Here you are, still with us, thanks. Now this is the third module of our course Federalism and Decentralization, Evaluating Africa's Track Record. We have now moved beyond a general introduction. And you are no longer uninitiated, so things are gonna get a little more in depth. In the meantime, please make sure to keep up with the readings. Module 1 is the general introduction to the twin concepts of federalism and decentralization. During this introductory module, we had a chance to unpack and examine the three promises associated with both concepts. We also looked at how federalism and decentralization were supposed to bring in better democracy, effective governance, and management of diversity. Module two continued with a generalist discussion and looked at he core ideas underpinning both concepts. Particularly, the combination of self-rule and shared-rule. We also looked at the distribution of power, that is the who does what that is supposed to lie at the foundations of both concepts. And the notion of multiple identities that coexists with the multiple orders of government. In this module, that is module three, we look at the building blocks of federalism and decentralization. Video lectures two and three will cover the various political and social foundations. Our main focus in this video lecture of module three however, is the legal foundations. That is, constitutions, courts, and a bill of rights. By this point, it should be clear of how much the constitution of a country matters for federalism and decentralization, particularly in terms of how it distributes power across multiple orders of government. Establishing where there is self rule and shared rule. This reflects both the origins of federalism as well as federalism studies. For a long while, our subject matter was a topic for the discipline of constitutional law. Some of the classics, establishing our field of study are indeed from constitutional law. And the legal angle has remained quite pronounced in the study of federalism and decentralization to this day. This is also the case for Africa, as many constitutional lawyers have lent their technical expertise to help establish the legal foundations for federalism and decentralization in various African counties. It is indeed possible to limit ourselves to the legal aspects of the twin concepts and lecture on the institutional, constitutional elements underpinning both federalism and decentralization. It is not uncommon to teach federalism this way. By focusing on the formal and codified legal aspects. After all, this is the perspective often employed during times of constitutional institutional design. And there is an undeniable need for experts who could help with legalistic details and the technical expertise that are needed for the new systems to run. It should be clear to you, by now, that we deliberately avoid employing a single disciplinary lens in this course. So we will look at the legal foundations as but one, of the building blocks of federalism and decentralization. The very first thing we have to examine on the legal foundations, is the constitution, of course. In its simplest formulation, constitution is the combination of rules constituting a polity. Nowadays, the prevailing assumption is that a constitution is a single written document establishing the legal foundations of a political system. Indeed, it is true that many of the reforms in Africa during the 1990s, centered on writing new national constitutions to bring about federalism and decentralization. Codified in the form of a single document, the constitution was the comprehensive meta-document outlining the rules constituting the new polity. The best example of this, is South Africa's post-apartheid constitution that defined the transition to plural democracy with strong profits. In global terms, nowadays, we see a preference for such comprehensive, codified and written constitutions. But please note that this is not the only type of constitution that exists. In some countries, notably the United Kingdom, the constitution of the country is a combination of a number of written documents as well as uncodified practices and custom. Some of these uncodified practices and customs predate representative democratic politics of course, so they are not always embodiments of progressive legal philosophy in the modern sense. But both the written and uncodified all come together as the rules constituting the polity. The constitution of the country, in other words. Because most constitutional reforms took place in Africa relatively recently, that is to say during the 1990s. The tendency has been to amalgamate all issues and concerns into a comprehensive codified and written single document that would form the constitution of the country. Traditional laws predating democratic politics, rarely find their way into these new constitutions. This means that long established practices traditional custom often do not enjoy the same recognition constitutionally, as they do in older established federations. This is an issue we will revisit in module three when we reflect on the future of federalism and decentralization in Africa. At this point, it is important to note that it is the constitution of the country that establishes the distribution of power. That is the legal foundation of federalism and decentralization. It is of primary importance in federalism, because it establishes the safe guards, the autonomy of the regional states. Constitutions matter to decentralization as well. But since decentralization is often mentioned in big comprehensive terms, and without establishing, protecting individual local governments. And since decentralization can be implemented through ordinary legislation, constitutions are not the defining feature as it is the case with federalism. The who does what's establish in constitutions for decentralization tend to be more generalist, and refer to regional and local governments in more generic terms. As we have seen in the previous module, the center has some areas where it has self-rule. The regions have other policy areas where they have self-rule, and yet there are other areas where we see shared-rule. Between the center and the regional states, as well as among the region themselves. We had also seen how the shared policy areas, they are called joint competencies, concurrent powers, shared jurisdiction. These were particularly tricky in federal politics. Quite often, the who does what is not very clear and needs the involvement of a constitutional or a supreme court. Not only are there issues between the center and the regions but also different regional states might disagree over policies. There might be spillover effect and national priorities Not all federal and decentralized countries have a constitutional court or a supreme court responsible for clarifying what order of government is responsible. Acting as an umpire above orders of government, and protecting the supremacy of the constitution, but most do. Some federal countries, like the United States, Germany, Australia, and Austria, have strong constitutional law supreme courts. Amongst the African cases we will examine, South Africa has a similarly strong constitutional court. Supreme constitutional courts not only interpret the wording and the implementation of the constitution, but they also help resolve disputes between the orders of government. Regional states versus the center or amongst regional states themselves and other corporate institutions. Courts also help resolve disputes involving spillovers across regional states, say, in environment or transportation or in communication. But do note that some federal systems, particularly the multi-nation ones, tend to see federal division of power as a political and not a technical legal issue. When different ideas about the nature of the federal union coexist, and when different people see the who does what in different terms, the political foundations of a federal union is inseparable from these legal questions. And these require political and not legal solutions. In multi-nation federal countries like Belgium and Switzerland, constitutional or supreme courts take a secondary role when it comes to determining who does what. The nature of the political union, is accordingly seen as a political issue to be settled amongst constitute nations, and not a legal matter to be settled amongst lawyers. In the overview of module two, we had highlighted the non-majoritarian element inherent in federalism. This was not a simple one citizen, one vote political system. There was an in-built recognition of collective representation. Meaning the regional local governments have corporate representation in the political system. By now, I suspect you are starting to appreciate the need to take an interdisciplinary broad perspective that does not erase complexity out of the picture, in order to present a simplified version not warranted by the facts on the ground. In order to understand how things work, we have to cast the net much wider than federalism in the strict sense. This means that some of the political reforms brining in federalism and the corporate recognition of regional states have also introduced in the individual protection of individual rights and freedoms. It's a bit like the American electoral college votes we have discussed in the last module. There's half a measure of corporate federalism and half a measure of individual rights. Such bill of rights and freedoms, are often part of Constitutions and to uphold individual rights and to protect individual freedoms, regardless of the jurisdiction one inhabits. Living in regional state A or B, should not influence the exercise of individual rights. Yet things are, of course, not that simple. In Nigeria and Ethiopia, regional states have policies prioritizing, favoring the ethnic, linguistic, cultural rights of their own indigenous peoples at the expense of other individuals who lack such local roots. Nigerians, in fact, call this the federal principle. We see a similar tension between individual and group rights in multi-nation federations like Belgium and Canada, especially in terms of languages. Nationwide individual freedoms and liberties face the collective interests of language groups. There is an inherent foundational question here about the balance between the autonomy of the regional state, and the individual rights and freedoms. After all, this might be less of a technical matter but a political one. A political one on the nature of the political union. It is for this reason that we turn to the political foundations in our next video lecture. But now take a break. Grab yourself some coffee and then we'll continue from where we left off. See you later.
