THEORISING REAL CONSTITUTIONAL CHANGE

Duncan M Okubasu*

4.1 Introduction
As noted in Chapter 2, much is known already about the reasons behind formal
constitutional change: how it occurs and what makes formal constitutions endure.1 By
contrast, though there is a great deal of political science literature on political regimes and
the conditions for their stability,2 there is none that succinctly theorises the idea of “the real

*LLB, LLM, PhD, Advocate.

1 See e.g. Mads Andenas (ed.), ‘The Creation and Amendment of Constitutional Norms,’ (2000) British
Institute of International & Comparative Law; D Oliver and C Fusaro (note 13 above); Contiades
(ed.), (note 13 above); Stephen Levinson (ed.), Responding to Imperfection: The Theory and Practice
of Constitutional Amendment, (Princeton University Press, Princeton, 1995); Reijer Passchier,
Informal constitutional change: constitutional change without formal constitutional amendment in
comparative perspective, (diss. Leiden), Amsterdam: Ipskamp Printing 2017); Tom Ginsburg and
James Melton, ‘Does the Constitutional Amendment Rule Matter at All?’ (2015) 13 International
Journal of Constitutional Law, 686; Reijer Passchier and Maarten Stremler, ‘Unconstitutional
Constitutional Amendments in European Union Law: Considering the Existence of Substantive
Constraints on Treaty Revision’ (2016) 5 (2) The Cambridge Journal of International and Comparative
Law 337- 367; Xenophon Contiades and Fotiadou, Alkmene, On Resilience of Constitutions. What
Makes Constitutions Resistant to External Shocks? (2015) 9 (1) Vienna Journal of International
Constitutional Law 3- 26; Peter Ordeshook, Constitutional Stability (1992) 3 Constit Polit Econ 137–
175; Tom Ginsburg, James Melton & Zachary Elkins, ‘The Endurance of National Constitutions,’
(Cambridge University Press, 2013); Gabriel L. Negretto, ‘The Durability of Constitutions in Changing
Environments: Explaining Constitutional Replacements in Latin America,’ (2008)
<https://kellogg.nd.edu/sites/default/files/old_files/documents/350_0.pdf> accessed 7 November
2020; Erik Bjorn Rasch, and Roger D. Congleton ‘Amendment Procedures and Constitutional
Stability,’” in Roger D. Congleton, and Birgitta Swedenborg (eds) Democratic Constitutional Design
and Public Policy: Analysis and Evidence (Cambridge, MA: MIT Press, 2006); Heather K. Gerken,
‘The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution,’
(2007) 55 Drake Law Review 925; Melissa Schwartzberg, Democracy and Legal Change (Cambridge:
Cambridge University Press, 2007); Xenophon Contiades and Fotiadou, Alkmene, On Resilience of
Constitutions. What Makes Constitutions Resistant to External Shocks? (2015) 9 (1) Vienna Journal of
International Constitutional Law 3- 26; Charles M. Fombad, ‘The Evolution of Modern African
Constitutions: A Retrospective Perspective,’ in Charles M. Fombad Separation of Powers in African
Constitutionalism (Oxford University Press, 2016) 13.
2 See e.g. Johannes Gerschewski ‘The three pillars of stability: legitimation, repression, and co-optation
in autocratic regimes,’ (2013) 20 (1) Democratization 13-38; Holger Albrecht and Oliver
Schlumberger, ‘Waiting for Godot. Regime Change Without Democratization in the Middle East,’
(2004) 25 International Political Science Review 371– 392; Bueno De Mesquita, Bruce, Alastair Smith,
Randolph M. Siverson, and James D. Morrow, The Logic of Political Survival (Cambridge, MA: The
MIT Press, 2003); Hlaing, Kyaw Yin. ‘Setting the Rules for Survival. Why the Burmese Military Regime
Survives in an Age of Democratization,’ (2009) The Pacific Review 271 –291; Przeworski, Adam,
Michael Alvarez, Jose´ Antonio Cheibub, and Fernando Limongi ‘What Makes Democracies Endure?”
(1996) 7 Journal of Democracy 39– 55; McMahon, R. Blake and Slantchev, Branislav "The
guardianship dilemma: regime security through and from the armed forces" (2015) 109 (2) American
Political Science Review 297-313; Joseph Wright and Daehee Bak “Measuring autocratic regime
stability” (2016) Research and Politics 1-7; Joakim Ekman ‘Political Participation and Regime Stability:
constitution” or the causes of real constitutional transformation.3 This chapter consequently
addresses those issues. Drawing on literature in both constitutional theory and political
science, it develops an account of a range of possible conditions for real constitutional
change. These theoretically derived conditions are then used as investigative tools to
understand real constitutional change and stability in Sub-Saharan Africa in the case-study
chapters.

In order to achieve its objectives, this Chapter commences by first elaborating the
idea of the real constitution in section 4.2. As observed in section 1.10 of Chapter 1, the
real constitution is made up of numerous elements, but there are certain elements that can
be commonly traced in most legal systems. Section 4.3 lists and expounds upon these
elements, both to justify this study’s focus on the real constitution and to identify the
elements of the real constitution that will be used to examine various constitutional
outcomes of interest. Section 4.4 in turn discusses various ideal-typical real constitutions
and their observable features. The heart of this chapter, section 4.5, first theorises the idea
of real constitutional change – and by extension stability – and then sets out various
conditions that, at a theoretical level, may be said to drive real constitutional change. These
conditions are discussed under four broad subheadings: (a) actor-led; (b) structural; (c)
changes to formal constitutional powers; and (d) effective judicial review. The chapter
concludes with a summary.

4.2 Defining the real constitution

The late Walter Murphy is reportedly famous for intervening in conversations about
constitutions with the question “you mean the written constitution.”4 His intervention was
informed by the many connotations that the phrase “the constitution” bears.5 It is

A Framework for Analyzing Review Hybrid Regimes,’ (2009) 30 (1) International Political Science 7-
31.
3 In English literature, the term “real constitution” features prominently in Jan Erk, ‘Real Constitution,
Formal Constitution and Democracy in the European Union,’ (2007) 45 (3) Journal Compilations 633–
652. See also Jack Balkin, ‘The Roots of the Living Constitution,’ (2012) 92 Boston University Law
Review 1133; Dieter Grim, “Types of Regimes” in M Rosenfeld, A Sajó The Oxford Handbook of
Comparative Constitutional Law (Oxford University Press: 2012) 98
4 See Tom Ginsburg, James Melton & Zachary Elkins, ‘The Endurance of National Constitutions,’
(Cambridge University Press, 2013) at 46. at 30.
5 For different conceptions of constitution, See, Carl Schmitt, Constitutional Theory, trans. Jeffrey
Seitzer (Durham, NC: Duke University Press, 2008) 57 -59; Graham Maddox, ‘A Note on the Meaning
commonplace to see, for example, such distinctions as the de jure vs de facto, prescriptive
vs descriptive and small “c” vs large “C” constitution, depending on the nature of the study.6
As observed in Chapter 1, the de jure, prescriptive, formal and large “c” constitutional labels
are used synonymously with the formal or written official constitution, while tags such as
“the day-to-day workings of constitutions,”7 “de facto”,8 “empirical”9, or “working”10
constitution are used in reference to what is designated in this study as the real constitution.

The real constitution has a long ancestry that predates the formal constitution as we
understand it today. As Jan Erk remarked, the word “formal” constitution has its origins in
the German-language literature on constitutional politics.11 It is the “letter of the law.”12 The
modern notion of the formal constitution is thus associated with the 1 st French Republican
and American constitutions.13 According to Grimm, the normative and prescriptive, or
formal constitution, “emerged during the eighteenth century in the course of the American
and French” revolutions.14 The French Constitution of 1771 and the Constitution of the
United States of America of 1787 are thus thought to be the first modern formal constitutions
in this sense.15 They codified rules that spelt out the relationship between the state and its

of 'Constitution',’ (1982) American Political Science Review 76, 805–809; Charles Horward
MciLwain, ‘Constitutionalism: Ancient and Modern,’ (1947)
<http://www.constitution.org/cmt/mcilw/mcilw.htm> accessed 3 March 2016; Michael Zuckert and
Felix Velezuela ‘Constitution in the Age of Terror’ in Ellen Frankel Paul, Fred D. Miller et al, (eds)
What Should Constitutions Do? (Cambridge University Press: 2011) 72; Jeremy Waldron, Book
Review, ‘Never Mind the Constitution: A comparative critique of anti-constitutionalism’ (2014) 127
Harvard Law Review 1147, 1159-61.
6 David S Law, “Constitutions” in P Cane & H Kritzer (eds) The Oxford Handbook Of Empirical Legal
Research (2010: Oxford University Press) at 16 (“the distinction at issue has been expressed in a
variety of ways, each of which has its own shadings and nuances, but the underlying divide is between
de jure, written, codified, or formal constitutions (“large- c” constitutions), on the one hand, and de
facto, unwritten, uncodified, or informal constitutions (“small- c” constitutions), on the other. A large-
c constitution is a legal document, or set of legal documents, that (1) proclaims its own status as
supreme or fundamental law, (2) purports to dictate the structure, contours, and powers of the state,
and (3) may also be formally entrenched, in the sense of being harder to amend or repeal than other
laws. A small- c constitution, by contrast, consists of the body of rules, practices, and understandings,
written or unwritten, that actually determines who holds what kind of power, under what conditions,
and subject to what limits”)
7 Ibid.
8 See e.g. Katarzyna Metelska-Szaniawska, ‘Post-socialist constitutions: The de jure–de facto gap, its
effects and determinants,’ (2020) Economics of Transition and Institutional Change 1-22 at 1.
9 Dieter Grimm, Constitutionalism: Past, Present, and Future (Oxford University Press, 2016) 3.
10 Karl Lewellyn, ‘The Constitution as an Institution’ (1934-1935) Oregon Law Review 108.
11 Erk (note 3 above).
12 Ibid.
13 See, Ulrich Preuss, ‘The Implications of Eternity Clauses,’ (2011) 44 (3) Israel Law Review 429.
14 D Grimm (note 9 above).
15 Preuss (note 13 above).
subjects in the form of a modern constitution, even though such rules existed as a practical
matter before the American and French revolutions.16 The real constitution, for its part, is
traceable to early known civilisations. 17 Though thinkers like Cicero, Plato and Aristotle
spoke about systems of governance, including ideas that undergird present-day constitutions
in their least developed forms, ancient city states were not run by virtue of documents such
as modern-day constitutions.18 The original sense of the word constitution was associated
with the ‘makeup of something.’19 Cicero identified the constitution with the way the state
was established while Aristotle connected the constitution to the “forces operating within
the polity to produce its public life”.20 In Aristotle’s view, a constitution “is the way of life
of a citizen-body”.21 Reference to constitutions by early thinkers denoted the actual
conditions that constituted the body politics rather than the written document. 22 On this
account, every society, including those without a formal constitution, has a real constitution.

How then can we tell that certain norms in a political order are part of its real
constitution? Ernst Young has suggested – though without using the term real constitution
– that the way to go about it is to consider the functions of a constitution. 23 Claiming that
there is a constitution in the United States “outside” the 1789 Constitution, Young argues
that there is a disconnect between how constitutions are described and what their functions
are. He argues:

My central claim in this Article is that the American “constitution” consists of a much wider
range of legal materials than the document ratified in 1789 and its subsequent
amendments.24

16 Generally, see Grimm (note 9 above).

17 Graham Maddox, ‘A Note on the Meaning of 'Constitution',’ (1982) American Political Science
Review 76, 805–809.
18 Cicero W. Keyes, ‘Original Elements in Cicero's Ideal Constitution,’ (1921) 42 (4) The American
Journal of Philology 309.
19 Michael Zuckert and Felix Velezuela (n 5 above) at 72.
20 Ibid.
21 Thomas I. White, Aristotle and Utopia (1976) 29 (4) Renaissance Quarterly 640.
22 Michael Zuckert and Felix Velezuela (note 5 above).
23 K.N. Llewellyn (note 10 above); Ernest A. Young, ‘The Constitutive and Entrenchment Functions of
Constitutions: A Research Agenda,’ (2008) Journal of Constitutional Law 399. See also Lawrence B.
Solum, ‘Originalism and the Invisible Constitution,’ in A stone and R Dixon, The Invisible Constitution
in Comparative Perspective (2018: Cambridge University Press), 61 at 62 (Solum noted that “the
United States obviously has an unwritten constitution: not all of the content of constitutional law is
explicitly stated in the constitutional text.”
24 Ibid.
Though Young’s claim is just about the US, it holds sway in many, if not all political orders.
The “wider sources” of constitutional authority are quite expansive and range from, say,
foundational documents (such as the Declaration of Independence), to legal, moral and
political principles (such as Social Contract Theory), to list but a few. 25 In most polities
though, the written constitution, quasi-constitutional legislation, informally or extra-
constitutionally acquired powers and political practices, judicial pronouncements,
constitutional conventions, and informal norms and understandings about what public
officials are required to do are often the fount of “small-c” constitutional authority. This list
can certainly be longer in some political orders than others and the role that each of these
elements plays may also vary from context to context. The section that follows elaborates
on some of these elements.

4.2.1 The large “c”/written Constitution

With the exception of a few countries, all societies have embraced the idea of a supreme
text, officially recognised as the constitution, that forms the basis for power acquisition,
distribution and control – what Melkinsburg call the “large-c” Constitution. The written text
of a formal constitution may be contained in a single official document, such as the
Constitution of the United States of America of 1789, or in more than one document, such
as in the Czech Republic or Canada, whose official constitutions are polytextual. 26 This
written text is often read together with what Upendra Baxi has called the “doctrinal
constitution”, by which he means judicial interpretations of the text together with the
principles that undergird texts, such as the separation of powers and checks and balances.

Enforcement – or rather susceptibility to enforcement – is central in adjudging written

constitutions’ contribution to the real constitution. It could be contended in this regard that
where a formal constitution is unenforced, it is not a part of the real constitution at all. In
the field of constitutional stability for instance, a text that is unenforced, even if it is rarely
altered, cannot be considered stable as it is self-enforcement that imputes “constitutional

25 Solum (note 23 above) at 80.

26 Tom Kahana ‘Canada’ in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A
Comparative Study (2011, Oxford: Hart Publishing) at 9 at 11; Michal Tomoszek, ‘The Czech
Republic’ in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A Comparative Study
(2011, Oxford Hart Publishing) 41 at 42.
stability”.27 The presence of a gap between practice and the written text, in this regard, often
denotes non-enforcement, except perhaps in polities where less has been reduced to
writing.28 The real instances of non-enforcement are consequently societies whose robust
recognition of rights and institutional frameworks is not on a par with constitutional practice
on the ground. It is in respect of these societies that the idea of “sham” or “sham-like”
constitutions has emerged to describe a phenomenon where the prescriptive and descriptive
constitutions are at variance.29 Sham constitutions, Tushnet argued, “embody the normative
values associated with constitutionalism in their text but in their operation fall dramatically
short of actualizing those values”.30 It is, presumably, the centrality of enforcement that
makes Hardin describe constitutions as “consequentialist” instruments such that if one is
not optimally operative it becomes unworthy of the description “constitution”.31

The notion of enforcement as the criterion for assessing whether a formal constitution
is part of the real constitution does not, however, mean that formal constitutions are only
politically valuable to the extent that they are enforced. Constitutions play far more roles
than the “consequentialist” one that Hardin suggests. For instance, constitutions and some
of their accompanying texts, such as preambles, perform an “expressive” function, by
articulating the values and aspirations of societies.32 Also, constitutions, it has been said,
just like courts, play strategic roles in authoritarian regimes.33 In Ginsburg and Simpser’s
view, constitutions facilitate “coordination within the authoritarian group” and send out
strategic messages to international and domestic actors.34 Tushnet adds, in paraphrasing
Ginsburg and Simpson, that they “provide guidance for officials and subjects with respect

27 See for instance, See, Peter C Ordeshook, ‘Constitutional Stability,’ (1992) 3 (2) Constitutional
Political Economy 137-175; Sonnia Mittal & Barry R Weingast, ‘Constitutional Stability and the
Deferential Court’ (2010) 13 (2) Journal of Constitutional Law 337.
28 See e.g. Jannekke Gerards, ‘The Irrelevance of the Netherlands Constitution, and the Impossibility of
Changing it,’ (2016) 2 Revue interdisciplinaire d'études juridiques 70.
29 See, David S. Law and M Versteeg, ‘Sham Constitutions,’ (2013) 101 California Law Review 863.
30 Mark Tushnet, ‘Constitution’ in Michael Rosenfield and Andras Sajo, Oxford Handbook of
Comparative Constitutional Law (2012: Oxford University Press) 217, 228.
31 R Hardin, (note 15 above) at 54.
32 Richard Albert, ‘The Expressive Function of Constitutional Amendment Rules,’ (2013) McGill Law
Journal, 59, (2), 225–281; Michael C. Dorf, ‘The Aspirational Constitution,’ 77 Geo. Wash. L. Rev.
1631 (2008-2009); Mauricio Garcia Villegas, Law as Hope: Constitutions, Courts, and Social Change
in Latin America (2004) 16 Fla. Journal of International Law 133.
33 Tom Ginsburg & Alberto Simpser, ‘Introduction,’ in T Ginsburg & A Simpser (eds) Constitutions in
Authoritarian Regimes (Cambridge University Press, 2014) 4-5.
34 Ibid.
to the actions they are required or allowed to take”.35 In addition, certain aspects of the
written constitution, even when it is a sham, may be enforceable. For instance, a constitution
may provide for democratic multiparty elections to be held every five years. This provision
could be enforced, and hence part of the real constitution, even though the quality of the
elections was poor and suggestive of a weak democracy in practice. The written
constitution, in other words, will be more or less reflective of the real constitution depending
on where it sits along a continuum from pure sham to the hypothetical, perfectly enforced
written constitution.

Lastly, there is an empirical connection between the real constitution and the written
one. As Melton claimed about human rights:

entrenching a human right in the constitution can, under certain circumstances, significantly
improve the odds that a country will observe that right in practice. This finding suggests that
the relationship between constitutional promises and actual practice is stronger than
generally assumed.36

Melton’s research on rights is not the only research to establish a connection between the
written and the real constitution. In a different project, Melton and Ginsburg noted a
“positive relationship between de jure and de facto judicial independence reported by Hayo
and Voigt.”37 These comparisons have extended beyond judicial independence and reveal
that de jure (formal) institutions can influence de facto ones.38

In sum, three claims are made about a polity’s real constitution if it has a written one.
The first is that enforced aspects of the written constitution form part of that polity’s real
constitution. Second, the strategic purposes for which written constitutions are used in a
polity are also part of the real constitution, whether or not they are enforced. Third, these

35 Mark Tushnet, ‘Authoritarian Constitutions,’ (2015) Cornell Law Review 391.

36 J Melton, Do Constitutional Rights Matter? (2014) available at
https://pdfs.semanticscholar.org/e030/faaef3401760e608dfb9faa13389bd41d377.pdf (accessed 13
April 2019).
37 James Melton & T Ginsburg, ‘Does De Jure Judicial Independence Really Matter? A Re-evaluation of
Explanations for Judicial Independence,’ (Coase-Sandor Institute for Law & Economics Working Paper
No. 612, 2014) 210.
38 Peter Foldvari, ‘De Facto Versus de Jure Political Institutions in the Long-Run: A Multivariate Analysis,’
(2017) 130 (820–2000) Soc Indic Res, 759–777. For a contrasting view, see, William Armaline Davita
Silfen Glasberg, Bandana Purkayastha ‘De Jure vs. De Facto Rights: A Response to “Human Rights:
What the United States Might Learn from the Rest of the World and, Yes, from American Sociology,’
(2017) 32 (1) Sociological Forum 220.
purposes – whether the formal constitution is actually enforced or serves an instrumental
value – shape understandings of what the written constitution means for power acquisition,
distribution and use. These understandings are themselves part of the real constitution.

4.2.2 Quasi-constitutional legislation

It is hardly possible that power can be acquired and exercised pursuant to a written
constitution only. The bulk of the day-to-day workings of most governments is undertaken
through legislation. There is certainly a raft of legislation in every legal order, some of which
address aspects, say, of commerce or private law. What is of concern here, however, as a
component of the real constitution is more public law-oriented legislation, particularly laws
that operationalize or qualify the practice of democracy and its supporting rights.

Any statute touching on state power that is enacted and not struck down constitutes
not only a fount of authority but also a legitimate interpretation of the constitution in the
sense that it confirms that the legislature’s law-making power extends to enacting a statute
of that type. There is in this regard a vast amount of legislation that is part of a polity’s real
constitution to the extent that it is enforced. This includes “quasi-constitutional”, “organic”
and “super” statutes.39 Though constitutional authority is often imputed to “super” or “quasi-
constitutional” statutes, a wider array of legislative enactments constitutes the real
constitution.

Legislation as an important element of the real constitution is more prominent in

constitutional systems without official constitutions contained in one document. 40 Such
polities include the United Kingdom. Its Parliaments Act of 1911, though just an ordinary
law, has an important constitutional status being the formal instrument through which the
regulation of the relationship between the House of Lords and the House of Commons is
coordinated.41 Passed in 1910, this statute is said to have had “had a profound effect on
Parliament and politics in the 20th century”.42 It was enacted following a constitutional

39 See e.g. Willam N. Eskiridge, Jr and J Ferejohn, ‘Super-Statutes: The New American Constitutionalism,’
in Richard W Bauman and T Kahana (eds.) The Least Examined Branch: The Role of Legislatures in
the Constitutional State (Cambridge University Press, Cambridge, 2006).
40 See e.g. Fred Ridley, ‘Defining Constitutional Law in Britain,’ (1991) Common Law Review 101; Sir
Kenneth Keith, On the Constitution of New Zealand (1991) 44 (1) Political Science 28.
41 A P Dennis, “The Parliament Act of 1911” (1912) 6 (2) American Political Science Review 194.
42 See House of Lords, Living Heritage, House of Lords Reforms, Parliament Act, 1911,
<https://www.parliament.uk/about/living-heritage/evolutionofparliament/houseoflords/house-of-
crisis epitomised by the rejection of a budget submitted by the Liberal Government to the
Conservative-dominated Parliament. Among others, this statute sought to “remove the
power of the House of Lords to reject money bills, and to replace the Lords’ veto over other
public bills with the power of delay”.43 It also reduced the term of parliamentarians from 7
years to 5 years.44 Young, citing this piece of legislation together with the Parliament Act of
1946, has described them as being “part of the English Constitution because of what they
do, not because they have any formal markers that set them off from ordinary legislation.”45
Outside the United Kingdom, New Zealand’s State Sector Act 1988, Electoral Act 1993 and
the New Zealand Bill of Rights Act 1990, to mention a few, also serve as illustrations.46 In
Israel, the Basic Laws, including the Basic Law: Human Dignity and Liberty as well as the
Basic Law: Occupation of 1994 serve as examples of legislation with immense impact.47 In
describing the Canadian constitution, too, Kahana tells us that it is made up of “31 statutes
and orders”.48

The phenomenon of legislation forming part of the real constitution is not, however,
just a feature of societies that lack a monotextual formal constitution. In Germany, for
instance, though article 79 of its Constitution prohibits any form of “assessory/secondary”
constitution, this “does not by any means exclude the existence of ordinary legislation
which is constitutional in terms of substance, such as electoral law or the law on
citizenship”.49 In Finland also, though having a written constitution that came into force in
2000, its “Acts of Exceptions”, which are essentially outside the constitution, are the means
through which it is “possible to accept a violation of the core meaning of a constitutional

lords-reform/from-the-collections/from-the-parliamentary-collections-the-parliament-act/parliament-
act-1911/ > accessed 16 June 2020.
43 Ibid.
44 Ibid.
45 Young (note 23 above) at 411.
46 See Office of the General Governor, “The Constitution of New Zealand” available at
<https://gg.govt.nz/office-governor-general/roles-and-functions-governor-general/constitutional-
role/constitution> accessed 15 January 2020.
47 See Suzie Navot, ‘Israel,’ in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A
Comparative Study (London, Hart Publishing, 2011) 196-197.
48 T Kahana (note 26 above at 11).
49 J Woelk “Germany” in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A
Comparative Study (Oxford Hart Publishing, 2011) 143 at 145.
provision.”50 Similar examples from across the world exist, illustrating that statutes form part
of the real constitution even in jurisdictions with an official/written constitution.

Indeed, most written constitutions contain so-called “by law” clauses through which
some matters or details are left out to be implemented through ordinary legislation or for
various purposes.51 In this regard, Ginsburg and Dixon have commented that:

it is often the case that constitution-makers self-consciously choose not to bind their
successors. Instead, they often draft constitutional provisions in such vague language that
they do not bind their successors at all. Alternatively, they choose to defer decision-making
to the future by adopting “by law” clauses that explicitly delegate certain constitutional
questions to future legislatures.52

Through these kinds of “by law” clauses, formal constitutions confer upon ordinary
legislation normative force almost equal to that of the written constitution. In practice, these
kinds of statutes sometimes exist because the constitution explicitly requires them to be
enacted- though they could be created out of obvious necessity to implement constitutional
provisions. Examples include South Africa’s Promotion of Administrative Justice Act,53
which implements section 33 of its 1996 Constitution. Kenya’s Election Act, was enacted
pursuant to the 2010’s Constitution directive that “Parliament shall enact legislation to
provide for” inter alia, “the nomination of candidates” and “the conduct of elections and
referenda and the regulation and efficient supervision of elections and referenda”.54 The
enforceable content of the rights in the written constitution would therefore be found in
these statutes granted, as Ginsburg and Dixon have said, that (written) constitutional
language is often vaguely framed.55 In this regard, there are constitutionally required and
constitutionally supported statutes that are part and parcel of the real constitution to the
extent that they are enforced.

The importance of legislation as part of the real constitution is seen in the fact that,
following the TWD, the repeal of written constitutional provisions by some de jure one-

50 Sukksi Markku, ‘Finland’ in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A
comparative Study (Oxford Hart Publishing, 2011) 87 at 102.
51 Rosalind Dixon and Tom Ginsburg, ‘’Deciding Not to Decide: Deferral in Constitutional Design’’
(2011) 9 (3) International Journal of Constitutional Law at 636.
52 Ibid.
53 Act No 3 of 2000.
54 Article 82, Constitution of Kenya 2010.
55 Dixon and Ginsburg (note 51 above).
party states was accompanied by the enactment of ordinary legislation to allow, for instance,
the creation of political parties. Sub-Saharan Africa alone provides a host of illustrations. In
Tanzania, the enactment of the Political Party’s Act 1992 was followed by the amendment
of article 10 of its constitution.56 South Africa’s 1996 Constitution was accompanied by the
repeal of numerous (in)famous apartheid statutes.57 In some instances, no change to the
written constitution was undertaken as this was achieved through legislative repeal or
enactment. An example of this is Cameroon, whose multi-party democracy was restored
when the ruling party “passed several laws, notably the law governing political parties”,58
from December 1990 to early 1991, without corresponding formal constitutional change,
which only came later around 1996. In Eritrea, the introduction of multi-party politics in
2001 was also effected through a draft law, which was neither debated nor passed.59 It is
worth pointing out that some of these statutes with a constitutional effect may not be
enforced just as written constitutions in some set-ups are unenforced.

4.2.3 Judicial decisions

Courts, Dressel, Sanchez-Urribarri and Stroh wrote, “have become central to political life
throughout the world.”60 Their decisions or predispositions may be part or reflective of the
real constitution, depending on their enforcement and the legal traditions of the polity in
question.61 Though “case law” is often associated with common law jurisdictions, 62 judicial
decisions in general and the working of constitutional review bodies – as well as their
decisions – whether as part of the judiciary or not constitute an important part of the real
constitution. As Balkin put it, “common-law processes of precedent and tradition are
America’s real constitution”.63 In some jurisdictions thus, particularly where a democratic

56 Mohabe Nyirabu, ‘The Multiparty Reform Process in Tanzania: The Dominance of the Ruling Party,’
(2002) 7 (2) African Journal of Political Science 104; D Chipeta, Administrative Law in Tanzania a
Digest of Cases: A Digest of Cases (Mkuki Na Nyota Publishers, 2009) xxxvi.
57 Kritikasam SO Biavon, ‘The Post-Apartheid city: Hopes, Possibilities and Harsh Realities in David
Smith,’ (eds) The Apartheid City and Beyond: Urbanization and Social Change in South Africa 240.
58 David Mokam, ‘The Search for a Cameroonian Model of Democracy or the Search for the Domination
of the State Party: 1966-2006 (2012) 23 Cadernos de Estudos Africanos 85.
59 Ben Turner, The Statesman's Yearbook 2007: The Politics, Cultures and Economies of the World
(Springer, 2017) 437.
60 Björn Dressel, Raul Sanchez-Urribarri and Alexander Stroh, ‘The Informal Dimension of Judicial
Politics: A Relational Perspective,’ (2017) 13 Annual Review of Law and Social Science 1.
61 See Solum (note 23 above) at 103.
62 Vincy Fon and Francesco Parisi, ‘Judicial Precedents in Civil Law Systems: A Dynamic Analysis,’
(2004) Minnesota Legal Studies Research Paper No. 07-19 <http://dx.doi.org/10.2139/ssrn.534504>
accessed 10 June 2019.
63 Joel Balkin (note 3 above).
culture exists, whatever courts proclaim in the process of interpreting or enforcing the
constitution constitutes the real constitution.

In common law countries in particular, decisions of courts are considered to be part

of the formal sources of legal authority and what courts say can be, as already mentioned,
part of the real constitution. Until the South African Constitutional Court decided in 1995
through its famous decision in S v Makwanyane & Another,64 it was possible for capital
punishment to be imposed in that country. The Makwanyane judgment and not any
particular legislative or constitutional provision has consequently become the point of
reference for the question of the death penalty in South Africa and unless and until
Makwanyane is set aside, it is its position that matters on the issue. Also, before the 2005
decision of South Africa’s Constitutional Court in Minister of Home Affairs and Another v
Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs
and Others, the authority against the permissibility of same-sex marriage lay in ordinary
legislation. Fourie then became the reference point for actors in the constitutional order and
courtesy of it, Parliament passed the Civil Union Act to recognise and fulfil the right of same-
sex couples to marry. In the US, decisions such as Grutter v Bollinger (on race),65 Roe v
Wade (on abortion),66 and Obergefell v Hodges (on sexual orientation)67 can be likened to
South Africa’s Makwanyane and Fourie cases.

In a similar vein, the very practice of courts or judicial review institutions of

reviewing legislation or executive action as well as those institutions’ and other actors’
general understanding of the reach of their powers is also part of the real constitution. This
practice has flourished in some regimes, especially those that are said to have strong-form
judicial review, while in others it has not. In set-ups with strong-form judicial review, judges
operate under some sort of a “constitutional” understanding that they can venture into
matters that are considered to be in the competence of political institutions. In societies with
weak-form judicial review, judicial restraint in matters felt to fall in the domain of politics
is also a constitutional norm of a sort. Other than the form of judicial review in its strong

64 [1995] ZACC 3.
65 539 U.S. 306.
66 410 U.S. 113, (1973).
67 576 U.S. ___ (2015)
and weak sense, the general use of courts in certain spheres is also a part of a society’s real
constitution. As observed in section 4.2.1, courts in authoritarian regimes play strategic roles
that can be analogised to what constitutions do in those regimes. The instrumental roles that
these courts play could also be treated as part of those polities’ real constitution.

4.2.4 Conventions
Conventions are often considered to be part of the real constitution.68 They are practices of
political behaviour in use over a period of time and which are believed to have the force of
law. Vermeule describes them as “unwritten but obligatory constitutional custom or
norm”.69 Just like formal principles and legislation, constitutional conventions have been
said to play a significant role, particularly in parliamentary democracies. The Canadian
Parliament has, for instance, described the “no confidence” convention in these words:

The fact that the Prime Minster and the Cabinet are responsible to, or must answer to the
House of Commons for their actions is a fundamental characteristic of parliamentary
government. They must enjoy the support and the confidence of a majority of Members of
the House to remain in office. This is commonly referred to as the confidence convention.
This complex constitutional subject, [is] a matter of tradition that is not written into any
statute or standing Order of the House.70

Just like legislative enactments, conventions are more prominent in countries without
written constitutions, such as the United Kingdom and New Zealand, though they also exist
in other polities, too. In the United Kingdom, some of these conventions include that the
party that gets the majority of seats in the House of Commons is entitled to form a
government71 and that the Prime Minister always comes from the party with the majority of
seats in the House of Commons and therefore has command of that House of Parliament.72
The relationship between the Monarch and the Ministers is also governed by conventions,

68 Carlos Bernal, ‘Foreword- Informal Constitutional Change: A critical Introduction and Appraisal,’
(2014) 60 American Journal of Comparative Law 493.
69 A Vermeule, ‘Conventions in Court,’ (2013) Harvard Public Law Working Paper,
<http://dx.doi.org/10.2139/ssrn.2354491> accessed 30 June 2018.
House of Common, Procedure and Practice,
<https://www.ourcommons.ca/About/ProcedureAndPractice3rdEdition/ch_02_2-e.html> accessed
20 May 2019; See also, Nicholas A. MacDonald and JWJ Bowden, ‘No Discretion: On Prorogation
and the Governor General,’ Canadian Parliamentary Review 34, no. 1 (Spring 2011) at 7.
71 Ibid.
72 On conventions generally, see George Marshall, Constitutional Conventions: The Rules and Forms of
Political Accountability (1987: Oxford, Oxford University Press).
some being that the Monarch will always act in accordance with the advice of the Ministers
except under some exceptional cases.73 Outside the United Kingdom, and in New Zealand
in particular, the convention of collective cabinet responsibility is considered an important
part of the real constitution.74

These conventions are not, however, only part of the real constitution in countries
without a written constitution or in the commonwealth world. Concerning the United
States, for example, Vermeule notes that “it is a mistake to think that all constitutional rules
are written”.75 For him, “despite the existence of a written constitution – conventions are
essential to the operation of the U.S. constitutional regime”.76 In India, “a
convention…developed that the most senior judge of the Supreme Court was always
appointed the Chief Justice on vacation of office on superannuation or otherwise”.77
Elsewhere, in Canada, “the conventions of Cabinet confidence, confidentiality and
solidarity”, though unwritten in any statute, “play a key role in solidifying the powers of the
executive branch.’78 In Switzerland, too, a civil law jurisdiction, the practice that the
presidency of the collective body rotates yearly is a strong constitutional convention without
a formal underpinning norm and though Switzerland’s written constitution provides for
multi-party elections, this practice has resulted in the electoral system militating against the
formation of an opposition.79

Though conventions are generally adhered to, they are at times departed from. In
England for instance, there has been a convention that major parties do not always put up
an opponent when the Speaker is seeking re-election.80 Around 1988, candidates were
proposed to stand against Bernard Weatherill, contrary to this convention. This was done

73 E Sahin, ‘The Conventions of the United Kingdom and a New Written Constitution,’ Kings Student’s
Law Review, <https://blogs.kcl.ac.uk/kslr/?p=120> accessed 20 June 2019.
74 https://teara.govt.nz/en/constitution/page-2 last visited 15 June 2020.
75 Vermeule (note 69 above) at 3.
76 Ibid.
77 Mahendra Pal Singh in D Oliver and C Fusaro (eds) How Constitutions Change: A comparative Study
(2011, Oxford Hart Publishing) at 188. See also, Record Assn v Union of India, AIR 1994 SC 268.
78 Kahana (note 26 above) at 24.
79 CH Church and A Vatter “Opposition in Consensual Switzerland: A Short but Significant Experiment”
(2009) 44 (4) Government and Opposition 412 at 427.
80 See, UK Parliament, The Speaker and Elections (2016) available at
https://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentwork/offices-and-
ceremonies/overview/the-speaker/elections/ accessed 16 May 2018.
by both the Labour Party and the Social Democratic Party.81 Prior to the passing of the
Parliament Act 1911, Britain had been through a constitutional crisis that some feel was
orchestrated by the breach of a constitutional convention: that the House of Lords should
not reject a budget passed by the House of Commons.82

The traditional understanding is that conventions are not enforceable in courts of

law. This traditional view is often supported by citation of the eminent British scholar, AV
Dicey, to whom, conventions “are not enforced or enforceable by the Courts”.83 Their
judicial non-enforcement notwithstanding, according to this view, they “enjoy de facto
constitutional supremacy because the political culture [in countries such as Canada] has
rendered them binding.”84 What is contemplated therefore is that departure from
conventions attracts political consequences and even in cases where they are breached, this
is a matter of political expedience. This traditional view has, however, been challenged
and recent scholarship indicates that courts, especially in the commonwealth world,
recognize and also enforce constitutional conventions. Albert, Perry and Ahmed argue in
this regard that:

Commonwealth courts go beyond simply recognizing the existence of conventions. They

employ conventions in legal reasoning towards the resolution of a dispute. More
significantly, courts do what the dominant view says they cannot: they enforce conventions
in order to resolve legal disputes before them. These juridical developments arise out of
recent conflicts which have destabilized the traditional view that Commonwealth courts do
and should recognize, employ, but never enforce conventions.85

They go on, in a follow-up article, to describe cases in the United Kingdom and even in
other countries , such as in India, where courts either simply recognised some of these
conventions or went so far as to enforce them.86 As elements of the real constitution though,

81 The Telegraph, Speakers who seek re-election have been opposed (14 December 2009) available at
https://www.telegraph.co.uk/comment/6803742/Speakers-who-sought-re-election-have-been-
opposed.html accessed 16 May 2018.
82 Ibid.
83 Roger E. Michener, “Foreword” (to) A.V. Dicey, Introduction to the Study of the Law of the
Constitution, 15 (ed. Roger E. Michener, Liberty Fund 1982), available at
http://files.libertyfund.org/files/1714/Dicey_0125_EBk_v7.0.pdf accessed 20 June 2020.
84 Kahana (note 26 above) at 13.
85 F Ahmed, R Albert, A Perry, ‘Judging Constitutional Conventions,’ (September 26, 2017). Oxford Legal
Studies Research Paper No. 59/2017.
<https://ssrn.com/abstract=3043190http://dx.doi.org/10.2139/ssrn.3043190> accessed 7 November
2020.
86 F Ahmed, R Albert and A Perry, “Enforcing Constitutional Conventions” (2019) 17 (4) International
Journal of Constitutional Law 1146–1165.
what matters is whether they have normative force in practice, i.e. whether they are
generally adhered to by political actors, whether or not enforced by courts.

4.2.5 Informal powers and informal politics

The category of informal powers and informal politics is a vast and unwieldy sub-category
of elements of the real constitution. “Informal powers” refers to authority whose foundation
either lies outside the written constitution or is in excess of what has been prescribed. In the
case of the latter, the surplus authority has an extra-textual foundation. Personality cults,
kinship, social relations, religion, economic interests, brute force, de facto control of the
security apparatus and charisma are common exemplifications of informal powers. A cult
of personality is in this regard quite a common fount of informal power. As Adrian Teodor
Popan explains, heroic images are at times created of individuals, through the media and
other forms of propaganda, to generate worship-like behaviour towards them.87 Examples
of individuals, especially dictators, who deploy this type of power abound. They include
Zaire’s Mobutu, who “Africanised” his name to Mobutu Sese Seko Nkuku Ngbendu Wa Za
Banga, meaning “The all-powerful warrior who, because of his endurance and inflexible
will to win, goes from conquest to conquest, leaving fire in his wake”. 88 Elsewhere, in
Yugoslavia, Josip Broz Tito was considered “peasant chief, protector and the legendary
hero”.89

Closely related to personality cults and charismatic authority is what Freedom House
describes as the “Men Behind the Scenes.”90 These are an individual or group that “holds
no elected office or rules from a post vastly inferior to [their] real status.”91 They are,
however, very influential despite being beyond the reach of voters, public information or
even the formal law itself.92 They include “powerful business magnates or security service

87 Adrian Popan Teodor (August 2015) ‘The ABC of sycophancy: structural conditions for the emergence
of dictators' cults of personality,’ The University of Texas: 196–213
http//doi:10.15781/T2J960G15. hdl:2152/46763 accessed 20 June 2019.
88 J Daniszewski and A M Simmons, Mobutu, Zairian Dictator for 32 Years, Dies in Exile, Los Angeles
Times, 8 September 1997 https://www.latimes.com/archives/la-xpm-1997-sep-08-mn-30058-
story.html accessed 20 June 2019.
89 Apor B, Behrends J, et al, The Leaders Cult in Communist Dictatorships: Stalin and the Eastern Bloc.
(2004: Palgrave Macmillan)
90 Freedom House, Nations in Transit 2018: Confronting Illiberalism' (Freedom House, 2018) available
at https://www.democratic-decay.org/bibliography accessed 20 June 2019.
91 Ibid.
92 Ibid.
chiefs who exercise an outsized influence on politics”.93 An example includes Poland’s
Jarosław Kaczyński, who is a mere Member of Parliament, sitting in no committee but whose
influence as the chairman of the ruling Law and Justice (PiS) Party is pronounced and “his
actual dominance … widely known” in the Polish political sphere.94 Elsewhere, billionaire
Bidzina Ivanishvili in Georgia or the Gupta family in South Africa are examples of
individuals or groups whose informal powers can be said to be part of the real constitution.95

Other than informal powers, there is also informal politics. The distinction made
between formal and informal politics has links with formal and informal markets: formal
markets are regulated by the state and occur within state rules.96 Eilo Wing-Yat Yu has
distinguished between formal and informal politics in the following terms:

Formal politics is defined as political participation under “rules and institutions” while
informal politics is a kind of “conventions and codes behaviour” in the political sphere, such
as cronyism and guanxi networks. Both kinds of politics are interacting and functionally
inseparable in a political system.97
Informal politics are thus those that mostly occur outside formal political structures, such as
the legislature, but often find strong expression (and influence) in (and over) formal
institutions and politics. Their identifiable form ranges from demands of social and interest
groups, such as civil society and church-based organisations, to intra- and extra-party
politics. Informal establishments, such as traditional institutions, could also fall into this
category.

Informal politics play very pronounced roles, particularly in contexts characterised

by non-enforcement of formal rules. In the context of Sub-Saharan Africa, where there is
admittedly an enforcement shortfall, Patrick Chabal and Jean-Pascal Daloz remark that
“political action operates … largely in the realms of the informal, uncodified and unpoliced
– that is, in a world that is not ordered in the sense we usually take our own polities in the

93 Ibid.
94 Ibid.
95 Neil Arun, State capture: Zuma, the Guptas, and the sale of South Africa, BBC, 15 July 2019 available
at https://www.bbc.com/news/world-africa-48980964 accessed 12 June 2020.
96 See, S Radnitz, Informal Politics and the State (2011) Review Article,
<http://faculty.washington.edu/srad/wordpress/wp-content/uploads/2014/07/Informal-Politics.pdf >
accessed 12 June 2020.
97 E Wing-Yat Yu (2007) ‘Formal and Informal Politics in Macao Special Administrative Region Elections
2004–2005,’ (2007) 16 (52) Journal of Contemporary China 417.
West to be”.98 In this regard, two facets of informal politics in the African context stand out:
first is identarian (such as ethnicity, race and religion) and second, patronage
(neopatrimonial) politics. 99 Regarding the former, ethnicity is perhaps more prominent in
most domains. Tomchak conducted an audit of ethnic conflict and the politicisation of
ethnicity in Sub-Saharan Africa, and observed as follows: 100

The average ethnic saliency across all countries for 2016 was 0.4207 with a standard
deviation of 0.1273. The fact that the average value was so high confirms the bias that was
presented as a potential worry concerning ethnic saliency wherein discussions of Sub-
Saharan Africa. It means that nearly half of all news coverage on the continent involves the
discussion of ethnicity.101
Another case in point is supplied by Eifeit, Miguel and Posner.102 They draw on data from
over 35,000 respondents in 22 public opinion surveys in 10 countries and remark that
politicians find it advantageous to “play the ethnic card” as a means of mobilizing supporters
to acquire or retain political power.’103 On the other hand, patrimonialism and neo-
patrimony can be core aspects of the political economy in that they shape individual and
popular understandings of the relationship between individuals or communities and the
state. In undemocratic set-ups, personal networks are exploited as a means of accessing
power with dividends expected if the power is acquired or retained. Rotberg has illustrated,
for instance, how Robert Mugabe (Zimbabwe), Teodoro Obiang (Equatorial Guinea) and
Isaias Faki (Eritrea) pursue(d) class rather than collective good through their personal
relationships.104 It is this form of politics that Hale profiled as “patrimonialism” whose core
characteristic is that political exchanges tend to be characterized more by punishment and
rewards meted out to individuals than policies that are not directed at an individual but

98 P Chabal, P and JP Daloz Africa Works, Disorder as Political Instrument (James Curry, Oxford, 1998)
99 For an overview on the influence of ethnicity in Africa, see D Welsh, “Ethnicity in Sub-Saharan Africa”
(1996) 72 (3) Ethnicity and International Relations 477-491.
100 J Tomchak, “Re-Examining Ethnic Conflict in Sub-Saharan Africa: A New Framework for
Understanding the Politicization of Ethnicity” (2017)
http://politicalscience.yale.edu/sites/default/files/tomchak_joseph.pdf accessed 15 June 2017.
101 Ibid, at 57.
102 B Eifert, E Miguel, And DN ‘Posner, Political Competition and Ethnic Identification,’ (2010) 54, (2)
American Journal of Political Science 494–510.
103 Ibid.
104 Robert Rotberg, Africa Emerges: Consummate Challenges, Abundant Opportunities (Polity Press,
2013).
broader society.105 He adds that it can be conceived as a “collective action problem” in
which “individuals understand politics as an arena of personal wealth and distribution.”106

Informal politics may not be necessarily pathological considering that this element
may spawn or be shaped by civil society organisations or other pressure groups, such as
trade unions. In this regard, Radnitz has argued that informal politics can be constructive
and do not always bear negative or “parasitic” connotations.107 In terms of its positive value,
he argues that informal politics can fill the gaps and weaknesses of formal institutions and
also that some informal institutions of accountability can actually substitute for defective
formal institutions.108 Assessing the domains of informal politics in the United States, for
instance, Azari and Smith have theorised as follows about the import of informal politics:

they complete or fill gaps in formal institutions, coordinate the operation of overlapping (and
perhaps clashing) institutions, and operate parallel to formal institutions in regulating
political behaviour.109

The position taken by Azari and Smith is also adopted by Dressel, Sanchez- Urribarri and
Stroh, who explain the profound role that informal networks play in judicial politics.110 All
in all, informal politics, to the extent that they actually shape the working of institutions,
including their efficacy, are clearly an element of the real constitution.

4.3 Typologies of real constitutions

Cumulatively, when the various elements of the real constitution are enforced, they create
constitutional conditions which, as already mentioned, can be adjudged as being
democratic, authoritarian or hybrid.111 The nature of a regime, as delineated by political
scientists, should correspond – this thesis contends – to one or the other of these ideal types.

105 Hale ‘The Informal Politics of Formal Constitutions,’ in T Ginsburg & A Simpser (eds) Constitutions in
Authoritarian Regimes (Cambridge University Press, 2014) at 220.
106 Ibid.
107 Scott Radnitz, ‘Informal Politics and the State,’ (2011) Comparative Politics 357.
108 Ibid.
109 See also, Julia R. Azari and Jennifer K. Smith, ‘Unwritten Rules: Informal Institutions in Established
Democracies,’ (2012) 10 (1) Political Perspectives 37.
110 Björn Dressel, Raun Sanchez-Urribarri, and Alexander Stroh, ‘The Informal Dimension of Judicial
Politics: A Relational Perspective,’ (2017) 13 Annual Review of Law and Social Science 413-430.
111 See Larry Diamond, ‘Thinking About Hybrid Regimes,’ (2002) 13 (2) Journal of Democracy 21-35; J
Brownlee “Portents of Pluralism: How Hybrid Regimes Affect Democratic Transitions” (2009) 53 (3)
American Journal of Political Science 515.
Hence, a polity that is democratic should have a corresponding real democratic constitution
and vice versa. For purposes of this study, countries in Sub-Saharan Africa can thus be said
to have either democratic, hybrid or authoritarian constitutions. It is important to note,
however, these are broad categorisations and that there are other classificatory schemes that
refine these ideal types.112

At the dawn of the TWD, as was explained in Chapter 1, most countries in SSA had
authoritarian constitutions. After the TWD, some remained authoritarian or relapsed into
authoritarian constitutions. This is the first outcome of interest that is investigated. In
normative terms, societies with this form of constitution can assume different forms and
could be neopatrimonial, bureaucratic or populist. Classified in terms of electoral
democracy, they could also be closed (without elections) or competitive (with elections).
Neopatrimonial regimes are, according to Brownlee, “those in which the leader treats the
state as his private fiefdom and gives only rhetorical attention to formal political
institutions”.113 Examples of this kind of regime include Libya under Muammar Gadhafi or
Tunisia under Zine El Abidine Ben Ali.114 Bureaucratic regimes, on the other hand, are
epitomised by and associated with military authority to the extent that they are [often] not
mobilised on popular basis.115
The common prototype of an authoritarian real constitution is what can be dubbed
a “popular authoritarian regime” whose key attributes include:

112 See for example the classifications of Dieter Grimm’s “Constitutions as Expressions of Political Ideas”
which include, “Liberal Non-Democratic” and “Non-Liberal Democratic” Constitutions describing
certain forms of regimes, Dieter Grim, “Types of Regimes” in M Rosenfeld, A Sajó The Oxford
Handbook of Comparative Constitutional Law (Oxford University Press: 2012) 98.
113 Jason Brownlee, 2002, ‘…And Yet They Persist: Explaining Survival and Transition in Neopatrimonial
Regimes,’ (2002) 37 (3) Studies in Comparative International Development 35 at 37.
114 Ibid.
115 See David Collier ‘Bureaucratic Authoritarianism,’ in J Krieger (editor), The Oxford Companion to
Politics of the World, (2nd ed, 2001: Oxford, Oxford University Press) 93-95. Collier remarks that
“Bureaucratic authoritarianism has thus been understood as a form of bureaucratic and technocratic
military rule that seeks to curtail popular mobilization and is built on a political coalition and a policy
orientation that entails strong ties to international economic actors … As a subtype of authoritarian
rule, it may be distinguished from other subtypes: populist authoritarianism, which promotes popular
mobilization rather than demobilization; and traditional authoritarianism, which is found prior to any
extensive popular mobilization’ at 94.
 Mass Line ideology, strong interpersonal trust and rich social capital, individual political
activism and political contention, weak political institutions and an underdeveloped civic
society, an often paranoid and highly responsive government, and strong regime support.116

Bureaucratic and neopatrimonial regimes have become rare, but populist regimes are, as
suggested, quite common in the modern age.117 Gino Germani suggested in his 1978 book
that there exists a “modern [form of] authoritarianism” which is essentially populist. Its core
attributes are that it “does not reduce individuals to passive subjects…” and “its aim is not
depoliticisation (though this may occur), but politicisation according to a certain specific
ideology.”118

In general, and whatever its form, a society could be said to have an authoritarian
real constitution, if (a) it is governed by a privileged dominant group or person who imposes
their ideology often using violence and coercion to ensure that policy choices it single-
handedly makes are not subjected to criticism; 119 (b) it experiences limited pluralism and
dissent is proscribed except if it does not pose a threat to the regime or its policy choices;
120 (c) power in such states is often exercised without any accountability to the citizens and
even though it may respond to public sentiments; 121 (d) democracy is stifled, political
opposition is at times proscribed or exists for formal purposes as long as it does not pose a

116 Wenfang Tang, Populist Authoritarianism: Chinese Political Culture and Regime Sustainability (New
York, Oxford University Press, 2016).
117 Gino Germani, Authoritarianism, Fascism, and National Populism (New Brunswick: Transaction
Books, 1978)
118 Ibid, at 10.
119 See, Hans-Joachim Lauth ‘Authoritarian Regimes’ (2012) InterAmerican Wiki: Terms - Concepts -
Critical Perspectives <http://www.uni-bielefeld.de/cias/wiki/a_Authoritarian%20Regimes.html>
accessed 15 June 2018 ; JJ Linz, "Totalitarian and Authoritarian Regimes” in FJ Greenstein et. al. (eds)
Handbook of Political Science, Volume 3, Macropolitical Theory (1975: Addison-Wesley, Mass) 175–
411; JJ Linz “An Authoritarian Regime: The Case of Spain” in E Allard and Y Littunen (eds), Clevages,
Ideologies and Party Systems (1964, Helsinki: Transactions of the Westermarck Society) Linz wrote
that authoritarian systems are “‘…political systems with limited, not responsible, political pluralism,
without elaborate and guiding ideology, but with distinctive mentalities, without extensive nor
intensive political mobilization, except at some points in their development, and in which a leader or
occasionally a small group exercises power within formally ill-defined limits but actually quite
predictable ones’ at 225.
120 Roberto Niembro, ‘Conceptualizing Authoritarian Constitutionalism. A Latin American View”
Völkerrechtsblog, 17 July 2017 <https://voelkerrechtsblog.org/articles/conceptualizing-authoritarian-
constitutionalism/> accessed 16 August 2019.
121 Ibid.
threat to the regime; and (e) in cases where elections are held periodically, they are won on
the basis of “massive victory”.122

The second set of countries are those that partially transitioned and possess what is
delineated as a “hybrid constitution”. This category of constitution is the second outcome
of interest. Whether conceived as a bridge from democratic to authoritarian regime or a
destination in itself, a real constitution is hybrid if it is neither fully democratic nor
authoritarian. In the political science literature , the label “hybrid regime” is a reaction to
the “confusion” occasioned by the “blurred boundary” between authoritarian and non-
authoritarian regimes.123 A hybrid constitution thus describes the constitution of political
establishments at times delineated as “semi-authoritarian regimes” or “competitive/electoral
authoritarian regimes”.124 Semi-authoritarian regimes are distinguishable from
competitive/electoral authoritarian regimes in that for the latter, the place and role of
elections is more pronounced than in the former. The semi-authoritarian ones “combine
rhetorical acceptance of liberal democracy, the existence of some formal democratic
institutions, and respect for a limited sphere of civil and political liberties with essentially
illiberal or even authoritarian traits”.125 These are characterised by more than elections and
include, as the section that follows shows, dominance of a political outfit that controls policy
formulation. Electoral/competitive authoritarian regimes, on the other hand, are more about
the quality of democratic elections and as such, electoral authoritarian regimes are
essentially civilian ones that host democratic institutions that permit real competition for
power, but for which, according to Way and Levitsky, “the political playing field is so
heavily tilted in favor of incumbents that the regime cannot be labelled democratic”. 126 In
virtually all cases though, electoral authoritarian regimes are semi-authoritarian.

Hybrid regimes and the constitutions that condition them combine democratic traits,
such as direct and frequent elections, with autocratic ones, such as strategic repression of

122 See, Daniela Donno, ‘Elections and Democratization in Authoritarian Regimes,’ (2013) 57 (3)
American Journal of Political Science 703.
123 Leah Gilbert and Payam Mohseni ‘Beyond Authoritarianism: The Conceptualization of Hybrid
Regimes,’ (2011) 46 Studies in Comparative International Development 270 at 271.
124 Marinna Ottaway, ‘Democracy Challenged: The Rise of Semi-Authoritarianism’ (Carnegie Endowment
for International Peace, Washington, DC, 2003) 3.
125 Ibid.
126 Steven Levitsky, and Lucan A. Way, ‘International Linkage and Democratization,’ (2005) 16 (3) Journal
of Democracy 20-34.
democracy-supporting rights. It is these kinds of regime that Tushnet depicts as embracing
“authoritarian constitutionalism”.127 He uses Singapore to exemplify regimes that are
normative in their own distinct sense.128 Like their authoritarian counterparts, they are
[often] controlled by a dominant political party with little room for challenging any policy
decisions that they make and this is what – according to Tushnet – makes them authoritarian.
On the other side, though, such regimes do not obviously resort to arbitrary arrest of
opposition, rather they can sanction them using other measures, such as claims for breach
of financial/tax regulations.129 He explains, for instance, that in Singapore, bankruptcy laws
are at times used to inhibit opposition participation in politics.130 They permit reasonably
open discussion and criticisms of state policies, hold periodic elections that are reasonably
free and fair, combining “high-intensity coercion” and “low-intensity coercion” to ensure
that the dominant party prevails in elections.131 Unlike their authoritarian counterparts, they
are reasonably conscious of public opinion and can change their policy choices in response
to public opinion for the sake of regime legitimation and preservation. They also
accommodate dissent through various mechanism, such as co-option. Last, in a hybrid
constitutional regime, courts are reasonably independent and though they might at times
reject important regime initiatives, they are not oblivious of and are at times sensitive to
interests of the state.132

The last outcome of interest is countries that successfully transitioned and can be
said to have a democratic constitution. A polity is assumed in this thesis to have a
democratic constitution if, relatively speaking, it has several of the following traits: it (1) is
not controlled by a dominant individual or party that determines all relevant public policy
choices133 (2) protects political rights and civil liberties;134 (3) allows for open criticism of
the ruling regime without fear of censure; (4) is a self-governed society in the sense that it
conducts free and fair elections; (5) does not base policy on regime preservation or some

127 Jean-François Gagné, ‘Hybrid Regimes, Oxford Bibliographies,’ (Reviewed 2017)

<http://www.oxfordbibliographies.com/view/document/obo-9780199756223/obo-9780199756223-
0167.xml> accessed on 20 March 2019.
128 Mark Tushnet, (note 30 above).
129 Ibid.
130 Ibid.
131 Ibid.
132 Ibid.
133 Ibid.
134 Ibid.
ideology that is used as a basis for the consolidation of power;135 (6) is sensitive to public
opinion which shapes public policy for public-interested reasons; (7) has courts that are
independent and enforce the rule of law independently without interference; 136 and (8)
respects liberal democracy as a political ideology and allows it to influence the choice of
leaders and policies. The above criteria are very expansive and are not intended to function
in this thesis as the observable features of a democratic real constitution. Instead, what is
meant by a democratic real constitution is the presence of free and fair elections held
periodically with the protection and promotion of democracy-supporting rights. In the
segment that follows, the idea of real constitutional change is explained in greater detail.

4.4 Real constitutional change

Real constitutional change was defined in Chapter 1 to mean transformation from one ideal
type of a real constitution to another. For this change to occur, elements producing the
particular type ought to be changed, a phenomenon that could occur through “enactment,
acceptance, explicit derogation or abrogation, implicit derogation or through abrogation,
interpretation, infra-constitutional mutation and desuetude”.137 These are essentially the
main ways through which change to constitutional norms occurs. Consequently, where real
constitutional change has occurred, it should be assumed that certain elements of the real
constitution, written or unwritten, have either been expunged or altered. Through real
constitutional change, a political order can become more authoritarian or more democratic
resulting in six case scenarios that fall under two broad categories: democratic constitutional
change and authoritarian constitutional change, the former representing evolution towards
democracy and the later regression from it. Is summary these scenarios are:

A. Change towards a democratic real constitution

Authoritarian constitution> democratic constitution

Authoritarian constitution>hybrid constitution

Hybrid constitution> democratic constitution

135 Ibid.
136 Ibid.

137 Carlos Bernal, ‘Foreword- Informal Constitutional Change: A Critical Introduction and Appraisal,’
(2014) The American Journal of Comparative Law 493.
 B. Change towards an authoritarian real constitution
Democratic constitution> authoritarian constitution

Democratic constitution > Hybrid constitution

Hybrid constitution> authoritarian constitution

Each of the elements of the real constitution has its own way of mutating, though a change
to some elements can trigger a change in other elements, too. For instance, a quasi-
constitutional statute could be struck down by a court or repealed by a legislative body and
its formal enforcement would cease. Judicial decisions could be overturned or departed
from, too. Granted the special place that a written constitution occupies in a legal order, its
change could affect the other elements, such as legislation that enforced the changed
aspects. Implicit in the definition of real constitutional change adopted is the assumption
that change to elements of the real constitution is not real constitutional change if it does
not result in a change from one ideal type to another. There are instances where a formal
constitution is substituted but without any change being registered in the real constitution.
In France, for instance, the administrative structures remained intact in spite of rampant
changes to the written constitution, hence Boyron’s description of the evolution of the
French system as “change with continuity”.138

Explanations behind real constitutional change are yet to be theorised

comprehensively, if at all. This could be, as mentioned, because of devotion to formal
constitutions when studying phenomena such as constitutional change and related themes
– endurance, stability and resilience.139 The triggers to real constitutional change, though,
seem to be analogous to those that drive formal change and which were theorised by
Donald Lutz to be the need to modify the political system:140

138 Sophie Boyron, ‘France’ in in Dawn Oliver and Carlo Fusaro (eds) How Constitutions Change: A
Comparative Study (Oxford Hart Publishing, 2011) 115 at 142.
139 Elkins et al, (note 4 above); G L. Negretto (note 1 above); EB Rasch and R D. Congleton (note 194
above); H K. Gerken (note 1 above) Melissa Schwartzberg (note 1 above); R Albert, X Contiades, A
Fotiadou (note 1 above); and CM Fombad (n 1 above).
140 Donald S Lutz, ‘Towards a Theory of Constitutional Amendment,’ (1994) 88 (2) The American Political
Science Review 355-370.
 a. As a result of changes in the environment within which the political system
operates (demographic, technology, economics etc.);
b. Changes in the value system distributed across populations;
c. Unwarranted or unexpected institutional effects; and
a. The cumulative effect of decisions made by the executive, judiciary and
legislature.
As observed, real constitutional change could also occur for these reasons and some of the
intuitively felt motives such as the need to oust an autocratic leader can be explained, say,
by reasons (a) and (b).

The power that causes real constitutional change is exercised by actors, who could
be interest groups, power seekers or holders or external actors. It is contended in this regard
that real constitutional change towards a democratic constitution occurs when certain
conditions exist, which are supposed at this stage to include change to incumbent power
holders, existence of effective democracy-demanding groups and promotion of democracy
by international actors. The success or failure of these actors is in turn facilitated or impinged
by underlying often context-unique structural conditions obtaining in the polity in question.
These conditions could themselves be the fount of endogenous or exogenous forces
required to trigger real constitutional change. Because of the centrality and legitimating role
of written powers, change to formal aspects of the real constitution, it is contended, may
result in real constitutional change or consolidation. This is also the case with judicial
review. In the sections that follow, each of these conditions of interest that will be used to
investigate constitutional change outcomes after the TWD in SSA are elaborated.

4.4.1 Actor-based conditions

Constitutional norms do not come into existence nor do they evolve on their own; they are
not self-executing either. They are brought into being by actors within or outside the
political order to propagate or preserve certain interests. Real constitutional change, too, is
either facilitated or foiled by actors who either initiate the process, resist it or shape its
trajectory. Benefactors of particular constitutional arrangements would want those
arrangements to be stable just the same way that those dispassionate about the arrangement
would want it ousted if not altered. In this regard and as mentioned, the incumbent power
holders, democracy-demanding groups as well as the international community or actors are
felt to be, broadly speaking, the usual drivers of real constitutional change. How they
contribute to this endeavour is discussed in the sections that follow under different
subheadings.

4.4.1.1 Change to incumbent power holders

When Richard Snyder theorized change to neopatrimonial dictatorships, especially in South
America, he saw the ultimate solution for such polities as lying in the unravelling of
“dictators’ patronage networks and a corresponding increase in exclusion of political
elites”141 Melkinsburg too contend in their research on formal constitutional longevity that
“changes in leadership will increase the risk of constitutional change”.142 An inference to
be drawn from these standpoints, even though the Melkinsburg one focuses on the text, is
that a change to incumbent power holders is likely to midwife real constitutional change.
Put differently, unless political elites see themselves out of power or actually leave power,
it is unlikely that real constitutional change can be registered especially towards a
democratic constitution. Conversely, real constitutional change towards an authoritarian
constitution could be fostered in a bid to keep power holders in authority or when as a
matter of fact they remain in power. Put differently, it should be expected that authoritarian
constitutionalism would consolidate in environments where change to incumbents is
unlikely, while consolidation of a democratic constitution would also occur in contexts
where there is a circulation of leadership, especially through a democratic process. As an
example, it was not until the ouster of Zine El Abidine Ben Ali in 2011 that democratic
change begun to take place in Tunisia.143 Though democratic transition does not depend
solely on change to incumbents, and in fact incumbents can change without a
corresponding real constitutional change,144 it is hardly possible to see real constitutional
change occur as this is both a cause and an outcome.

The case made here is not that a mere change to incumbent power holders results
into real constitutional change towards a democratic constitution. As Way and Levitsky have

141 Richard Snyder, ‘Explaining Transitions from Neopatrimonial Dictatorships,’ (1992) 24 (4)
Comparative Politics 379.
142 Elkins et al (note 4 above) 116.
143 YH Zoubir, ‘The Democratic Transition In Tunisia,’ (2015) 1 Conflict Trends,
<https://www.accord.org.za/conflict-trends/democratic-transition-tunisia/ > accessed on 18 June
2019.
144 Michael Bratton, Nicholas van de Walle, Democratic Experiments in Africa: Regime Transitions in
Comparative Perspective (Cambridge University Press, 1997) 206.
cautioned, “leadership is far less important than international and domestic structural
variables in shaping” of “regime trajectories”.145 While change to incumbent power holders
may hold in certain domains, such as Fiji in 2006 following the Josaia Voreqe Bainimarama-
led military coup, in other contexts it does not bear fruit, an example being Egypt. The ouster
of Hosni Mubarak, an unqualified version of this supposition would say, should have led to
a democratic constitution. Instead, Egypt has “has never had real experience with
democracy”146 even after that ouster. As Oraby puts it:

With the toppling of Egypt’s long-standing authoritarian leader Hosni Mubarak, it appeared
to have made it to the heart of the region. Today, however, little of this optimism remains,
leading many in the West to question what happened to Egyptian democracy. The answer is
simple yet unpleasant: democracy never really made it to Egypt.147

The case of Egypt after Mubarak falls into three scenarios that qualify this supposition. The
first one arises where change to incumbent power holders occurs through military ouster
without subsequent handover of power to a civilian body. A case in point is the pre-1989
African takeovers mentioned in Chapter 1. Where this occurs in a military-civilian sort of
arrangement, or where power is subsequently handed over to a civilian government, real
constitutional change could occur. It for this reason that some have claimed that coups are
good for democracy. In Derpanopoulos et al’s view:

Recent research, however, suggests that the consequences of coups may have changed since
the end of the Cold War. Not only have coups declined in frequency, but those that occur
are increasingly followed by competitive elections. From 1950 to 1989, 14% of successful
coups against dictatorships led to democracy within two years, while 40% did so from 1990
to 2015.148
A second situation is where the main political figure remains in power when those under
him are changing. Zimbabwe’s Robert Mugabe is a case in point. He was President from
1987 to 2017 at a time when Zimbabwe had three first Vice Presidents: Simon Muzenda

145 Steven Levitsky and Lucan Way, Competitive Authoritarianism: The Origins and Dynamics of Hybrid
Regimes in the Post-Cold War Era, 74
<http://homes.ieu.edu.tr/~ibagdadi/INT435/Readings/General/Levitsky-Way-Stanford%20-
%20Competitive%20Authoritarianism.pdf> accessed 18 June 2019.
146 Farah Oraby, ‘What Really Happened to Egyptian Democracy? (2018) Berkeley Political Review,’
<https://bpr.berkeley.edu/2018/04/30/what-really-happened-to-egyptian-democracy/> accessed on
18 June 2019.
147 Ibid.
148 George Derpanopoulos et al ‘Are coups good for democracy?’ (2016) (January-March) Research and
Politics 1–7 2.
(1987-2003); Joyce Munjuru (2004- 2013) and Emerson Mnangagwa (2014-2017).149 The
third scenario, related to the second, is a case in which, because of continuous assimilation
of incoming political elites, a change of the main political figure leaves everything almost
as intact as it was before his or her exit, Zimbabwe still being an illustration. The military
ouster of Mugabe in 2017 was not accompanied by real constitutional change because, one
may argue, the takeover was by a ZANU-PF and Mugabe-bred politician and former vice
president: Mnangagwa.150 Power transfer in Angola, too, from Dos Santos to João Manuel
Gonçalves Lourenço under Movimento Popular de Libertação de Angola – Partido do
Trabalho, MPLA following Dos Santo’s resignation is also an illustration of this third
scenario.151 The common denominator in this third scenario is a strong party system not
necessarily held together by a single political figure. In some instances, the protagonist
could remain behind the scenes as a source of formal power. Dos Santos, for instance,
remained the party leader after the 2017 elections.152

A change to incumbent power holders could occur in various ways. In a democratic

constitutional order, this happens through an election or compliance with term limits. In
other setups, especially, authoritarian ones, change to incumbent power holders could
occur through civil uprising (such as Tunisia in 2011 that led to the removal of Ben Ali);
military ouster (such as the removal of President Marc Ravalomanana in Madagascar in
2009); death (Sani Abacha in Nigeria in 1988), resignation (Ahidjo in Cameroon in 1982)
or through the forced handover of power (Yumjaagiin Tsedenbal in 1984 in Mongolia). On
rare occasions also, especially where the incumbent political actors are assured of immunity
or amnesty, they could subject themselves to democratic elections and lose power through
an election (Kerekou in Benin in 1992). Where a peaceful takeover of power from these
leaders falls outside the three contemplated case scenarios, a transfiguration of the real
constitution most likely occurs, Tunisia being an illustration. In all circumstances, though,
a change to the actor(s) bears prospects for real constitutional change. In Angola for

149 Mediel Hove, ‘When a Political Party Turns against Its Cadres: ZANU PF Factional Infightings 2004-
2017,’ (2019) 12 (2) African Security 200; Lewanika, Zimbabwe and Zanu-PF’S Continuing
Hegemony: Meet the New Boss, Same as the Old Boss? LSE Africa blog,
<https://blogs.lse.ac.uk/africaatlse/2017/12/13/zimbabwe-and-zanu-pfs-continuing-hegemony-meet-
the-new-boss-same-as-the-old-boss/> accessed 18 June 2019.
150 Ibid.
151 David Pilling, ‘João Lourenço has a chance to transform Angola,’ Financial Times, 10 October 2018.
152 Z Matsimbe and N Domingos, ‘Angola’s 2017 Elections and the Start of A Post-Dos Santos Era,’ (2018)
Journal of African Elections 1 at 2.
instance, the “resignation” of Dos Santos is said to have “offered some hope for political
change”.153 In hybrid-constitutional polities, there is always a possibility for change to the
incumbent power holders through democratic means. The most feasible ways through
which this can occur is through ruling party disintegration154 or cases where there is a strong
and unified opposition.155

It is consequently thought that a change to incumbent power holders, in an

authoritarian/hybrid-constitutional society, is likely to push for real constitutional change
towards a democratic constitution. The assumption that underlies this claim, which is
investigated in the case study chapters and subsequently refined, is that in
authoritarian/hybrid-constitutional societies, especially the neopatrimonial ones, patronage
networks stand exposed when the fulcrum of these networks – the incumbent -- gives way.
Hybrid-constitutional polities would for their part most likely experience real constitutional
change towards authoritarianism if this condition is absent. Last, in democratic
constitutional societies, the reality that power is often circulated is a viable condition for
consolidation.

4.4.1.2 Existence of effective democracy-demanding groups (DDGs)

Pressure, from democracy-demanding groups can drive real constitutional change from
authoritarian set-ups and can also guard against change to an authoritarian constitution. A
relationship has, in this regard, been said to exist between democratic transitions and
consolidation, one the one hand, and efforts of democracy-demanding groups, on the
other.156 When Grigorij Mesežnikov’s theorised the Taiwanese transition, he observed in
this regard as follows:

153 Ibid.
154 S Levitsky and L Way ‘Beyond Patronage: Ruling Party Cohesion and Authoritarian Stability,’ (2010)
APSA 2010 Annual Meeting Paper at 2.
155 Andreas Schedler, ‘Elections Without Democracy: The Menu of Manipulation,’ (2002) 13 (2) Journal
of Democracy 36-50; Andreas Schedler, The Politics of Uncertainty: Sustaining and Subverting
Electoral Authoritarianism (Oxford University Press, 2013); Andreas Schedler (eds.) Electoral
Authoritarianism: The Dynamics of Unfree Competition (Boulder and London: Lynne Rienner
Publishers, 2006); S Levitsky and L Way Competitive authoritarianism: Hybrid regimes after the Cold
War (Cambridge University Press, New York, 2010) 37-71.
156 See, Graeme Gill The Dynamics of Democratization. Elites, Civil Society and the Transition Process
(Macmillan, London 2000) P Mclaverty ‘Civil Society and Democracy,’ (2002) 8 (4) Contemporary
Politics 303-318.
 the lack or absence of advanced elements of civil society, a non-existent civic culture, weak
civic participation and low level of trust in NGOs’ activities cause significant difficulties in
the process of democratic transitions. These conditions hinder the progress of
democratization, becoming an obstacle in promoting democratization trends.157
Indeed, in many polities that have transitioned to a democratic real constitution, there is
more often than not a group that pushes for political and/or constitutional reforms whether
that group’s agenda is disguised or not. (‘Disguised’ in the sense that a group could be
interested in taking over power and simply use democracy as its inflection point.) The list
of persons or groups that belong to this cluster -- democracy-demanding groups – is wide
and includes opposition politicians, members of civil society, labour movements, media,
academics, professionals, faith-based organisations and influential individuals.158

The role played by democracy-demanding groups as agents of real constitutional

change is be more prominent in authoritarian regimes, where they are part of the problem
that the ruling elites have to deal with. Characteristically, countering pro-democracy voices,
especially through coercive measures, remains a main preoccupation for regimes operating
under authoritarian constitutions. As Way and Levitsky put it:

Sustaining modern authoritarianism is a complex and costly endeavour. It entails dissuading

diverse social and political actors from challenging the regime (through co-optation,
intimidation, or repression), as well as maintaining the loyalty and cooperation of powerful
actors within the regime.159
In the abstract, the efficacy of pro-democracy voices, it is argued, is reliant on several
factors, the main ones being (a) uniformity of purpose and (b) endogenous forces
destabilizing the regime or at least something that drives the regime to collapse under the
weight of its own contradictions. These forces are often supplied courtesy of underlying
structural conditions that are discussed in a separate segment. Disunity and absence of
collegial effort makes the initiatives of democracy-demanding groups counterproductive.

157 Grigorij Mesežnikov, ‘Democratization and Civil Society Development in Taiwan Some Lessons for
Central Europe,’ (2013) Institute for Public Affairs,
<athttp://www.ivo.sk/buxus/docs//publikacie/subory/Democratization_and_Civil_Society_Developm
ent_in_Taiwan.pdf accessed> 16 June 2019.
158 L Svåsand & A Tostensen, ‘Non-state Actors and Democratic Consolidation,’ CIM Working Paper
NUFU: Project on Democratic Consolidation in Malawi (2009) 1
<https://www.cmi.no/publications/file/3324-non-state-actors-and-democratic-consolidation.pdf>
accessed 17 June 2019.
159 Way and Levitsky (note 154) at 56.
The 1989 protests against the Li Peng government, which exemplify this claim, were
portrayed as follows:

The millions of Chinese who demonstrated in May 1989 against the government of Li Peng
and, in the final stage, against the PRC regime itself succeeded in bringing to a halt normal
life in large parts of the People's Republic and in powerfully voicing their demands for
change. But lacking overall organization and thus an acknowledged and coordinated set of
elites, they were incapable of formulating and implementing strategies. Even simple
decisions, such as to abandon Tiananmen Square on May 30, could not be enforced; instead,
the leader of the moment was displaced by those who favoured sticking it out to the tragic
end.160
Co-optation is a particularly common way in which democracy-demanding groups are
disorganized and their metier weakened so that they pose no serious threat to power holders
and the constitutional apparatus that supports them. This is a particularly popular strategy
in neopatrimonial societies.161 The effect of co-optation, as Markus Holdo portrays, is that
“the challengers become politically irrelevant”.162

Lastly, the success of this constituency is contingent on the strength of the incumbent
power holders. The initiatives of democracy-demanding groups are consequently more
effective where the ruling regime is weakened by inability to sustain its supporting bases or
internal disintegration.163 Citing the Russian example, Bertocchi and Spagat have observed
in this respect that:

governments with a weak hold on power are those most inclined to make large gestures to
widen even slightly their support base. This idea is roughly consistent with the actual practice
of post-Communist privatization. The Russian government (Group 1), facing the opposition
of industrial ministries, managers, workers, and regional and local governments (Group 2),
which held formidable power, handed over huge amounts of wealth to a very narrow section
of the society that, in turn, supported Boris Yeltsin’s re-election. On the other hand, Poland
and Hungary, where even the successors to the local.164

160 M Burton, R Gunther & J Higley ‘Introduction: elite transformations and democratic regimes,’ in M
Burton, R Gunther & J Higley Elites and Democratic Consolidation in Latin America and
Southern Europe (New York: Cambridge University Press) 2012 1 at 9.
161 See, Graziella Bertocchi Michael Spagat,, ‘The Politics of Co-optation’ (2001) 29 (4) Journal of
Comparative Economics 591.
162 Markus Holdo, Cooptation and non-cooptation: elite strategies in response to social protest (2019) 4
Social Movement Studies, 442.
163 Levitsky and Way (note 154 above) at 56.
164 Bertocchi and Stagat (note 161 above) at 606. See also Levitsky and Way who observe as follows:
Cohesion is crucial to preventing elite defection, particularly during periods of crisis, when the
incumbent’s grip on power is threatened. Where cohesion is high (e.g., Malaysia, Mozambique,
Nicaragua, Serbia, and Zimbabwe), allied ministers, legislators, and governors routinely support the
government, implement presidential directives, and vote the party line. Internal rebellion or defection
is rare, even in the face of major crises or opposition challenges; when defections occur, they tend
To a large extent, though, the success of democracy-demanding groups is parasitic upon
“crisis”. DDGs more often than not rely on social, economic and political crisis to attract
popular or external support, attention or sympathy towards their initiatives. Crises are in
turn always triggered or shaped by an underlying structural condition as discussed in a
separate sub-section. In summary, the existence of effective democracy-demanding groups
that push for political or constitutional reforms is supposed at this stage to be a condition
precedent for real constitutional change.

4.4.1.3 Candid promotion of democracy by international actors

International actors, either individually or as a community, can be a force for authoritarian
disintegration as much as they can also stabilise or consolidate a constitutional regime.165
As early as the 18th century, the helping hand which the French offered to the thirteen
American colonies played a significant role in the ultimate defeat of the British in the
American Revolutionary War that culminated in the adoption of the American Declaration
of Independence.166 Following the second World War, too, winning alliances forced
Germany, Austria and Italy to reform their political systems, while a democratic system was
literally imposed in Japan by the United States military.167 Also, colonial rule was imperilled
by President Roosevelt’s “vigorous and persistent opposition to colonialism”.168 Such
examples abound and justify a supposition that frank propagation of democracy by the
international community could drive real constitutional change.

not to attract many followers. For example, the Sandinistas did not experience a single public schism
during the 1980s in the midst of civil war and severe economic crisis. Levitsky & Way (note above)
at 65.
165 See, Larry Diamond ‘The Globalization of Democracy,’ In RO Slater, BM Schutz, and SR Dorr (eds)
Global Transformation and the Third World (Boulder, CO: Lynne Rienner Publishers, 1993); L
Diamond Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives (
Carnegie Corporation of New York, 1995); L Whitehead (ed.) The International Dimensions of
Democratization: Europe and the Americas. (Oxford, UK: Oxford University Press, 1996)
166 James B Perkins, France and the American Revolution (1904) 4 Proceedings of the New York State
Historical Association 74-88.
167 Sonja Grimm, ‘External Democratization after War: Success and Failure,’ (2008) 15 (3)
Democartisation 525. See also, RL Merritt, Democracy Imposed. US Occupation Policy and the
German Public, 1945–1949 (New Haven, CT: Yale University Press, 1995); P Merkl, “Allied Strategies
of Effecting Political Change and Their Reception in Occupied Germany” (1968) 17 Public Policy 59–
103; JD Montgomery, Forced to be Free. The Artificial Revolution in Germany and Japan (Chicago,
IL: University of Chicago Press, 1957). JW Dower, Embracing Defeat: Japan in the Wake of World
War II (New York: W. W. Norton, 2002).
168 Rhea Dulles and GE Ridinger ‘The Anti-Colonial Policies of Franklin D. Roosevelt,’ (1955) 70 (1)
Political Science Quarterly, 1 at 1.
 The main ways through which this occurs are first, when countries gain membership,
commit to or separate from supra-national entities such as the European Union; through
“internationalized democratic diffusion” as is often the case with the different so-called
“waves of democratisation”; and most importantly – which is of focus here – through
propagation of ideologies of powerful nations for their geostrategic interests.169 The first
mode of influence is best exemplified in modern times through membership of the European
Union. 170 Without mention of the real constitution, Lord Denning observed about the UK’s
substantial reformation through its accession to the European Union in the following words
in a judgment:

But when we come to matters with a European element, the treaty is like an incoming tide.
It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed
that the treaty is henceforward to be part of our law… It is equal in force to any statute. The
statute …is expressed in forthright terms which are absolute and all-embracing. Any rights
or obligations created by the treaty are to be given legal effect in England without more ado.
Any remedies or procedures provided by the treaty are to be made available here without
being open to question. In future, in transactions which cross the frontiers, we must no longer
speak or think of English law as something on its own.171
Denning’s story about the UK can also be told about many other countries that joined the
European Union perhaps in a more profound way. The entry of the Czech Republic to the
EU, which was preceded by what is called a “Euro amendment”, is described as “the most
extensive and most important constitutional amendment in the Czech Republic.”172 In
Finland, the constitutional framework became open to the pressure of the EU and tended to
“incorporate at least the basic features and consequences of EU membership in the
Constitution”.173 In Italy, too:

The Italian Constitution has also been changed by the European Integration process: in Italy
this has happened without a single formal amendment to the 1948 text. Italy is the only
European nation with a textual Constitution which has never been amended in order to allow
the ratification of any treaty European Treaty, Maastricht Included.174

169 See Levitsky and Way (note 154 above) at 38-39.

170 F Hoffmeister ‘Constitutional Implications of EU Membership: A View from the Commission,’ (2007)
3 Croatian Yearbook of European Law and Policy 59-97. A Kellermann, J Czuczai et al (eds) The
Impact of EU Accession on the Legal Orders of the New Member States and (Pre-)Candidate Countries
(Asser Press, The Hague, 2006).
171 H P Bulmer Ltd and another v J Bollinger SA and others [1974] 2 All ER 1226 at 1232-3.
172 Tomoszek (note 26 above) at 62.
173 Markku Suksi ‘Finland’ in Carlo Fusaro, in Dawn Oliver and Carlo Fusaro (eds.) How Constitutions
Change: A comparative Study (Oxford Hart Publishing, 2011) above at 114)
174 Carlo Fusaro ‘Italy’ in Dawn Oliver and Carlo Fusaro (eds.) How Constitutions Change: A Comparative
Study (2011, Oxford Hart Publishing) at 223.
This influence is certainly not confined to the EU, which is cited here as an illustration that
membership of or departure from a supra-national body can significantly alter the
constitutional arrangements of a polity. In Canada, for instance, the adoption of the North
American Free Trade Agreement is said to have “effected constitutional change in
Canada.”175

Even if entry into or exit from a supra-national legal order leads to constitutional
change, it is not always the case that such a venture results in real constitutional change. As
already mentioned, change of elements of the real constitution does not automatically
translate into real constitutional change. Even if such an exit or entry is profound, the
influence of the supra-national body and enforcement of the ensuing arrangements is what
determines whether real constitutional change is registered. Entry of African countries into
the United Nations or the formation of the OAU did not change the overwhelmingly
authoritarian nature of real constitutions in the region, as Chapter 1 revealed. This is in spite
of the fact that the OAU was formed to inter alia “promote democratic principles and
institutions, popular participation and good governance”.176 Membership of such bodies
could, however, play an important role in preventing real constitutional change towards
authoritarianism for countries that have either a hybrid or a democratic constitution. In the
African set-ups for instance, military coups and other forms of unconstitutional change of
government have become relatively few in the post-1990 period given the stance that the
African Union has taken on coups.177 The role that European Union institutions have played
in resisting complete democratic breakdown in Poland and Hungary also shows how supra-
national bodies can help cushion a democratic constitution against complete breakdown.178

The second mentioned way through which the international community impacts on
real constitutional change is through democratic or authoritarian diffusion. Happenings in
one country can and have in the past had an influence on the affairs of another.179 Following

175 Kahana (note 26 above) at 10.

176 Constitutive Act of the African Union, article 3.
177 See, e.g. Muna Ndulo, ‘The Prohibition of Unconstitutional Change of Government,’ in A.A.
Yusuf and F Ouguergouz (eds) The African Union: Legal and Institutional Framework: A Manual on
the Pan-African Organization (Leiden: Brill, 2012) Chapter 12.
178 See DW News, EU slams Hungary and Poland over democratic standards 30 September 2020
<https://www.dw.com/en/eu-slams-hungary-and-poland-over-democratic-standards/a-55106932>
accessed 15 October 2020.
179 See, Samuel P Huntington The Third Wave (Norman: University of Oklahoma Press, 1991).
the Russian Revolution of 1917 and the taking over of power by the Communist Party of the
Soviet Union, Leninism or Marxist-Leninism percolated into many legal systems of the world
as the ideology behind revolutionary movements.180 It then became the basis for the
exercise of political authority in many revolutionary regimes, especially in the 1970s and
1980s. This is an example of authoritarian diffusion. 181 Conversely, at the end of the cold
war, Marxism and related ideologies lost international acceptability paving the way for the
resurgence of liberal constitutionalism.182 As a result, real constitutional change towards
democratic constitutions was registered in many polities. There have so far been three waves
of democratisation, a phenomenon characterised by widespread establishment of
democratic governments.

Third, and a seemingly more prominent way, is “efforts by the world’s most powerful
liberal state to promote democracy abroad”.183 Though there are many ways through which
this occurs, one such means is through the imposition of conditionalities on aid for aid-
reliant countries. As Way and Levitsky put it:

Forms of conditionality range from negative conditionality – or the withdrawal of external

assistance to recalcitrant autocrats – to positive or membership conditionality employed by
regional organizations such as the EU. The EU offered aid and extensive integration into
Western Europe in exchange for far-reaching political, administrative, and economic
reform.184
Also, in addition to support towards capacity building or financial support to strengthen
institutions,185 other ways that the international community/actors have gone about it is
through “diplomatic persuasion, threats, and – in a few cases (e.g., Haiti, Panama, and
Serbia) – military force.”186 The US has been a particularly notorious candidate for this type
of venture as well as colonial rulers towards their respective former holdings.187 The way

180 S White ‘The Impact of Marxism-Leninism,’ in S While, Political Culture and Soviet Politics, (1979:
London, Palgrave) 113-142; E Ofari, Marxixm-Leninism – The Key to Black Liberation (1972) 4 (1)
The Black Scholar, 35-46.
181 A Cooley ‘Countering Democratic Norms’ (2015) 26(3) Journal of Democracy 49.
182 See, Robert Gideon ‘Democracy Promotion and American Foreign Policy: A Review Essay,’ (2000) 25
(3) International Security 186–203.
183 Mark Peceny, ‘Democracy at the Point of Bayonets,’ (University Park: Pennsylvania State University
Press, 1999) at 185.
184 Levitisky & Way (note 155 above) at 39.
185 Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington, DC: Carnegie
Endowment for International Peace, 1999)
186 Ibid.
187 Ibid.
through which the interventions of international actors contribute to democratisation has
been well summarized by Levitsky and Way as follows:

Western pressure at times has played a major role in toppling authoritarian regimes (e.g.,
Haiti and Serbia) or forcing them to liberalize (e.g., Kenya, Mozambique, Malawi, and
Nicaragua); in blocking or rolling back coups (e.g., Guatemala, Haiti, and Paraguay) or
stolen elections (e.g., the Dominican Republic, Serbia, and Ukraine); and in dissuading
governments from stealing elections in the first place (e.g., Romania and Slovakia).188
The extent of influence of external forces is dependent on a number of factors, key among
them being the vulnerability of the regime to external demands as well as the support, if
any, that such regimes receive from powerful external forces. As hinted to, aid-reliant
countries are more susceptible to conditionalities than those that are self-reliant.189 China
and Russia’s economic and military might makes them less vulnerable to demands for
democratisation even if they are made at all.190 Levitsky and Way observe that these “have
the bargaining power to prevent pressure from being applied”.191 Secondly, the influence
which external actors can have also relies on the nature of the interest that those actors may
have which could act as a support base for the regime and make whatever pressure for
change less exacting. 192 As Levitsky and Way have put it:

Where Western powers have countervailing economic or strategic interests at stake,

autocratic governments often possess the bargaining power to ward off external demands for
democracy by casting themselves – and regime stability – as the best means of protecting
those interests.193
In summary, international actors or the international community can be an exogenous force
towards real constitutional change over a polity in three main ways. First, through
democratic or authoritarian diffusion. Second, through imposition of political
conditionalities to aid and third, through demands for democratisation by powerful
countries. These efforts depend largely on the geostrategic/national interests that the
international community and powerful nations have over the polity in question and the
vulnerability that such a polity has towards pressure from outside.

188 Levitsky & Way (note 154 above) at 46.

189 Ibid at 41.
190 Ibid.
191 Ibid.
192 Gordon Crawford “Foreign Aid and Political Conditionality: Issues of Effectiveness and Consistency”
(1997) 4 (3) Democratization 69 at 87.
193 Levitsky & Way (note 154 above) at 41.
4.4.2 Structural conditions
Though it may be thought that actors determine real constitutional change almost
exclusively going by the foregoing analysis, initiatives of these actors can be understated or
overstated if the environment in which they are pursued is ignored. In fact, the success or
failure in one context over another could simply be explained by the underlying
“environmental” influence delineated here as “structural conditions”. 194 Hence, and
without belabouring this theme, the initiatives of various actors are presumed to be shaped
by these conditions that either trigger, facilitate or frustrate real constitutional change.

Broadly stated, these conditions include (a) wealth status (b) demographic attributes
and (c) historical facts. The wealth factor is a wide one and could affect real constitutional
change in a number of ways. For instance, as mentioned, poor economic conditions of a
polity can make it vulnerable to external pressure for democratisation and create an impetus
for real constitutional change. In a different sense, relative economic affluence can facilitate
gradual change of a polity’s real constitution towards a democratic constitution in line with
the so-called Lipset hypothesis that links democratisation to wealth.195 Demographics on
their part include racial, gender, ethnic, class, religious and regional cleavages. Literature
exists on how these facts influence society and political transformations.196 Demographic
features in most times shape informal aspects of real constitutions and consequently can be
the fault lines to drive real constitutional change as the various interests clash in pursuit of
equal concern by the state or preservation of a place of advantage. Last among the list of
influential environmental factors, past experiences and their legacies can shape the real

194 On structural conditions, see G Pop-Eleches & GB Robertson “Structural Conditions and
Democratization” (2015) 25 (3) Journal of Democracy 144-156.
195 Seymour Martin Lipset ‘Some social requisites of democracy: Economic Development and
Political Legitimacy,’ (1959) 53 American Political Science Review 69.
196 See e.g. Jocelyne Cesari Religion and Democratisation: When and How it Matters (2016) 2 (2)
Journal of Religious and Political Practice 131-134; B Leventoğlu, ‘Social Mobility, Middle Class, and
Political Transitions,’ (2014) 58 (5) The Journal of Conflict Resolution 825-864; W Sarvasy & B Siim, Gender,
Transitions to Democracy, and Citizenship (1994) 1 (3) Social Politics: International Studies in
Gender, State & Society 249–255. Teri L. Caraway, ‘Inclusion and Democratization: Class, Gender, Race,
and the Extension of Suffrage,’ (2004) 36 (4) Comparative Politics 443-460.
constitutions as well as a society’s transformation, its institutions and psyche in profound
ways. Without delving into detail, the influence of phenomena such as colonialism, civil
wars, apartheid and epidemics just to list a few cannot be overemphasised.

The manner in which these structural conditions affect real constitutional change is
multivariate but two ways appear to be more obvious. First, modifications – especially in a
drastic and negative way – to these facts can destabilize the equilibrium required for
sustenance of a constitutional order as a whole or its at least its real constitution. Put
differently, a serious shock to structural conditions could result in a social, economic or
political crisis on which domestic or international actors can rely as they push for real
constitutional change. It is unsurprising thus that constitutional change associated with
constitutional and political change, especially but not exclusively in the third world, has
often been preceded by social, political or economic crisis. The second way is through
disintegration of elements of the real constitution – through say desuetude – as these
conditions undergo their gradual evolution over time. This could occur when, for instance,
a country incrementally secularises with the effect that its real constitution loses some of its
underlying values and ideas, paving the way for others. In this sense, real constitutional
change can happen, though in a less dramatic and perhaps even unnoticeable way.

In summary, structural factors and the changes that they undergo can assist actors
that are able to capitalize on them as they demolish or seek to transform constitutional
arrangements and norms.

4.4.3 Design-based factors

This category encompasses change to formal powers and judicial review.

4.4.3.1 Change to formal powers

Given that real constitutions consist inter alia of the enforced aspects of the written
constitution, formal changes matter.197 Indeed, democratic regimes that are rapidly
disintegrating into autocratic ones are characterised by constitutional and legislative
reforms, Hungary being a paradigmatic case.198 On the other side of the aisle, consolidation

197 See e.g. M Popova, Putin-Style ‘Rule of Law’ & the Prospects for Change (2017)
<https://www.amacad.org/publication/putin-style-rule-law-prospects-change accessed> 15 January
2019.
198 Gabor Halmai, Illiberal Constitutionalism? The Hungarian Constitution in a European Perspective
<https://me.eui.eu/gabor-halmai/wp-
of authoritarian constitutions in autocratic regimes, as happened in post-colonial African
societies, was mostly preceded by formal constitutional change, either through substitution
or amendment, as Chapter 1 showed.199 Conversely for these regimes, when authoritarian
constitutions were threatened in the wake of the TWD, adoption of new constitutions or
amendment of existing ones became rampant too.200 In the case of hybrid regimes,
competition over the rules of the political game, which is an attribute of electoral regimes,
is often characterised by frequent law reform. The point here is that formal powers have a
central role to play in different regimes and changes to them could have, it is supposed, an
implication for real constitutional change.

In the case of a written constitution, formal change occurs in two main ways:
amendment or substitution.201 Its enforceable meaning can change though in many ways,
including “desuetude”202 or “informal change”.203 Change through substitution occurs
when the entire text is replaced with a different one.204 Amendment at the time denoted as
revision occurs when change is effected to the text following the procedure (often) set out
in the constitutional text itself. In this regard, certain constitutions are considered as flexible,
to the extent that they are easy to amend, while others are considered rigid (those which are
difficult to amend).205 Several actors can trigger this process and it is mostly done through
either a popular or a parliamentary initiative. Informal change, for its part, which is
mentioned in the preceding part, is achieved when the enforceable meaning of the
constitution is changed through change of political practice or judicial interpretation which

content/uploads/sites/385/2018/09/Illiberal_Constitutionalism_WHK17_Halmai-3.pdf> accessed 15
June 2019.
199 See the abstract to Fombad (note 1 above)
200 Generally, see, CM Fombad ‘Constitution-Building in Africa: The Never-Ending Story of the Making,
Unmaking and Remaking of Constitutions,’ (2014) 13 (4) African and Asian Studies 429.
201 Lutz (note 140 above).
202 Richard Albert, ‘Constitutional Amendment by Constitutional Desuetude,’ (2014) 62 (3) American
Journal of Comparative Law, 641.
203 Oran Doyle ‘Informal Constitutional Change,’ (2017) 65 Buffalo Law Review 1021; C Martin ‘The
Legitimacy of Informal Constitutional Amendment and the ‘Reinterpretation’ of Japan’s War Powers,’
(2017) 40 Fordham International Law Journal 427.
204 Gabriel Negretto, ‘Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin
America,’ (2012) 46 (4) Law & Society 749-779.
205 Lutz (note 140 above); R Dixon, ‘Constitutional Amendment Rules: A Comparative Perspective,’
(University of Chicago Public Law & Legal Theory Working Paper No. 347, 2011)
<https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1070&context=public_law_and
_legal_theory> accessed 15 June 2019.
confers a new meaning to the one hitherto enforced.206 Desuetude is simply change through
constitutional disuse, what Albert has called the situation “when a constitutional provision
loses its binding force upon political actors as a result of its conscious sustained non-use
and public repudiation by political actors”, which happens through the establishment of a
new convention.207

A cursory inquiry into most legal orders reveals, though, that change to written
aspects of real constitutions, through whatever means, does not usually precede real
constitutional change. Instead, real constitutional change is often followed by change to
written aspects of the real constitution.208 When, for instance, infra-constitutional norms
change by desuetude, as was the case with the onslaught on socialism in the late 1980s,
written aspects of real constitutions in polities that had embraced this ideology changed to
adapt to the new reality. As Tomoszek observes about the Czech Republic:

The fall of the communist regime on 17 November 1989 had to be reflected in constitutional
changes. The first step was the abolition of the leading role of the Communist Party in Article
4 of the 1960 Constitution. This was followed by changing the mandating of deputies by the
Communist Party to a representative role and vesting sovereignty in the people, not the
working class.209
On the other hand, formal powers in the text and change to these powers could play a
consolidating role. Formal rules influence informal powers and politics and are also the
main device through which other elements of the legal order adapt or find legitimation. 210
In this respect, change to formal rules and the powers that they create could enable certain
norms to endure or push them to give way. Contrary, thus, to the claim that normatively
attractive formal powers don’t matter, especially in authoritarian domains, real
constitutional norms thrive well and are more stable where they have a formal propping.211
In this regard, authoritarian norms endure where the institutional framework – in the form
of authoritarian enclaves – does not allow for effective operation of ideas that undergird

206 Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (Oxford,
Oxford University Press, 2019)
207 R Albert (note above 206) at 641.
208 Elkins et al (4) at 114.
209 M Tomoszek (note 26 above) at 54.
210 Henry Hale, ‘Formal Constitutions in Informal Politics: Institutions and Democratization in Post-Soviet
Eurasia,’ (2011) 63 (4) World Politics 581-617.
211 On the role that Constitutions play in authoritarian regimes, see L Chien-Chih, “Constitutions and
courts in Chinese authoritarian regimes: China and pre-democratic Taiwan in comparison” (2016) 14
(2) International Journal of Constitutional Law 351.
democratic governance, such as separation of powers and checks and balances.212 These
are achieved through the creation of formal constitutions that vest enormous power in one
institution or individual, especially the presidency, so that all the other institutions are
literally subordinate to it. When a formal constitution vests too much power in, say, a
president, it amplifies the place and role of informal politics that coagulate around him.
Structures provided either by a formal legal apparatus, be it the institutional framework or
norms, can also provide a haven for other norms, such as those found in legislation, to
thrive. In the analysis of legislation as a source of constitutional authority, mention was
made, for instance, of “by law” clauses that are invoked by authoritarian regimes to weaken
democracy-supporting rights because these clauses clothe real constitutional norms in
enabling legislation.213

In summary, it is supposed that (a) the structure of formal powers matters in whatever
constitutional domain; (b) change to formal powers is less likely to trigger real constitutional
change, especially in a rapid way; (c) instead, real constitutional change most often triggers
change to written aspects of the real constitution such as legislation and constitutions either
formally or informally and (d) change to formal powers is an instrument for consolidation
of constitutional regimes to the extent that it may provide a conducive environment through
which norms, especially in an authoritarian set-up, survive. In the case of democratic or
hybrid regimes, formal rules could prevent regression. In accordance with this analysis, we
do not expect a society that has effected formal change to attain real constitutional change
towards a democratic constitution. However, we expect that countries that attained real
constitutional change and in so doing reworked their formal constitutions to entrench
democratic and constitutional ideals – such as dispersal and separation of powers – to
consolidate and not to regress into a more authoritarian constitution.

4.4.3.2 Existence of effective judicial review

Though being an aspect of institutional design – which may be part of the formal powers –
judicial review may affect real constitutional change in a distinctive way.214 Already, it was

212 Caroline Beer, Electoral Competition and Institutional Change in Mexico, (University of Notre Dame
Press, Notre Dame, IN, 2003)
213 Generally, see Gordon Silverstein, ‘Singapore: The Exception that Proves Rules Matter,’ in T Ginsburg
& T. Moustafa (Eds.) Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge
University Press, New York, 2008) 73-101.
214 See E Epstein, J Knight and O Shvetsova. ‘The Role of Constitutional Courts in the Establishment and
Maintenance of Democratic Systems of Government,’ (2001) 35 (1) Law & Society Review 117-163.
pointed under section 4.2.3, enforced judicial decisions are part of the real constitution.
Consequently, when these decisions are overturned or departed from, the real constitution
evolves. In the realm of conventional constitutional change, what is delineated as informal
constitutional change occurs when courts change the enforceable meanings of formal
prescriptions.215 This happens when. for instance, courts overturn previous decisions. Also,
courts can strike down other elements of the legal order, such as executive directives or
statutes, even those that have been in place for a long time, for being non-conforming to
constitutional prescriptions or principles.216 Related to these are situations where courts
decline to strike down, say, legislation that permits the state to abrogate rights. When this
happens, they confer constitutional authority on such a legislation and confirm the law-
making power of parliament. These are some of the different ways through which judicial
review affects real constitutional change.

There is, though, a much profound way that courts can be thought of as drivers of
real constitutional change, especially in societies with hybrid and authoritarian real
constitutions. This involvement becomes clearer when we consider the phenomenon
dubbed the “judicialisation of politics”, a phrase that has been used to explain judicial
empowerment that followed constitutional developments in Eastern Europe after the
collapse of the Berlin Wall.217 This empowerment provided a challenge to the traditional
understanding that there were matters that were in the preserve of politics and courts would
be trespassing if they ventured into them. The post 1989 judicial empowerment thus puts
courts at the centre of political intrigues, including what has been delineated as “mega
politics”, an arena dominated by informal politics.218 In so doing, it is contended here,
courts are able to shape real constitutional change and stability in more profound ways than
just through the mere striking down of legislation or executive action. Some of these more
profound ways include instances when constitutional amendment processes or electoral

215 See Albert (n 206); Doyle (n 203 above).

216 For instance, in S v Makwanyane and Another (CCT 3/94), the Constitutional Court declared section
277(1)(a) of South Africa’s the Criminal Procedure Act 51 of 1977 as unconstitutional and invalid.
217 Ran Hirschl, ‘The Judicialization of Politics,’ in R Goodin (ed) The Oxford Handbook of Political
Science (Oxford University Press, 2013) 253.
218 See Ran Hirschl, ‘The Judicialization of Mega-Politics and the Rise of Political Courts,’ (2008) 11
Annual Review of Political Science 93–118.
contests are reviewed and invalidated, such as happened in Mali and Malawi
respectively.219

Though judicial review can be part of the many mechanisms through which
elements of the real constitution may be altered, it is doubted that judicial review can on its
own drive real constitutional change, especially of a rapid kind. It can, however, contribute
to the gradual overhaul of pathological components of a legal order so that the process of
evolution of the real constitutions happens in a continuing way over time as understandings
of the relationship between law and politics get transformed. At best, therefore, after the
actors mentioned in section 4.4.1 have secured real constitutional change, judicial review
can guard against regression. In this sense, judicial review can hedge against real
constitutional change towards a more authoritarian constitution. This, it is felt, is the
rationale behind the abovementioned empowerment of courts after the collapse of
autocratic post-soviet regimes. In this regard, we expect a society with an effective judicial
review system to consolidate its hybrid or democratic constitution. An ineffective institution
of judicial review is conversely a condition for real constitutional change towards an
authoritarian constitution.

4.5 Summary and concluding observations

If transition into different constitutional conditions is to be understood, attention needs to
be paid to de facto norms that authorise or explain power acquisition, distribution and use.
This chapter has endeavoured to show that elements such as legislation, conventions, and
case law, as well as informal power and politics, contribute to the constitutional conditions
of polities just the same way as formal constitutions do. Hence, the existence, change and
endurance of these “constitutional-effect-producing” elements should be considered when
investigating the different transitional outcomes that SSA countries achieved after their
encounter with the TWD. These outcomes are either authoritarian (where there was no
transition at all or a relapse from a hybrid constitution); hybrid (where there was a partial
transition or a relapse from an authoritarian constitution); or democratic (where there was a

219 See 24 France, Constitutional court dissolution plunges Niger in crisis 01 July 2009, available at
<https://www.france24.com/en/20090630-constitutional-court-dissolution-plunges-niger-crisis- >
accessed 30 June 2019; Mutharika and Another v Chilima and Another (Msca Constitutional Appeal
No. 1 of 2020) [2020] MWSC 1 (08 May 2020).
complete transition). The observable features of different real constitutions are also
described for the sake of classifying the outcomes.

In instances where the constitutional conditions of a polity changed from one

constitution to another, real constitutional change is said to have occurred. Two forms of
real constitutional change are portrayed in this thesis, one towards a democratic and another
towards an authoritarian constitution. Change towards a democratic real constitution is
what is synonymously referred to in this project as democratisation, while change towards
an authoritarian one is delineated herein as regression. When real constitutional change
happens, it is assumed that there is a corresponding change to its elements in various ways
depending on the elements in question. The mere change of certain elements of the real
constitution does not, however, necessarily result in real constitutional change.

If real constitutional change is to occur, this Chapter has suggested, certain

conditions are necessary. These conditions can be disaggregated into three broad
categories, namely (a) actor-based (b) structural and (c) design-based. Under actor-based
conditions, change to incumbent power holders, the existence of effective democracy-
demanding groups and candid promotion of democracy by international actors are the
surmised conditions for real constitutional change. When examining the successes or
failures of these actors, regard should also be paid to underlying structural conditions which
include the society’s wealth status and demographic attributes, as well as its historical
encounters and their legacies. Lastly, design factors (change to formal powers and judicial
review) matter, but it is unlikely that real constitutional change towards a democratic
constitution can be fostered by them in a rapid way. At best, this chapter has claimed,
change to formal powers as well as judicial review can thwart real constitutional change
towards an authoritarian constitution. The following three chapters discuss real
constitutional change in Cameroon, Kenya and Benin in an effort to investigate whether
these theoretically-derived conditions are borne out in practice.