African Politics and Policy

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The constitutionalization of culture in East Africa

by Kristina Bekenova

 

African countries have diverse ethnicities with different cultures, languages and religions.

The importance of protecting and promoting traditional culture as a source of political stability, economic and social development and growth of tourism industry has been may times claimed by African leaders[1]. Taking into account that Constitution is the main legal document of a country, it embodies its values and structures its behavior, it is interesting to know how culture is reflected in African Constitutions.

This analysis is focused on 18 countries of Eastern Africa.

The first finding is that culture is acknowledged in 15 of the 18 Constitutions from the East Africa region. Only Comoros, Djibouti and Tanzania are an exception to this trend. Yet, in spite of the fact that culture is given constitutional recognition in so many countries, only two Constitutions go on to provide a definition of what culture is.

According to Article 11 of Kenyan Constitution, culture is the “foundation of the nation and the cumulative civilization of the Kenyan people and nation”. For Rwanda, culture is a “source for home-grown solutions” (Art 11), which helps “to build the nation” and “restore dignity”. Culture and history for Kenya are prioritized in identifying and changing the borders of community land (Art 63), constituency (Art 89), and county (Art 188).

Constitutional dispositions

While most Constitutions do not specify how culture should be understood, they display some differences in terms of how extensive and detailed are the constitutional provisions concerning culture.

For example, in the case of Madagascar, the Constitution devotes only one article to culture. However, the Preamble that starts with identification of guiding principles makes several references to traditional values that deeply imbedded in Malagasy society:

  • belief in Andriamanitra Andriananahary, concept of God the Creator;
  • Malagasy proverb “Ny fanahy no mahaolona” (“The spirit/‘the soul of living’ makes a person”) that is a guiding principle for “promot[ing] and develop[ing] heritage of society living in harmony and respectful of otherness, of the wealth and of the dynamism of its cultural and spiritual values”; and
  • “ny fitiavana, ny fihavanana, ny fifanajàna, ny fitandroana, ny aina”, ancestral wisdom referring to love, kinship/friendship, respect/living together, responsibility, soul that facilitate Malagasy people “to recover its originality, its authenticity and its Malagasy character, and to inscribe itself in the modernity of the millennium while conserving its traditional fundamental principles and values, and privileging a framework of life allowing a “living together” without distinction of region, of origin, of ethnicity, of religion, of political opinion, or of gender”.

 

In other cases, Constitutions devote more than one article to the constitutionalization of culture, for instance Mozambique, Kenya, Eritrea, Zimbabwe.

What do Constitutions constitute?

Constitutions are the documents that constitute a polity in the sense that they create it, they shape it, and they regulate it. With regard to culture, Constitutions tend to constitute in the sense defined above and constitutionalize four dimension of the cultural sphere: the right to culture, the development of national culture and values, the preservation of historical and cultural heritage, the promotion of the culture through the promotion of arts, science and technology.

With regard to the right to culture, African Constitutions dispose that:

  • every citizen has [a] right to the equal access to instruction, to education and to culture (Burundi, Art. 53; Seychelles, Art. 39; Uganda, Art. 37);
  • every citizen has a right to participate in culture of his choice (Kenya, Art. 44; Malawi, Art. 26; Zimbabwe, Art. 63); or
  • every citizens has the right to actively participate in all political, economic, social and cultural life of the country and community (Eritrea, Art 7; Madagascar, Art 26; Seychelles, Art. 39).

 

In this regard the Rwandese Constitution is of particular interest because it does not only provide every Rwandan with the right to culture but it also endows its citizens with a ‘duty to promote it’ (Art. 36). Similar prescriptions can be found in the Constitution of Burundi (Art. 68), Mozambique (Art. 45). Moreover, the Constitution of Mozambique allows all citizens with the right to popular action in case of offences against cultural heritage (Art. 81).

With regard to the development of national culture and values, African constitutions include dispositions designed to ensure that national culture, values and identity are properly developed and promoted. This point can be illustrated by Art. 68 of the Constitution of Burundi; by Art. 9 of the Constitution of Eritrea; by Art. 11 and 115 of the Constitution of Mozambique, and by Art. 286 of the Constitution of Zimbabwe.

African Constitutions are also concerned with the preservation of historical and cultural heritage.  This preservation is constitutionalized a fairly large number of dispositions, such as: Eritrea, Art. 21; Ethiopia, Art. 9, 41, 51 & 91; Madagascar, Art. 26; Rwanda, Art. 47; Seychelles, Art. 39; Somalia, Art. 31; South Sudan, Art. 38; Uganda, Art. 24, 25 & 5th schedule (Art, 178-13); Zambia, Art. 112; Zimbabwe, Art. 16. In some cases these dispositions are also meant  “to preserve, protect and promote indigenous knowledge systems, including knowledge of the medicinal and other properties of animal and plant life possessed by local communities and people” (Zimbabwe, Art. 33, similar Kenya, Art. 11).

Finally, Constitutions also include dispositions concerning the promotion of arts, science and technology. There are measures designed to promote arts, science, technology and sports and create environment for creativity and innovations (Eritrea, Art. 9 & 21; Ethiopia, art. 9, 41 & 91; Madagascar, Art. 26; South Sudan, Art. 38). In Kenya, the constitutional dispositions  are meant to “promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage” (Kenya, Art. 11). In Mozambique, the Constitution provides its citizens with the “freedom of scientific, technical, literary and artistic creativity” (Art. 94). In Somalia, the Constitution (Art. 30) emphasizes the advancement of cultural and traditional dances and sports, while in Uganda (Art. 38) and Zimbabwe (Art. 12), the Constitutions also aim to promote Pan-African cultural cooperation.

Some  Constitutions – Eritrea (Art. 19) and Kenya (Art. 44) – guarantee citizens the right to form cultural organisations, while  the Constitution of Mozambique encourages youth “to create organisations for the pursuit of cultural, artistic, recreational, sporting and educational objectives” (Art. 123).

Such diverse counties as Ethiopia (Art. 39), Kenya (Art. 56), South Sudan (Art. 33), Uganda (Art. 37) provide their diverse cultural communities with the right to express, develop and promote their culture and preserve their history. Along with this right, the government has a duty to support cultures on the equal basis (Ethiopia, Art. 91). Cultural diversity should be reflected in public bodies (Kenya, Art 197; Uganda, 5th schedule, Art. 178-2), respected in performing its functions (Kenya, Art. 238; Uganda, 5th schedule, Art. 178-12) and reflected in the design of national currency (South Sudan, Art. 183).

Some of the African Constitutions acknowledge the existence of harmful or negative cultural practices that are incompatible with “fundamental rights, human dignity, democratic norms and ideals, and the provisions of the Constitutions” (Ethiopia, Art. 91), with “public order and good morals” (Rwanda, Art. 47), with “unity, civilization and well-being of society” (Somalia, Art. 31) or against women or any other marginalized group (Uganda, Art. 32; Zimbabwe, Art. 80). In this case, State’s government does not support and prohibit its practice. Rights of children and youth should be protected against harmful cultural practices (Kenya, Art. 53 & 55; South Sudan, Art. 17; Zimbabwe, Art. 12).

Zambian, Ugandan and Zimbabwean Constitutions recognize the institute of traditional or cultural chief/leader (128; 246; 280 respectively), while not offering a special status and political rights.

Conclusion

While African countries are proud of their vibrant cultures, history and traditions, its preservation and promotion should starts with clear legislation. Constitutions should clearly underline the importance of culture for state’s development, and should accordingly protect the right to culture and creativity.

In this case, it is worth noting the Constitution of Kenya, which in addition to granting a profound and essential significance to culture, promotes all cultural expressions and protects intellectual property and indigenous knowledge. In these last two respects, the Constitution of Kenya provides a constitutional justification for the enactment of special legislation that ensures the payment of royalties and the compensation for the use of cultural products (Art. 11). Intellectual property is also secured by Burundi (Art. 58), Madagascar (Art. 26) and Mozambique (Art. 94).

Tanzania is on its way to a new Constitution, where, according the draft[2], culture would take an important role as well. According to Art. 15 (part 3) of the draft, culture is defined as ‘ancient heritage’ and, because of its status and constitutional relevance, should  be protected; cultures of communities should be preserved and promoted; and the conditions for culture as individual creativity that brings economic development and social changes should be created.

[1] For example: “Angola: valuing local art and culture is important, says governor”, January 12, 2016, http://www.africanpoliticsandpolicy.com/?p=1225; “Algeria: culture beyond consumption”, April 19, 2016;  http://www.africanpoliticsandpolicy.com/?p=2435; “Sudan: could culture save the country?”, April 30, 2016, http://www.africanpoliticsandpolicy.com/?p=2575; “Nigeria: embracing festivals, tourism and culture”, May 3. 2016, http://www.africanpoliticsandpolicy.com/?p=2596; “Liberia: national reconciliation through the arts”, May 16, 2016, http://www.africanpoliticsandpolicy.com/?p=2746; “Tanzania: invest more in culture!”, May 24. 2016, http://www.africanpoliticsandpolicy.com/?p=2806; “Rwanda: in defense of culture”, August 16, 2016, http://www.africanpoliticsandpolicy.com/?p=3579; etc.

[2] The proposed Constitution of Tanzania, 2014. Available at http://www.constitutionnet.org/files/the_proposed_constitution_of_tanzania_sept_2014.pdf

 

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