll find that the billion-year-old constitution keeps them on the track of the provisioning of their community, and preserving their species.

Only the species, homo sapiens, appears to have constantly adjusted its constitution to changing circumstances and encounters with others.

Constitutions are, very simply, the protocols of survival and continuity for any social grouping. They need not be written down, though, experience dictates that they are much better off set down. The United Kingdom, viewed by many ex-British colonials as the model of popular, participatory government - sometimes known as democracy - does not, till today, boast a constitution.

Rule Britannia has survived and adjusted merely through a progression of Acts of Parliament, which roughly fulfil the function that we accept as pertaining to that of a constitution, The constitution of the United States survives more in the breach than in the observance. "All men are created equal" - thus read its vibrant preamble. The fact that this was written at a time when a vast population of that society was anything but equal to others indicates, at the very least, a basic ideal towards which free societies constantly seek to propel their social horizons, even while sections of
their populace are excluded from participation in such an egalitarian project.

That ideal has persisted, however. It has taken immense human toll in the struggle for the fulfilment, from minor insurrections to major, earth-shaking upheavals such as the French Revolution. Yet, even that revolution and its wide-ranging, near-comprehensive Declaration of the Rights of Man just like the American Revolution, and its Declaration of Independence, somehow succeeded in tolerating a contradiction in an application where races and colonies were involved. The principle of liberty, egalite, fraternity might be appropriate for the French people; when it came to the blacks of the Caribbean colonies, it became relative, so yet another spiral of violent resistance was initiated and sustained with the now customary passages of heroism, sacrifice and savagery. And so the world continued to endure distortions of that ideal, its manipulation, its partial applications, all of which guaranteed the erosion of trust and confidence in the relations between peoples. Today, therefore, we find ourselves heirs to a history of reverses, usually, the result of the conflation of the principle of power and the exclusivity of its possession with a messianic pursuit of the ideal, usually under the banner of- the means justifies the end. The most exemplary lesson for this comes from the Soviet Union whose revolution took its
impetus, not from a struggle against external domination, but from an analysis of the existence of and mutual antagonism of social classes, and the dialectical necessity of the destruction of one by the other. Its ultimate goal was also that classless ideal that lies, theoretically, at the foundation of that same annunciation that we have heard from totally different upheavals, upheavals that owed their origins to different impetus, histories and cultures, namely: that all men are created equal.

Alas, nearly two centuries after the annunciation of that constitutive principle of the egalitarian society, a disillusioned George Orwell would make his famous adumbration of that ideal, and this time not in the context of class divisions, not as an attack on monarchism, feudalism or bourgeois fallacies, not on racist or colonial travesties of the ideal human society,
but as a tragic critique of the immense abyss between theory and practice, between constitutional doctrine and constitutive conduct: all men are indeed equal, he observed, but some are more equal than others.

Despite these costly stumbles, contradictions and hesitancies, one thing remains clear. The quest of humanity has been towards a defining principle that would guarantee to all members of a community that sense of equality - equality of individual being within the over all community equality of opportunity, and equality of access to the provisions of 'life, health and liberty'. At the heart of every constitutional exercise, even in monarchical times, are entrenched provisions that pay, at the very least, lip service to these guarantees, and the motivation of this constant is not far to seek: the framers of such constitutions seek to eliminate strife within society, and to provide a level of stability that enables society to fulfil itself
productively and guarantee its survival, just as with the animal species.

Parallel to the material provisions that form, the basis of such a quest for ideal internal relations within the community, is the inclusion of protocols that guarantee, at some level or the other, the entitlement of each and every individual to a say, a role, in the direction of the society to which he or she belongs. Over and above the parameters for contributing to a
common pool of wealth and sharing out of the resources of that society - that is, the material conditions of existence - there are also the immaterial, the crucial intangibles: the right of each constituent entity to a voice in the management of society, in the definition of, and establishment of structures of arbitration between individuals and groups, between groups and the total society and, finally, the articulation of rights in a way that ensures that the rights of one do not infringe on the
rights of another, or on the rights of society.

Among these intangibles, we have yet another. It forms a collective parallelism to what we have already acknowledged as the productive responsibility and material contribution of constituent parts to the whole - or to the centre if you prefer - and the corresponding distribution of jointly held resources to the various parts under a just formula. I deliberately categorise the material as distinct from the immaterial for an obvious reason that 1 hope is not lost on anyone - this reason being the
historic underestimation of the immaterial aspects, those aspects which like Freedom, like spiritual or cultural values, are often so tragically underestimated because they cannot be identified or quantified materially in the same way as the calories contained in two or three square meals a day.
You may recall the diplomat who, while defending the lack of freedom under Abacha's government, demanded of an international gathering: "Can we eat democracy?" To which of course there was only one suitable reply; "Can we eat dictatorship?" So, let us isolate this non-consumable element - it is one that I would describe as the Autonomous Will, an obvious derivative from the principle: All men are created equal. One principle cannot exist without
the presumption of the other.

Society - the ordered cohabitation of human beings - is possible, however, only through a transfer - I do not wish to use the word surrender, so let us simply say - attribution, loan - of the Autonomous Will, this representing the first part of an exchange that manifests itelf as the voluntarily transfer of the self-regulating rights of the parts to the whole, for
negotiated periods, to be held in trust. The second part of the exchange is of course: security, the planning of society and the management of resources.

Even the theorists of absolute monarchism in their own time resorted to this principle to justify the existence of the king at the pinnacle of power and authority and of course, to remove him when he violated those principles.
The most obvious guarantee of this exchange is the structure of legislation, a system of arbitration through whose operations the Autonomous Will is transferred back to the populace. The ideal condition of law is thus seen as one which protects the citizens against any infringements by the state on their rights, or prevents the state from attributing to itself more than the proportion of that Autonomous Will that was voluntarily transferred to it in its function as temporary custodian. In abnormal times, such as war however, we know that the proportionate appropriation of the Autonomous Will may change drastically.

Exercises in constitutionalism involve of course the accumulation of social experience, which means that the greatest beneficiaries of the process are, in fact, the youths. They build upon the experience of the past, and over and beyond those of their immediate society. They have a special status in this exercise since a constitution is a bequest to the future, and youths are - it is a cliche but it is one cliche that we cannot escape - youths are, quite incontrovertibly, the future. They should also - at least we have a right to hope, indeed, to demand - that they should possess a far more eclectic outlook than the older generation, who tend to be focused quite logically, on the pressing exigencies of their immediate or near societies.
The older generation of any society is - comparatively speaking - a crisis generation; at the best, a management generation. And management, as anyone will tell you, even humdrum, unadventurous, risk-free management of a fully
automated factory still makes such demands on what we might call 'response time' as to the limit one's scope of vision and innovation, sometimes even the capacity to make fundamental adjustment in routine functioning. (This is what gives rise to independent 'Research Units' in manufacturing enterprises). So, how much more if that adult generation has been defined,
continues to be defined by crises.

Not just Nigeria, but the continent is today' defined by crises, so what makes one rationally expect that in the process of addressing the future, the management generation of the continent can truly open its minds not only to a vision of the future, but to the lessons of the experience of other societies? Give us more time to do some urgent repairs, goes management cry, or everything will grind to a halt. And of course, such logic is impeccable.

This is why there are moments when I feel that we are all trapped in a mammoth factory known as the African continent, where all the machinery appears to have gone out of control all at once. No sooner do you fix the levers than the pistons turn hyperactive in another part of the factory, then the conveyor belt snaps and knocks out the foreman, the boiler erupts
and next the whirling blades of the cooling fans lose one of their members which flies off and decapitate the leader of the team of would-be investors - the last hope of resuscitating the works. That, alas is the story of our human factory on this continent. And you are victims also, mostly innocent victims, and we, the older generation, bear a heavy responsibility for this. From Rwanda to Sierra Leone, the phenomenon of dehumanised youth, forced to participate not only in wars as conflicts, but in orgies of killing, rape and mutilation is a blight on our continent's landscape and a permanent scar on our collective conscience. But do you know how deeply assaulted our humanity has become'? Do you really know the depth
of our dehumanisation? Perhaps some of you do know.

Others may not, so permit me to shock you a little. I want to take you, very briefly, into zones of unspeakable, that were undreamt of even in Dante's Inferno.

Of course you know of Rwanda. You know that youths - some willingly, even gleefully and competitively, others reluctantly, mere victims of coercion - took part in the orgy of killings, torture and rape in Rwanda, that among the prisoners awaiting trial in the prisons of Rwanda are youths accused of crimes that would make the blood curdle in your veins.Yet there are youths also - and this I learnt directly from survivors of that massacre during my visit to that country -there were youths who were killed by their own people for refusing to participate in the killings of their friends or neighbours.
What you may not know however, of that other killing ground, Sierra Leone - different only in form, not in implacable intent - was the abyss into which your generation was dragged in our humanistic regression, an epidemic of sheer depravity and the repudiation of every virtue of community that we like to boast of as being innately African, and superior to anything else in the world.

Last year, I met a Sierra Leonean survivor in Paris, a mother - it was during a UNESCO meeting in Paris, one of a series of conferences called 'Audience Africa', designed to catapult our continent to the very top of programme priorities in advance of the second millennium. I was specially invited to meet this woman by her hosts because they wanted me to hear her story at first hand. She had indeed survived the war in Sierra Leone, but - at what cost! She had been gang-raped, but before you sigh that this has become a depressingly prevalent aspect of civil strife, including within your host country, even in peacetime, allegedly by uninformed soldiers, you had better pay close attention. The leader of the rapists was indeed one of the recent phenomenon of the continent described as child soldiers but - he was also her own son! Apparently, it was not an uncommon story of violation. Part of the initiation process for some of those boy-soldiers, designed to sever them completely from all humane sensibility, to coarsen them through and through and erase all capacity for pity or remorse in their regarding of others, was precisely through such acts of perversion - compel them to rape
their own mothers. Drugs were of course freely supplied to dull all moral judgement and destroy the youths' perception of reality. The youth, having committcd the ultimate abomination, was also required to watch the rest of the gang complete the ritual of defilement. Since the cessation of hostilities, centres have been set up especially for the reclamation of
these youths and their reabsorption into human society. Traditional rituals have been resurrected - with an impressive rate of success, according to reports - to counter the mind-warping of thousands, possibly tens of thousands of youths who, through one act or the other, have become outcasts from the human family.

Such regressions must remain constantly at the back of our minds as we seek to fashion out codes for the rehabilitation of our species - for believe me, the so-called homo sapiens stands in dire need of rehabilitation. We are not alone in this. But of course that is no cause for complacency. I state the obvious, not as a route to self exculpation, but as an invitation to profit from the experience of others - be it in Bosnia, Yugoslavia with its seemingly irresoluble Serb-Albanian dislocation, Northern Ireland that continues to defy mediation, Spain with the last-ditch resistance of Basque separatists, or indeed the once mighty Soviet Union, which has reduced a city to rubble and displaced millions of its own people in its determination
to resolve an ancient discontent the ancient way. But it is not from those hot, lethal zones alone that we must extract lessons in the protocols that govern cohabitation.

The milder contradictions within long standing democracies should also serve us as signposts, so that we learn to anticipate, and to block as far as is possible the potential loopholes that may trigger social disintegration. The demanding part of such an incisive attention to the lessons of others is that it warns us that it is much better to face hard questions right now, while such questions appear remote, seem to have nothing in common with our own priorities, actualities, or predicaments. We can afford to treat them as purely academic propositions, asking the question, What if...?" - and then
relate such questions to our own history, our ethnic compositions, our comparative demographic actualities, religious adhesions, even ideological experimentations - if any.

Take for instance, the political imbroglio that has overtaken Europe, on account of the recent electoral results in Austria that led to the inclusion of a far-right political party, considered by some to be even neo-fascist, in the new government. It is a fascinating political quandary, one that should be of great interest to students of politics and international affairs, since a problematique has definitely been created within the definitions and acceptances of certain propagated ideals among the European nations. There is, on the one hand, the ideal of democracy, an ideal which when shorn of all mystique, simply means, the right to participate fully in the politics of one's society, the right to choose, and the right to have
such choices respected by others. But there is also the question of what choices conform to the ideals of the human society.

Unfortunately, ideals are not immutable, timeless or universal; they appear to change with the accumulation of experience, and the lessons derived from costly experiments tinkering with humanity. Nazism was an ideal during the Third Reich - and not merely within Germany itself - and Adolf Hitler was the embodiment of that ideal. Today, the German nation itself is at the forefront of denunciations of the Austrian nation for including within its government, a party headed by an individual who has openly espoused aspects of that repudiated ideal.The headache that the far-right Freedom Party has created for all is that its leader, Joerg Hadler has established a claim on power through the very structure and processes of the democratic ideal, yet his ideology comes so close to the repudiated ideal, Nazism, that the larger European community, and indeed quite a vocal section of the Austrian nation, declare his participation in government unacceptable.

The first point to make is that these are not abstract considerations. They touch upon the entire global society and the rights of both immigrants and minorities, I must confess that l was relishing the dilemma of the European nations in rather clinical way - how would they sort out this paradox of clashing ideals? The Australian people have chosen. They delivered twenty per cent of their votes to an individual with certain political beliefs that place him within the same ideological spectrum as - shall we say - Jesse Helms, the Daughters of the American Revolution and may be the Ku Klux Klan itself or - the aberrant ideal of the greater Hutu nation. I began with a pure1y clinical detachment, and then experienced a shock of recognition, even identification.

Surely some such complexity had occurred much closer home, right on our own continent. You will recall the case of Algeria where a fundamentalist lslamic party was all set to win- from all available figures-the elections which in fact were all but concluded. Alas, already relishing its victory, this clearly dominant party declared not only that it would turn Algeria
into a strictly theocratic state, it was going to abolish the entire democratic process by which it came to power. Whatever one's inclinations, there is an undeniable clash of political ethics and democratic rights about this, both of which have indisputable claims on any process of arbitration.

The facts are straightforward, and relate to what we referred to earlier about the transfer of Autonomous Will as a negotiated principle. A democratically elected government is entrusted with certain powers; it has
the right to exercise those powers on behalf of, and on the authority of the people whose votes were willingly given - this is both a democratic right and responsibility. If the rules permit an elected party to amend or even jettison the constitution through which it attained power - let's say, through the usual two-thirds majority of the elected body - and it proceeds to do so - it has not betrayed that constitution. The ANC can overthrow the South African constitution any time it chooses, only it has refrained from doing so - it is an important choice, we should interest ourselves in its reasons for not doing so, and consider whether there are provisions which it might jettison in the future, and why. In the case of Algeria, there is
certainly an ethical problem involved in pulling up the ladder by which one has just ascended, the only ladder by which one could have ascended, thus ensuring that no one else attains salvation or offers a programme of salvation to the populace by the same route. Where the constitution is an instrument of the greater ideal called democracy, and democracy is the
openness and accessibility of choice, then we have a real dilemma about the exercise of a right which flouts that ideal when a party in power annuls the very process by which it was elected to maintain such ideals. I have read nothing, both during and since those events, that satisfactorily resolved that quandary, nor have I resolved it, frankly, intellectually. It is an argument that can sway one in both directions at once, and I suppose the only answer is one of post facto subjective choice, a forward projection that demands: in what kind of society, the product of the resolution of such a dilemma, would I choose to live? In short, one is reduced only to an honest but not necessarily a just answer. Justice is sometimes a mischievous taskmaster.

If we wish to avoid such intractable questions in the future, then we must learn to take a microscope to the constitution - while it is still in the making. Any examination of its provisions should be made to provoke the speculative question: what if....? The two cases - Austria and Algeria - are of course profoundly similar, but the consequences within the two nations
are not comparable. The European nations can show their displeasure by refusing - through their delegates - to shake hands or pose for photographs with the representative of Austria, as they have just done at a meeting in
Portugal.

The consequences for Algeria have not been so symbolic, or benign. The carnage that has since overtaken that country beggars any other horrors - apart from Rwanda - that the continent has witnessed since the wars of decolonisation, and that includes, in some estimates, even the Algerian war of independence from the colonial master, France, with its documented tortures, scorched earth policy and pogroms. The crisis thrown up by the Austrian version of that clash of ideal nevertheless poses a challenge to political reasoning. As a muted version of the Algerian model, untinged by
volatile religious factors, it warns us very clearly: take care of the cracks between ideals and ideals, between rights and rights, and between rights and ideals. The constitution may confer a right that will prove to be the guarantee of erosion of the ideals that the constitution is meant to uphold. It is a lesson cheaply learnt, not cheaply for the Algerians, but cheaply for us in the sense that we can profit at a remove from the dilemma of others. We can take steps to ensure that even in the process of abiding with the strict rules of democracy, we find ourselves trapped in this crack, the consequences will prove comparatively benign and do not tear apart the very fabric of society. Best all however, is to ensure that such potential cracks are sealed up in advance.

I doubt if the managers of the factory have the time for such niceties, but surely, you have. It is your world, your bequest, and thus, your responsibility, no matter from what workbench of the factory you have emerged.

You have a responsibility, not only to make your own input into the constitution making process of your own society, but to examine microscopically those cracks that are easily overlooked, cracks into which those obsessed with domination of society at all costs will insert a wedge and make a forced entry even while sell-righteously proclaiming that the cracks are part and parcel of the constitutional construct, and that they have merely utilised legitimate avenues for the prosecution of their sectarian agenda.

Take a good look at the politics of this environment whose guests you are.

There are enormous lessons to be learnt from here, such lessons as may tend to overwhelm and depress you but, just consider the depth of the darkness from which we have just emerged! Fumbling still, yes indeed, the darkness has not totally lifted, and there are many among us who still grope in the shadows but imagine that they have arrived in the territory of reality.
Religious fanaticism is replacing the politics of reason, and ethnic emotions appear to overwhelm and obscure even the pragmatic advantages of political accommodation. Nevertheless, the very fact that we are able to come together here, of our own volition, not handpicked or manipulated into assemblage by a demented ruler and compelled to fashion a constitution that must conform to his imperious self-serving will, in secret conspiracy with a few cronies and dynastic upstarts, is an advance that holds promise even for such a sadly divided nation. All that is left for us to find is the way to a
dialogue of equals, a dialogue of the confident but not of the domineering.
We are a nation that desperately needs to redefine itself.

There are several routes to constitution making but remember, finally, that sometimes process itself yields the unexpected harvest of a collective therapy, and this is one nation that is also in need of healing. We insist here, that there is urgent need for a novel form of encounter with one another, whatever name it is given - a National Conference being the expression that is most readily apprehended. Constitutions are sometimes a by-product of such gatherings. We shall not meet with all doubts and suspicions removed, but such a gathering holds the possibility for unsuspected revelations - such as discovering that there are no horns hidden beneath the abetiaja, the turban, the feathered cap or bowler hat of the
interlocutor seated across the debating chamber, that there is no forked tail swishing beneath the kembe, the babanriga, or the akwete wrapper of the delegate from a long demonized sector of one's national space. The essence, a crucial one, is the maximum representational participation at such a gathering, as far as is practicable. The very process of an encounter, even an exchange of recriminations and expectations may actually revitalise the meaning of constitution since, in the process, a larger purpose would have been achieved, and constitution making becomes mutually experienced as a
creative undertaking - the reconstitution, no less, of the collective national being.

Professor Soyinka presented this address at the Conference on constitutionalism, Democracy and the Rule of Law for Nigerian students/Youths by the Committee for the Defence of Human Rights. February, 2000.