Cardozo International & Comparative Law Review
Abstract
The rule of law is the foundation and cornerstone of any legitimate democratic State. The rule of law, at its minimum, requires that the State subject the people and itself to publicly promulgated laws. In addition, the State's legislative function must be made separate from its adjudicative one and the law must be supreme, meaning that all citizens, including those who hold important positions in government, are subject to the law. The rule of law is so important to the practice of democracy that it is virtually impossible to have a constitutional government without it. Adherence to the rule of law is one of the three important elements of modern constitutionalism-the others are the protection of human rights and the effective constraining of the government so that those who serve in it do not engage in self-dealing and other forms of opportunism. A contemporary African State cannot be considered legitimate, especially from the point of view of the majority of its citizens, if it is lacking in any or all of these three characteristics of modern constitutionalism. An action, such as a military or a constitutional coup, not only diminishes the practice of constitutionalism, but can delegitimize the State, especially in the eyes of the majority of citizens. Coups can create conditions that: (1) exacerbate conflicts between subcultures and threaten peaceful coexistence; (2) discourage entrepreneurship and the creation of the wealth needed to confront poverty and inequality; (3) encourage the gross abuse of human rights, particularly those of minority ethnic and religious groups; and (4) destroy prospects for deepening and entrenching democracy and the rule of law. Hence, Africans must find ways to prevent military and constitutional coups. They can do this by providing themselves with a governing process undergirded by constitutional democracy and adherence to the rule of law.
Disciplines
Comparative and Foreign Law | International Law | Law
Recommended Citation
John M. Mbaku,
Coups, Constitutional Democracy, and the Rule of Law: Why Africans Must Care,
4
Cardozo Int’l & Compar. L. Rev.
35
(2020).
Available at:
https://larc.cardozo.yu.edu/ciclr/vol4/iss1/4