Convergence or divergence in text and context? reflections on Constitutional Preambles in the Constitution-making exercises of post-independence Cameroon and post-apartheid South Africa

• Author: Justin Ngambu Wanki
• DOI: 10.10520/EJC-13bd7cc43f
• Published date: 01 December 2018
• Date: 01 December 2018
• Record Number: sapr1_v33_n2_a3
• Pages: 1-24

Southern African Public Law

https://doi.org/10.25159/2522-68 00/3353

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 2 | 2018 | #3353 | 24 pages

© Unisa Press 2018

Article

Convergence or Divergence in Text and Context?

Reflections on Constitutional Preambles in the

Constitution-making Exercises of Post-independence

Cameroon and Post-apartheid South Africa

Justin Ngambu Wanki

LLD candidate, Department of Jurisprudence, Faculty of Law, University of Pretoria

wanketons@gmail.com

Abstract

In this article, I attempt to establish the need for the convergence of the spirit of

the law—the Preamble—and the letter of the law—the provisions of the

Constitution of Cameroon contained in its articles. First, I adduce prototypes or

archetypes of ‘Jacobin constitutionalism’ and Anglo-Saxon-style

constitutionalism as benchmarks through which I evaluate the extent to which

the spirit and letter of the law of the Constitution of Cameroon have been

converged. Having established the incongruence of the Preamble with these

prototypes, I have referred to the Constitution of post-apartheid South Africa as

a fitting paradigm that entrenches modern constitutionalism against which the

Preamble to the Cameroon Constitution can be compared, revisited and revised.

South Africa has been selected based on the view that, as another African

country, it would serve as a more appropriate benchmark for reviewing the

Preamble to the Cameroon Constitution than those of the United States, France

or other Western nations, which might result instead in a skewed logic. Also,

both countries have similar legal systems and historical experiences. A

juxtaposition of the two constitutional preambles vividly exposes the lapses in

the Cameroon example. As a result, I have suggested that the Cameroon

Constitution be amended for the purposes of reviewing its Preamble to bring it

into line with the conventional requirements of democratic preambles and to

transform the formal demands of the Preamble as tangible demands placed on a

government through entrenched provisions. Reasons have been advanced in

support of the necessity for including preambulatory clauses in a constitution

without which the intent of the constitution per se would be deferred.

2

Keywords: preamble; constitution; preambulatory clauses; ‘Jacobin

constitutionalism’; Anglo-Saxon constitutionalism; modern constitutionalism;

Cameroon; post-apartheid South Africa

Introduction

A country’s constitution-making process is a significant procedure that delivers a

constitution which either liberates the people or imposes authoritarianism and neo-

colonialism on them. As a matter of fact, the raison d’être of a constitution-making

exercise is generally encapsulated in a preamble, which lays out a new philosophy and

ideology while breaking ranks with the erstwhile oppressive philosophy and defining

the terms of the new dispensation. Present-day Cameroon and South Africa were

previously ruled by colonial and apartheid regimes respectively. As a result, there is a

sound historical and jurisprudential basis upon which to assert that insights from one of

these constitutional systems may be helpful in addressing issues in the other.

Given the authoritarian and oppressive nature of these erstwhile regimes, their collapse

in 1960 and 1994 respectively implied a shift towards a new dispensation defined by

respect for human rights principles and democracy in their respective constitution-

making exercises. The intent and conduct of the new law is known as the ‘spirit of the

law’. The spirit of the law implies that the declaration which establishes the new

dispensation in terms of the preamble is imbued with and expanded by articled

provisions which the constitution entrenches. These provisions of the constitution are

known as the ‘letter of the law’; they must empower the people of the new dispensation

by whose constituent authority the new dispensation is established. The new law must

then be able to inspire development and enhance the living standards of the present

holders of the constituent power who were previously impoverished and dispossessed

of their dignity and had their destiny hijacked by the authoritarian regimes. In other

words, the spirit of the law must be developed as a logic of regulation that is intended

to shape and bequeath tangible demands in the form of articled provisions; such

provisions should shape inclusions in or exclusions from the final product of the

constitutional process that will purposefully define what is experienced in the new

dispensation.1

In this article, I have attempted to establish to what degree a departure from the

oppressive dispensations as articulated by the constitutional preamble—the spirit of the

law—is reflective of the articled provisions, or the letter of the constitution, in the most

people-empowering provisions. In attempting to achieve this task, I try to problematise,

first and foremost, the manner in which the Preamble to the Cameroon Constitution has

been conceptualised. The Preamble is highly committed to hortative and celebratory

1 Mark Goodale, Anthropology and Law: A Critical Introduction (New York University Press 2017)

118–119.