My apologies to modem users. Cheerio! Madiba. ======= POST EXPRESS Category: Politics Date of Article: 11/15/2000 Topic: Religion,Ethnicity and the Politics of Constitutionalism in Africa Author: Rev Father Matthew Hassan Kukah Full Text of Article: Rev Father Matthew Hassan Kukah is the Secretary of the Oputa-led Human Rights Commission. In this lecture he delivered at the Ohio University, Athens, Ohio, USA, Kukah attempts to espouse the ethnic, religious and political dimensions of constitutionalism in Africa. THE renewed interest in the process of Constitution making is indeed a welcome development across the African continent. If for nothing else, it seeks to reposition Africa and may thus prepare the ground for the establishment of a truly democratic system across the continent. This process tagged, Constitutionalism, is a new idea and is a departure from the seemingly static and traditional system that was characterised by dry legalism that characterised law making. The struggle for a new Africa in a globalised world has now thrown up new challenges that have made a paradigm shift a basic precondition for the new democracies in Africa. The development is welcome because it is a laudable attempt to elevate the level of discourse beyond the superfluous assumptions that constitutions are technical devises that can be designed by a mythical clique at the top, to be handed down to the ordinary people. Of course, this may be why constitutions have assumed the characteristics of state totems to be revered by the people. As such, rather than being seen as the basis of their every day social intercourse, constitutions have been turned into a golden calf to be worshipped. The result is that making a constitution has come to evoke some magical, super human aura, mystery and even superstition. Of course all this is actually a continuation of some of the contradictions that have come to give governance in Africa a toga of mysticism, shamanism and cultism. In Nigeria, this process is often propelled by a tiny clique who is paraded as icons to be revered and held in awe. Although the concept of constitutionalism now possess a chic resonance and is making us all very excited, I believe that there are some very fundamental questions that we must seriously address our minds to if the idea is not to become another passing fad. The real problems we need to address are many and they include the following: How do we ensure that the process escapes the manipulation of the ruling elite in Africa? Secondly, is it merely a theoretical, academic exercise or will it gain ground and take a life of its own? In order words, who propels the new constitutionalism, is it the political elite or the academic community? What and how do the people fit in especially when the process takes place in a language that naturally excludes them? Is it possible that there is a fear that a people driven constitution lead to a mobocracy while what the ruling classes and elites want is a democracy? What is more, how do we escape the tangled, chicken and egg scenario that will naturally dog our discourse; namely, can the new constitutionalism be built on the structures of the existing order, or should the proponents secure their own platform first? I have no need to bother myself because this conference has managed to assemble some of the best minds in the field. My paper will try to address what is largely hitherto, a neglected theme, namely, the role and place of religion in politics in general, an oversight that has now been admitted even by the ideologues of the world's leading democracy. Beyond its historical significance, religion was never really considered to have any serious role to play in politics. This fallacy has moved on to the realm of constitution making without seriously coming to grips with the dynamics of the environment. The result is that the religious question has seemingly rather silently crept into the forte and is now the single greatest threat to the existence of the Nigerian state. It was to alert that nation of its consequences that Fr. Iheanyi Enwerem warned of what he called a Dangerous Awakening. I will try to argue in this paper that the issues, which now face our nation, are the result of the failure of scholarship and ideology on the one hand, and part of the contradictions of the crisis of legitimacy in governance in Nigeria. Also, constitutionalism does not occur in space. It is a product of the quest for a legitimate space for the establishment of the Nation-state. Constitutionalism therefore is only relevant in relation to the processes of hammering out an acceptable basis for coexistence in a plural polity. Against this background, religion and ethnicity are only two components of these identities, but they are a basis for organisation and allegiance. To that extent, they do pose serious challenges in the formulation of the requisite constitutional frameworks for their preservation. As such, most of the discussions in this paper will primarily address constitutionalism in relation to the Nation-State as we understand it devoid of its ideological colourations. This paper will be divided into five sections. Section One will look very briefly at the way Islam, Christianity and African Religions view the role of Religion in a Constitution. Section Two will trace the experiences of Nigeria with religion using the experiences garnered while designing the 1979, 1988, 1999 Draft Constitutions. Section Three will look more critically at the status of religion in the Nigerian Constitution making process, focusing on the debate over what have come to be known as the Secular debate. Section Four will address itself to the practical implications and experiences of the adoption of state religion as a strategy for legitimation in Africa. By way of conclusion, Section Five will try to address its mind to the future of religion in the politics of constitutionalism in Africa. 2:1: Three Views of Religion and Constitutionalism in Africa: The tensions around the role of religion and politics are largely based on the conflicting perspectives of world religions. In plural societies such as we have in Africa, these tensions are literally inevitable. Given the ethno-cultural diversities and the contending claims of universal religions, the responsibility of governance is largely based on how best to manage these conflicting worldviews within the polity. Let us now briefly look at these views as expressed in three prevailing religions in Nigeria which predominate Nigeria in particular and Africa at large. 2:1:1: Perspective from African Traditional Religion and the State: The combined forces of the universal religions with colonialism have managed to give African Traditional Religion a bad name. Whereas it played host to both religions and the agents of the colonial state, it has come under severe attack from them both. However, as the processes of modernisation were set in motion, it became the first casualty. To be considered modern, progressive or to be part of the elite, one needed to move away from one's traditional religious allegiance. With the zero sum game approach of the universal religions, African Traditional Religion was relegated to the backwaters of so called modern African society. The universal religions are however not totally to be blamed for the limited role that traditional Religion has played in African political life. However, the inability of African Traditional Religion to impact on African politics is largely informed by its own circumscribed worldview. For example, to the extent that it does not canvass for support beyond its immediate horizons, to the extent that it can not proselytise or seek adherents beyond its spiritual universe, to that extent, its effect and impact does not go beyond the tribe. It is what defines your membership of the community, a membership that is not transferable. Recourse to African Traditional Religion in political competition in Africa is largely at the level of seeking its potency so as to gain advantage over opponents or to ward off evil through the application of charms, amulets and other medicines. In this regards, the role of African Traditional Religious priests in the social, economic and political life of the African Traditional Religious priests in the social, economic and political life of the African elite are much deeper than may be immediately acknowledged since those who patronise them do so in secret for fear of being found out to the hobnobbing with people considered to be agents of darkness and retrogression. Here, like the Biblical Nicodemus, they go at night in search of their salvation that their prestige will not allow them to be openly associated with. So, despite swearing with their Bibles and wielding their prayer heads, you are more likely to find the influence, potency and power of Traditional Religion under the official's tables and the thrones of the political elites across the African continent. In moments of great national stress and legitimacy crisis, there have always been appeals to Traditional religion. Despite being a Catholic for example, and priding himself as being the first African to receive Holy Communion from the Pope, late President Mobutu died on the sea because it was said that a native doctor advised him not to let his cancer infested colon touch the ground! Faced with imminent fall from his office, President Soglo, the World Bank technocrat did not turn to Milton Keynes but to Voodoo. He declared a National Voodoo day in his country. Whatever may be its potency, the point being made here is that traditional religion does not have the capacity to cause problems beyond its immediate confines. As such, in assessing its role in politics in Africa, it must be recognised that it does not possess the conflictual dynamics of other universal religions on the public arena. In the main, the point must be made that among the various African communities, the imperative of the religion of the king is the religion of his people holds true. Thus, the king always combined both traditional and religious powers. But as I have noted, the development of the nation-state has stretched the boundaries of claims to the point that political boundaries have now subordinated ethnic boundaries, and politicians have overshadowed the traditional institutions and those who oversee them. Thus, empires and emperors of old have now been reduced and constricted to whatever the political space the politicians can allow. It is here that the ambitions of the traditional rulers as custodians of their people's commoweal begin to masquerade as interests of the ethnic group. This is the nearest that ethnicity comes to having a role in Constitution making across Africa. Everywhere, traditional rulers are asking for a constitutionally assigned role and a place on the polity. Some times, these roles and other economic interest intersect and interpenetrate the religious, political and economic strata of society. The case of the Zulu King breaking away from the political umbrella of the Inkatha Freedom Party shows that in the main, traditional allegiance will always sway in favour of whoever has the knife and the meant. The trials and travails of Kabaka of Buganda or the Sultan of Sokoto under the colonialists or the agents of the modern state (politicians and soldiers), reflect these deep contradictions regarding traditional loyalties and political expediency. These royal fathers thrive in moments of social tensions when freedoms are suspended as was the case with the colonialists and subsequently, the military across Africa. With emerging democracies, traditional rulers have to contest for the heart and allegiance of their constituencies with the new political elite as to known who is the real representative of the people. The nature of this conflict has been the object of scholarship. 2:1:2: Perspectives from Islam: The politics of State and Religion in Islam is rather superfluous in the eyes of many a muslim. This is because the general belief is that one reinforces the other. However, in practice, there are variations in the thematic systematisation of these beliefs. Although many Muslims loosely argue that there is only one Islam, the fact of the matter is that this is just not true. There are many reasons why this is so. If we were to look at even the contradictory views and ideologies of the Brotherhoods, we shall realise that the claims of one Islam with a cohesive doctrinal set of rules and regulations in everything is not sustainable. There are some times diametrically conflicting world views between the Sunni and the Shiites in many respects as a closer examination would show. For example, whereas the Sunnis regulate their lives within the context of the four sources of Islamic law, the Shiites on the other hand focus more on the idea of the Imamate. Essentially, the world, according to Islam is divided into two: the domain of believers known as (dar-Islam) and the domain of infidels/unbelievers (dar-arhab). Theoretically, the two seem to exist in permanent conflict for obvious reasons. However, the nature of the ideals outlined in what has come to be known as the Constitution of Mecca, clearly shows that the prophet of Islam was unequivocal as to the roles of religion as the basis for survival and identity on the new polity. The document delineated the relationship between the members of the Muslim Ummah and the unbelievers, and conferred so called unbelievers the status of Dhimmi, which consigns them to subordinate status in social, economic and state relations. It is here that many scholars derive the theory of the inseparable link between religion and politics, with the later meant to reinforce the former. There are however, some Islamic scholars who argue that the idea that there is no separation of religion from politics in Islam is indeed a ruling class ruse. Said Fazlur Rahman: The slogan that in Islam religion and politics are inseparable is employed to dupe the common man into accepting that, instead of politics or the state serving the long range objectives of Islam, Islam should come to serve immediate and myopic objectives of party politics. In nowhere is the conflict and tension between Islam and the challenges of pluralism more pronounced today than in the quest for its relevance in the construction of the so called nation-state. As students of Africa know very well, there are very strong and persuasive arguments to the effect that the idea of the National-State, with its contradictions, and coming in the heels of colonialism is itself under siege and now largely considered a curse not a blessing. As I noted above, the capacity of traditional institutions and existing polities to resist both colonialism and the universal religions were restricted due to their ethno-cultural limitations as cultural of political expressions of their domination and conquests of existing ethnic polities. These are the stories of the Benin, Buganda, Ghana, Mali, Oyo, Songhai, Shona or Zulu empires that preceded colonialism. Islam, with its universal claims of establishing polities that merge faith and politics, found the idea of the Nation-State not only alien, but also destructive of the basis of its beliefs, culture, politics and economics. This is because in its experience, the destruction of its polities from Algeria, Nigeria or the Sudan was a precondition for the establishment of foreign domination whose survival was considered an affront to Islam. >From the history of the encounter between colonialism and the traditional kingdoms or Islamic states across Africa, we can see that the relationships were initially cordial as long as Islam saw that it could use these foreign relations to improve and consolidate its state. Nowhere was this drama better expressed than the relationships between the Kingdoms of Uganda or the Sokoto Caliphate. In the case of Uganda, the interplay between the Kabaka and the various missionary groups and later on the various colonial interests provides a fascinating expression of these dynamics. As it became clear, it was the final overthrow of the Kabaka that created the favourable environment that led to the establishment of the British empire across Uganda. Perhaps this was why the British then relied on Lord Lugard, the architect of the colonisation of Uganda to effect the subsequent conquest of the Sokoto Caliphate as a prelude to the colonisation what is now Nigeria. In all cases, relationships between the foreign religions or powers were always preceded by high level intrigues, dubious terms of trade, treaties, defense pacts and then finally conquest leading to the establishment of foreign domination. However, it was only when colonialism shifted from trade to occupation and the subsequent establishment of colonialism that the relationships deteriorated to war in many polities. The processes of finding accommodation between the conquerors and the conquered arose only when it was clear that there was need for live and let live between the parties. The impact of these contradictions and reorganisation of African polities still persists up till today and it affects the way many polities are organised and their attendant tensions. The net effect of these relations on the Nigerian polity from the colonial period, through independence till date have been well covered in my work, Religion and politics in Northern Nigeria. All over the world, the contest between Islam and the Nation-State remains one of the greatest challenges today. Indeed, in a post communist world, the best argument to date has been advanced by Professor Samuel Huntington who believes that the future of the so called new world order depends on the outcome of what he calls the clash of civilisations. To be sure, the controversy surrounding this thesis will not occupy our attention. But the thesis challenges Islam and the Nation-State in many respects and the reactions between Islamic ideologues and other secular scholars of liberal democracy, have been predictable. Among Muslims, there is a school of thought, which holds that indeed the fall of communism means that Islam has only one more enemy to conquer: Western civilisation (erroneously equated by the Mazrui school with Christianity). Many of the proponents of this position are largely the youths and a sprinkling of intellectuals who live in Europe and America, far from home. They believe that it is only a matter of time before Islam overruns the rest of the world. They point at the advantages, which secular Europe now offers with its relaxed immigration laws. They also believe that at the social levels, with Islam allowing four wives at least, the re-population of Europe and America will be undertaken by Islam whose population is rising at a time when family life in Europe is challenged by such social mores as contraception and the Gay movement. However, others think differently. Moderates like president Muhammad Khatami of Iran who believe that what the need not be conflictual, but that what the world faces in future will be best resolved by engaging in a dialogue of civilisations. Whatever may be the conclusions, the reality is that it is against this backdrop that politics is being contested across Africa and elsewhere instates where there are Muslim populations. The tensions persist whether they are in predominantly Muslim countries like Algeria, The Gambia, Senegal, or the Sudan, or where the Muslims constitute a minority, as in a Zambia, South Africa or Kenya. In each of these constituencies, Islam is contesting for power against the backdrop of the Nation-State. This conflict is occurring either within its own internal formations, or with those it considers secularists. However, what is interesting is that Islam seeks to use the very things it rejects, namely, the secular space, to advance its own non-secular goals as we have seen in Algeria, Sudan or even Nigeria. This is at the heart of Constitutional reforms in these and many other counties. The Nigerian situation possesses its own dynamics and it is so explosive because unlike other places in the world, it has an almost equal number of claimants of both faiths. There is no other nation that faces this problem. This is why the debate is much more acrimonious and some times bloody. But we shall come back to this. For now, we can end with the words of James Piscatori who has best captured the nature of the dynamics of the forces that are at play. He argued that in this contest between Islam and the Nation-State:.. Some have wanted primarily to avoid a blind return to the past and have accepted the need for change; others have wanted primarily to purify Islam and the innovations and deviations which westerners and, worse, westernised Muslims introduced; others have come to see many more contradictions between Islam and the demands of modern politics and have opted for the restriction of Islam to the individual's private life; still others have held a variety of opinions in between. 2:1:3: Perspective from Christianity: The issue of the role and place of religion in politics has always been very contentious within Christianity right from the beginning. Indeed, because Jesus came at a time of very serious social, religious, economic and political upheavals, the claims He made about everything abi-initio, helped to introduce the serious friction that developed among both His followers and the entire society around which He lived. By calling Himself a Messiah, talking about establishing a kingdom, rebuilding the Temple in three days, all these struck a very strong nerve in the lives of the people of his time. Here were the Jewish people, living in exile, searching for Land which they knew had been taken away from them by unbelievers because their ancestors had disobeyed the will of God, here were the Jewish people, living under the servitude of a Roman empire which had over-run them. The Jews were still very strong in the belief that the kingdom would be restored to them, they believed that a Messiah would come and that he would over run the Romans and turn back the hands of time in their favour. They dreamt about worshipping in their temple in Jerusalem etc. This is why people like Judas, die hard ideologues of the suicidal use of force to overthrow the existing order became so frustrated that he was ready to sell a man he had followed for thirty silver pieces. Jesus had failed to meet up with the standards of man who would conquer the Romans when He began to say things like; if you are slapped on one check, turn the other, or those who take up the sword shall die by the sword. This was not the stuff of conquerors and so, he and a host of others considered that getting Jesus out of the way would help restore their sense of expectation and determination to take on the Roman empire. Judas would have more than applauded the Ariel Sharons of today. Nowhere is this confusion of the role of the Christian more pronounced than we see when direct political choice is mentioned. When those who still had faith in Jesus confronted Him about the choice between allegiance to the kingdom of Caesar and the kingdom of God, their intention was to clarify their minds as to how best to find a balance between this world (Caesar) and the next (God). They did not want to lose eternal life by making the wrong choices! Yet, in answer, Jesus told them to render to Caesar what is Caesar's and to God what is God's. This text has now become the classic text adopted by most observers the connection between religion and politics to argue that Jesus meant that there should be no relationship whatsoever between the two. Any attempt would be like mixing oil with water! However, a much closer examination of the details of this text conveys a very different idea contrary to what have become the most popular interpretations of today. It will be recalled that before Jesus made this comment, He asked to be given a coin. He then asked his listeners whose face was on the coin, and they answered that the face on the coin was Caesar's face. Now this meant that the coin, being a symbol of Caesar's authority could mean nothing else other than the fact that all those who wished to do business and recognise in the kingdom of Caesar, must subordinate themselves to the authority of Caesar and play by his rules. God could not come down to compete for authority with Caesar. After all, the only reason why Caesar's face was on the coin was because he had established his authority. The next question which Jesus implied though did not articulate would naturally be, well, whose face does Caesar carry, whose image? If that question were to be asked, the answer naturally would have to be found on the basis of the Book of Genesis, which says that God created man in His image and likeness of Himself. In which case, all of us including Caesar carry the image of God. In the final analysis, if Caesar, who owns the coin belongs to God, it follows that in the end, both Caesar and his coin are God's since God created Caesar and his kingdom! If we follow the logic, then, politics becomes an act of offering to God by the children of this world. As such, contrary to the confusion which has been implied in the belief that the text conveys the idea that religion and politics are separate. Rather, both should be taken as an offering to God who owns them all! In the politics of the Nation-State, Christianity his not escaped the contradictions of Islam after it. From the period of Constantine when the Church and the state became merged into one and one was at the service of the other, Christianity suffered all the distortions associated with this political marriage of convenience. The French and the Bolshevik revolutions and other subsequent developments across Europe altered this may completely and pushed Christianity to the back burner of politics. Today, it is only the Anglican Church, the Church of England that still holds on to the vestiges of an established church. But even there, developments in the last twenty years have thrown up new contradictions and it is becoming clear that the Church of England would have to face the fact that destablishment is a better option for the Gospel of Jesus Christ, who rode into Jerusalem on a donkey, a symbol of humility. It is enough to say that historically, Christianity in Nigeria functioned even during the colonial period across Africa, at the level of separation of church and state. However, those countries in Africa which were colonised by the British or the Belgians and to some extent Portuguese had to face the problems of the assumption that church and state are one or at least not openly considered hostile. It is more likely though that this seeming collapse of interests had more to do with race than anything else since Africans did not always receive the same recognition. The result explains the nature of the locations of early Anglican Churches and official colonial government lodges in some parts of Africa. We shall come back to examine the nature of the conflict between religion and the Nation-State much later on, but for now, let us turn to other themes: ON its own, Ethnicity has hardly been a Constitutional issue, given that the essence of a Constitution is to secure a tent of protection and security for the rights, hopes and aspirations of its peoples. On the religious front, it is Islam really that has presented many nations with Constitutional problems regarding the role and place of religion. The story of this involvement is as old as the history of the intervention of the British in the lives of the communities in the various African states. In many African states, the British overthrew Islamic states which had become notorious for its infringements of the rights of citizens over whom they governed. The nature of these infringements included abduction, slavery, forced conversions and so on. The victims of these excesses included the poor segments of the Islamic society and that is how the concept of the Talakawa, the wretched of the earth, became for many, even with the Muslim community in the caliphate as a source of liberation. The North had always functioned as an independent cultural, social, political and even largely religious unit. It will be recalled that, as we have noted, after the conquest of the Sokoto caliphate, the major concession which the Muslim elite pleaded for was that the British should ensure that the interests of Islam be adequately protected. The British had these demands on two fronts: first of all, they pledged the policy of non interference which was meant to restrict the movement of missionaries and the spread of Christianity into areas considered to be Muslim lands, secondly, through indirect rule, the powers of the Emirs were enhanced and they were co-opted as junior partners in the power game that subsisted in the region. The non Muslim population in Northern Nigeria remained largely on the periphery of national life. Evidence of their disillusionment with Islam would later manifest itself in various ways as the communities embarked on various forms of the expression of self determination, some times violently. Indeed, the persistence of this violence as a basis for negotiation has become widespread with the spiral of violence precipitated by ethnic militias. It can be argued that the pursuit of the policy of the colonial policy of Non interference led to the deepening of suspicions and tensions on both ethnic and religious lines. First of all, the Muslims referred to non-Muslims as Kafir, a derogatory term that caused a lot of disaffection among the various indigenous peoples. Secondly, the local Christian population felt alientated as missionaries were denied freedom of movement while their faith was being given secondary status. The result is that by the time political formations began to emerge, non Muslims in the Northern region saw this as a chance to assert their Otherness and their new identity. Thus, the first attempt at political organisation by these communities found expression even in the platforms they sought to use. The first political formation was aptly called, the Non Muslim League (NML). It was later on changed to Middle Zone League (MZL) as the political space opened up. Much later on, the same movement metamorphosed into what was known as the United Middle Belt Congress (UMBC). As independence drew near, it became clear to the British that there were many problems that still needed to be properly addressed. The most prominent expressions of dissatisfaction came from the so-called Minority ethnic groups whose individual numerical weaknesses subordinated them to the seeming tyranny of the three main ethnic blocs. The regional governments which the British had created had been coterminous with the boundaries of power of the three main ethnic groups: East (Igbo), North (Hausa) and West (Yoruba). Minority agitation across the country was based on the feelings that the departure of the British would deny these ethnic groups the umbrella of protection. It was therefore felt that a Constitutional solution would have to be found to guarantee and protect their interests. Varied as these interests were, the British still believed they were serious enough to warrant their setting up what has now come to be known as the Commission Set Up to Enquire into the Fears of Minorities and how to allay them. Reactions to the Minority Commission ranged from charges of ethnic discrimination among the ethnic minorities in Southern Nigeria and religious discrimination among the minority ethnic groups in the Middle Belt. The grudges of the non-Muslim minorities centred around the following issues: . Allegations of Religious Discrimination: The pursuit of the policy of non interference had concretised the wall of distrust that grew amongst the various peoples of the Northern region. Islam, the dominant religion had gone beyond being an expression of faith. Non Muslims in the North felt that religion was playing too dominant a role in their political and socio-economic fortunes. Perceptions of discrimination against Christianity and Christians began to find full expression in Christians being denied places of worship in many Northern towns and cities. The turning point for these tensions and fears was in the early and mid 60s when the Premier of the Northern Region, Alhaji Ahmadu Bello began to embark on his Conversion campaigns. This development found the Premier traversing many non Muslim communities across the region, not to win political support, but to spread the banner of Islam. This reaction to the development and spread of Christianity was intended by the Premier to keep the North united under a religious flag. Its consequences are still largely responsible for the fears, tensions and suspicions that still dog relations in the non-Muslim ethnic groups in Northern Nigeria and the predominant Muslim population. In the area of Common Law, non-Muslims remained embittered by the fact that it was mainly Islamic law that was applied in the Area Courts which were all manned by Muslim judges (Alkalis). Ordinary non Muslims found them to be a source of oppression and injustice. . Allegations of Political Discrimination: Many non Muslims believed that being a Muslim was a basic precondition for the occupation of certain positions in the region. Before the Commission, non Muslims testified to harassment of political opponents by the predominantly Muslim political and ruling party of the time, the Northern Peoples' Congress. To be sure, there were sprinklings of non Muslims. As we pointed out above, the nature of the political party formations in the Middle Belt had already demonstrated that the non Muslims in the area preferred to run their lives. Despite the ethnic differences in the Middle Belt, ethnicity and religion converged in the protest against Islam. Again, these anxieties still persist and they have often manifested themselves in the various Constitutional debates right through the last twenty or so years. In reaction to these anxieties, the colonial government responded by merely stating that time and political engineering would sort things out in the regions especially after independence. At this time, the sticky religious question revolved around the status of Islamic Law in a new independent Nigeria. Over the years, that rather indiscriminate and political application of Islamic law across the various parts of the Northern region had further alienated many non Muslims. The colonial government was anxious that new political developments (independence for a united Nigeria) meant that the nation had to operate under a legal system that was acceptable to all segments of the society. And it can be argued that this really is where the issue of religion began to manifest itself in the Constitutional development of our nation. It is to this that we shall now turn our attention. . Consecrating the Political Space: The Politics of a Secular State: In addressing this issue, again, much attention will be devoted to Nigeria because although these problems persist in other African countries, the experiences are not as sharp as we have them in Nigeria. Sudan for example had not even been able to secure the political space to seriously address the issue of Constitutionalism precisely because of the very sharp convergence between the contending religious formations of Islams and Christianity. Since these differences have been frozen and have now become the basis of war, we have seen that nation falter from the madness of the Numeri period to the El Bashir pretensions at creating democratic space. The experience of Algeria in he last ten or so years has created its own problems for that nation. When the Muslim fundamentalists sought to use the structures of democracy to consecrate the political space, what followed was disaster. That nation's tragic experience in the last ten or so years is a manifestation of these contradictions. Constitutional monarchies like Morocco have their own peculiar system and just like other nations where Islam is dominant, non Muslims are consigned to what in the eyes of many is a second class status. We shall therefore examine Nigeria's peculiar problems to show the nation's experience with the dynamics at play in the pursuit of a secular, Constitutional democracy. By 1956, it had become clear to the British that the agitations for independence from the educated elite in Southern Nigeria, meant that independence would have to be granted sooner than later, they decided to start finding the best ways for containing the problems of how best to guarantee the relevance of Islamic law for a new Nigeria. To resolve this problem, the colonial government decided in 1958 to send delegations to travel to Sudan, Libya, and Pakistan. The idea was to find out the processes for the integration of Muslim law into a modern Democratic state. The reports of these Committees formed the basis for the establishment of the Sharia Court of Appeal in Kaduna, the regional headquarters of Northern Nigeria. The new legal Code was known as the Penal Code. This Code existed in Nigeria right through to the late 70s. As an educated and politically more conscious Muslim elite emerged in Northern Nigeria, the agitations for a more aggressive assertive and prominent role for Islamic law became more strident. Although for many observers, the climax came in the debate over the 1976 Draft Constitution in 1977, the fact of the matter is that these agitations had been going on. The unitary nature of military rule, its suspension of the Constitution as a basis for governance and legitimacy meant that there was no platform for the expressions of the accumulated emotions that had grown over the years in Northern Nigeria over the status of Islamic law. As we have already noted above, the issue of the place of Islamic Law in the politics of Nigeria remained seemimgly dormant until the circulation of the Draft Constitution in 1976 as a prelude for Nigeria's return to civil rule. The debates around the Constitutional provision have centred around Section 10 of the 1979 Constitution which provides that, No State shall adopt any religion as a state religion. The details of the debate have been covered elsewhere. The contents of that debate are well known and in any case, they have now been overtaken by events to which we shall soon turn our attention. The so called sharia debates have been about what exactly the word adopting any religion as a state religion really means. FOR the proponents of the Sharia, this is a call to Secularism, an aberration and an anti religious position that is unacceptable to any believer. To the non Muslim and the largely Christian elite, the clause means that the State should, in their words, hands off religion and religious affairs. The details and the context around which this debate takes place falls outside the context of this paper. The nature of the shifts in the positions adopted by the Muslim elite in using the Sharia as a strategy for political negotiations have been examined and their implications analysed elsewhere by the author. The tensions surrounding the various Sharia debates were manifold but they also managed to show Nigerians how little they knew about themselves and their various cultural, ethnic, religious baggage. For many a Southern intellectual, the Sharia was an irritant, an attempt to take modern Nigeria back to the dark ages as some argued. However, for many Muslim elites, the Sharia issue had become so important that they were ready to risk the survival of both democracy and the nation itself rather than sacrifice their platform. It might be important for us to ask why the Sharia debate has often generated so much passion. To this, we need to come to terms with the essential ingredients of the debates and how they impinge of Constitutionalism and the evolution of the Nation-State in Nigeria. It is possible to argue that there have been four periods in the Sharia discourse in Nigeria. Most of this has already been mentioned in the main body of this paper. Each period has often coincided with the need to lay a firm and solid foundation for a so called new order. Briefly, these periods to my mind, can be classified as follows. The Colonial Period: This coincided with the collapse of the Sokoto caliphate and agitation among the Muslim elite was to secure the freedom to practice their faith unencumbered. As we have noted, the very first concession which the defeated caliphate sought to extract from the British colonialists were, among other things, the spiritual space to practice their faith unhindered both by the colonial structures and Christian missionary activities which were portrayed as disruptive. Here, the protection of Sharia law by the colonialists was seen as a necessary step in the quest for laying the foundation for a colonial state. The legitimacy or otherwise of this state is not the issue. The pre-independence period: In the colonial period, agitation's against the excesses of Islamic law were dominant within the Muslim community where the poor oppressed often revolted against the dubious application of Islamic law for political ends. Outside the Muslim constituency, it must be remembered that among other things, Muslims genuinely feared the subordination of Islamic law and the decline of Islamic mores in a new democratic Nigeria. Given that the new state as being constructed on the debris of a moribund Islamic state, there were fears that a new democratic Nigeria could undermine Islam seriously and merely consolidate colonial or western values at the expense of Islam. As we noted, the solution was found in what the British presented as the Penal Code. The Military and Post Military Period: The intervention of the military in Nigeria politics had all the characteristics of a colonial force. Perhaps the only serious differences lie in the fact that the colonialists were our own sons and daughters. The plunder of the nation's resources, the arbitrary application of the instruments of terror against the people, the subordination of the Constitution to the whims of the illegitimate government, the threats to democracy, remain the trade marks of military rule. Perhaps, tragically, one invidious thing might be that whereas the British stole our wealth and used it to develop their country, our thieving elites, have still continued to channel our stolen resources to the vaults of the same European metropolis! Here, each attempt by the military to find the exit route and lay the foundation for democracy has always been followed by an attempt at providing a Constitutional basis on which to hoist the flag of the legitimacy of the new political order. Each time the nation embarks on the path of finding a Constitutional framework for a new state, the issue of the status of the Sharia has always been the most controversial part of the Constitutional debate. In 1988, the Babangida government, anxious to both play and move the goal posts at the same time, went as far as declaring the Sharia clause a no go area in the Constitutional Assembly debates of 1998. These phases manifested themselves in 1977, 1988, and 1995. The political period: It is possible to argue that most of the so-called debates about the status of Islamic law have largely been debates about how best to secure and protect the interests of the Islamic ruling classes whose oxygen of survival is supplied by Islam. In the preceding years, what we have always had, have been cases in which this elite uses the Sharia debate as a bait to secure a platform. As we noted in the case of Algeria and Sudan, excesses in extending the frontiers of application of Sharia law even in predominantly Islamic states that seek democracy and pluralism, have always taken the nations backwards. However, the younger generation of Muslim leaders has been prone to taking these suicidal risks. Although the sentiments surrounding this quest for an Islamic state derive from a rather poor reading of history, the fact is that the Islamic revolution in Iran in 1979 and the subsequent collapse of Communism put these challenges in perspective. Young Muslims especially those ironically living in the comforts of western societies, which they pretend to despise, believe that the destruction of the nation-state is a precondition for the emergence of Islamic as opposed to Muslim states. Echoing these sentiments, Dr. Dalim Siddique, delivering the Second Annual Khomeni Memorial Lecture argued that: Demolition of the colonial legacy and the nation-State and the neutralisation of the armed forces, are the indispensable prerequisites for the emergence of an Islamic state. The surgical operation of the Islamic Revolution must cut through and remove all the contaminated tissues in order to eliminate every chance of secondary infection... When another part of the Islamic movement succeeds in converting another geographical area of the Ummah into the Islamic state, the Islamic movement will be correspondingly strengthened. Then there will be two Islamic states in the global movement. And then there will be three, four, five... how many, we do not know. But the number of Islamic States will certainly be fewer than the number of Muslim states. Subsequent developments and Iran's inability to export its revolution or the reluctance of other Muslim states to import the revolution have shown that there is a distinction between the perceptions of the Islamic revolution from the warm embrace of western capitals and the cities of Qum, Iran. These were the sentiments that led to the declaration and adoption of Sharia Law across many states in Northern Nigeria. It can be argued that beyond the political mileage, only time will tell whether these states are on the way of transforming themselves from Muslims to Islamic states within the Nigerian nation-state. By way of conclusion, let us pose a few more questions by attempting some projections. Future Challenges for Constitutionalism in Africa: The convulsions across Africa are often seen as major threats to Constitutionalism and Democracy. As wars, hunger and poverty stalk the continent, many observers believe that Africa's soil is no fertile ground for the seeds of democracy. Yet, democracy, like child birth is bound to be both a labour intensive and bloody business. Africa has watched its dreams fail, the people have watched its elite eat up the seeds of a greater tomorrow. When the winds of Communism blew, we all responded in Africa. The result was staggering: 250 parties in Zaire, 100 in Congo, 68 in Cameroon, 30 in Senegal, 25 in Burkina Faso, 17 in Benin and 16 in Guinea. In the 70s, Africa's fortunes did indeed look very bright. In such countries like Nigeria, the Universities had become the epicentre of international scholarship. Military rule ravaged all that and lay the country to waste. The 80s found them pretending to seek legitimacy trying to use democracy as a fig leaf to cover their nakedness. The contradictions were exposed by the observation of such thinkers like Claude Ake who noted: Military rule is not so much the aberration we often call it as the negation of what is uniquely human in the way we relate. The military can never engender democracy because it is the antithesis of democracies regards to its norms, values, purposes and culture. The military addresses the extreme and the extraordinary while democracy addresses the routine, the military values discipline and hierarchy while democracy freedom and equality, the military is oriented to law and order, democracy to diversity. This partly explains why our so called nascent democracy, conceived and midwifed by the military, started to overheat even before we commenced the real journey in the search for freedom and equality. It is therefore possible to argue that contrary to what has become popular mantra in the discourse about Africa, the convulsions are not an impediment to democracy or democratisation. They are not the cause of Africa's inability to democratise, they are rather the symptoms of the failure of the African corrupt elite who have shown no serious commitment in seeking new directions for Africa's future. Hence, as we move into a renewed attempt at extending the frontiers of democracy, we must still remain vigilant. Constitutional transitions of the past got caught up in their own contradictions for many reasons. Professor Julius Ihonbvre has warned that there are many different kinds of Constitutional initiatives, which have been prevalent in Africa. He identified various initiatives at Constitutionalism across the continent. However, most of these initiatives have been at best been mine fields marked by various detonators planted to secure and protect the interests of the old order that tends to respond to the transition to democracy mantra while their heart are elsewhere. Among these initiatives at achieving Constitutionalism are the following: . Constitutional conferences with Sovereign powers Constitutional conference packed with state agents and men and women with dubious characters, largely anti democrats. . Constitutional conferences designed by the state to achieve desired ends. . Constitutional conferences designed to deal with certain specific problems; ethnic, religious or class. . Constitutional conferences aimed mainly to tinker with the old order but achieving no concrete results etc. The real issue is how do we find the right one and how do we avoid falling into the same pitfalls? The seeming failure of constitutionalism is not unconnected with the nature of the politics of transitions to democracy. Transitions from dictatorships always carry with them certain contradictions that are largely inherent: the contentious resistance by an old order and the determination of the new order to break forth. The old order never wishes to give away its privileges because the continuation of these privileges has always been the basis of the oppression. To throw off the yoke of oppression therefore implies a loss of privileges by those who are the beneficiaries. As a result, there is always something tentative and uncertain about transitions. Constitutionalism is one device for ensuring some degree of certainty. Unfortunately, there are no fool-proof measures to be taken. We can only try to learn from the experience of others by looking at their experiences. The issue of how and where religion and ethnicity fits into all this is problematic because both are neglected themes in African politics. Despite its seeming rigour, the left read the writing wrongly when it came to the role and place of both religion and ethnicity. Both were condemned as being obstacles to genuine national cohesion and other categories of relations such as class where invented. BUT, the reality has turned out to be a bit more complicated than this. Unfortunately, both ethnicity and religion have come back to haunt many new democracies in Africa in the most negative forms as we see in Rwanda, Algeria or Nigeria. It is against this background that our discussion must address the issues raised by O'Donnell and Guillermo who warned that the success of transitions lie in the ability of the middle class to decide which side they want to align with. He argues that: The middle class lends a distinctive weight to claims from civil society, they provide some respectability and authority to the discourse of the opposition ... by crossing over to the opposition, middle class elements later help prevent a right wing back lash against any regime that may come to power. We must also realise that there are no certainties in transitions. A lot could happen and we must not be blind to the fact that old orders do not merely concede defeat as if it is an act of charity. Indeed, it is possible to argue that the old order some times merely could wish to the instruments of democracy to install and consolidate itself in power by merely using different faces, but retaining the same objectives. And that is why, Dr Tunji Olagunji et al, argue that: We should not study transitions as if their outcomes are given; as if all that is required is a programme of activities and a time table to be pursued with mere missionary commitment and clock work precisions. It we focus our discussion on Nigeria, it will not be difficult to see where our attempted Constitutional reforms in Nigeria fit into any why they have tended to always fail. Their failure therefore has to be situated within the larger context of the contending interests on the African continent. In seeking to show case South Africa's Constitutionalism as an ideal, we must place it in proper context. Transitions occur as a result of any of three or more factors: a movement wins an outright war of liberation and draw up a Constitution that meets their ideological raison detre, two contending parties decide that none can win an all our war and they decide to negotiate. The constitution that emerges here is an amalgamation of these assorted interests and it is the result of bargains and trade- offs. With time, if the winning stronger side does not manage power properly and returns to the ways of the past, renewed tensions arise as in the case of Zimbabwe. The third situation which is not totally dissimilar to the previous one arises when for example, a ruling class realises that the tide is changing the political environment is no longer profitable for business and the survival of its interests (as in the case of military and civilian dictatorships in Algeria, Nigeria, Kenya or even South Africa under apartheid). The result, therefore, is that contestation becomes a necessary component of transitions and indeed transitions to a just order become an unfinished agenda! Finally, the emergence of the trappings of democracy across many countries in Africa in themselves do not necessarily mean that a new dawn has arrived. The rise of ethnic militias in Nigeria in the wake democracy, the rise in the curve of ethnic and religious violence are all disturbing, but they are largely an expression of the stress and tensions of transition from an old order to a yet unborn new order. The fact that even the best of both our intellectual and political class still remain ambivalent in condemning the excesses of these militias should tells us a thing or two as to how far we still have to travel on the path of national cohesion across ethnic or religious lines. The tensions which the Sharia crisis triggered across the country, all these are indicators of the fact that our nation still has not managed to exorcise the dark demons of ethno-religious bigotry. They also demonstrate that on anvil of a fialed state, where there are no laws, where those who hold power do not as yet possess the moral authority to command loyalty, any weapon will ,and can be hammered into existence. It is ,therefore, pertinent to raise the question as to whether consitutionalism is a way out and if so, what instruments should we apply? To seek answers to these questions, we even need to ask more questions. For example, what are the limits of Constitutions in governance in Africa? To what extent are the lives of those in power and those of ordinary citizens in Africa regulated by Constitutions? In other words, there is serious need for us to understand the cultural, social, political and economic taboos that still regulate the lives of our people and the extent to which they still impinge on the polity. It is clear to any observer that in most African countries, the informal sectors have overthrown the formal sectors. And this is true from the economy to politics. This is why corruption is so rife in Africa. African leaders, be they military or civilians have always fallen back on traditional systems as a basis of legitimising their hold on power. We have already referred to some of these examples. However, it is evident that a telephone call at an unholy hour of the night can decide the fortunes of our nation. A phone call from a traditional ruler in a far away corner of an African capital can decide whether an election will be accepted or not, it can decide whether X or Y will become the Vice Chancellor or not, it can decide whether A or B will become the Governor of the Central Bank, the Chief Executive of the National Oil, Gas, Diamond, Gold or Coal board. All these still happen despite the fact that African leaders hold Executive Council Meetings, Meetings of Councils of State, the existence of Senates or Houses of Representatives and State Assemblies. These are the stark realities that stare us in the face. When the leaders get irritated by the prying eyes of the Media or when such organs of civil society like labour or the Human Rights community, they resort to claiming that we are Africans, we must have home grown democracies, we must return to our cultures, the white man can not tell us what or do or how to run our lives, after all, we ran kingdoms and empires before the white man came. They never confront the fact that their predecessors at least had sanctions that empowered their subjects to oust them! The new constitutionalism must confront the stress and pull that come with these challenges and decide whether indeed, we need a need a transition from or merger with the old order. There are no quick answers, but we must probe for them. This brings us to a very important point: what manner of foot soldiers do we need to fight for a new order for Africa? What is clear is that when we talk of a people based Constitution, we tend to focus on the need of the people to have a say. Yet, as we have noted, the idea of the people is still problematic in Africa due to the problems of so called tradition and this is a large measure of why oppression, victimisation and violence persist through the application and deployment of gender, tribe, region, religions, ancestry as instruments of violence. Some times, what passes for a people based Constitution based on a broad based consultative initiative may indeed be nothing more than people presenting a wish list or shopping basket of needs, wants and ambitions. In the case of South Africa's much acclaimed consitutionalism, the 1.7m submissions received finally were whittled down to a mere 11,000. The Commission held over 26 public sittings, with over 2oo Constituent Assembly members and 20,649 people in attendance, and a staggering 717 organisations represented. Thirdly, it is important for us to understand that no Constitution offers all the cures nor is it a one size fits all. Beyond being a mere declaration of intentions, it is a blind document which can not see into the future. As a result, what is really needed is a process that can help install institutions, ideas and ideals around which civil society can be firmly built as a stepping stone to the emergence of people power. Even in its purest form, People power has its own serious ideological contradictions. Some times, it is nothing more than a platform for the channeling of discontent against the existing order. Consequently, people power can be propelled by a common enemy (the existing order) and yet lack a common vision. It is easy for people to believe that they see what the are united against, but what they are united for can be a will-o'-the-wisp. Raise questions about the nature of the characters who got into power and the time frame within which interests were really allowed the conflate. A shot gun transition will always tend to lend itself to amnesia and the haste to get the old order out. South Africa's transition created the right environment for the explosions and implosions of internally and externally propelled contradictions regarding race, ethnicity, and class, the three contending forces in the system. In the case of Nigeria, there was no time for even a dialogue with the old order. Nigerians were said to be yearning for Democracy and thoroughly fed up with the military. With too many pretenders to the throne of Democracy, we mistook the wood for the trees. These are some of the contradictions which continue to dog the process. Be that as it may, it would seem to me that there is hope at the end of it all. If only government develops the sophistication and acquires the necessary tools to deal with the social problems created by unemployment and moves fast to fill in the perceived power vacuum, it can at least attempt to occupy the moral high ground. The tensions generated by ethnic militias will persist until the President demonstrates that it has won the legitimate right to occupy the moral high ground. In the case of South Africa and Nigeria, the idea of Truth Commissions has been adopted, but not without its own problems. From the revelations, there are many who would suggest that a collective amnesia would have been a better alternative. Whatever may be the limitations of these investigations, many argue that they should not be exercises in witch hunting. Yet, I believe that if indeed we have witches, hunting them is very important. Not all witch as long as it is not caught. In the process, its double- faced life is what constitutes the problem. If a witch can be made to repent, at least that will set it on the path of personal liberation as a basis for national liberation. Yet, there is the witch in each and every one of us. So, beyond the theatricals of those who have been caught, a new Africa will never emerge until we all confess and seek renewal in whatever shape or form. The future of Africa depends substantially on how well Nigeria and South Africa reposition themselves. While a false picture of competition is being painted, both nations must realise their peculiarities. Whatever happens to South Africa, it is not about to become the focal point of all black people the world over. Only Nigeria has the capacity to play that role. If Nigeria fails in that role, it will never be forgiven. As we trudge on in the valley of tears while the rest of the world moves on the fast track, Africa's choices seem to be encapsulated in what Friedman meant calls the Lexus and the Olive Tree. It is a delicate choice that does not have to sacrifice one value for the other. He captured the essence of this choice thus: Any society that wants to thrive economically today must constantly be trying to build a better Lexus and driving it our into the world. But no one should have any illusions that merely participating in the global economy will make a country healthy. If participation comes at the price of a country's identity, individuals will feel their olive tree roots crushed, or washed out by this global system, those olive tree roots will rebel. They will rise up and strangle the process ... A country without healthy olive trees will never feel rooted or secure enough to open up fully to the world and reach out to it. But a country that is only olive trees, that has only roots, and has no Lexus, will never go, or grow very far. Keeping the two in balance is a constant struggle. Finding that balance is what has enabled many famous acrobats to dance on a tight rope while throwing up six eggs in the air. Perhaps Africa needs more and more acrobats as we walk into the new millennium. May God give us the grace and show us the way. Concluded Rev. Fr Kukah is consultant to the Pontifical Council on Inter-religious Dialogue at the Vatican City, Rome. ---------------------------------------------------------------------------- To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html You may also send subscription requests to [log in to unmask] if you have problems accessing the web interface and remember to write your full name and e-mail address. ----------------------------------------------------------------------------