The impact of the initial transplantation of Western constitutionalism on Africa
In the early days of colonization, because the colonial empires represented by Britain and France mainly pursued indirect and direct colonial rule policies in Africa, correspondingly, they also adopted "indirect transplantation" and "direct transplantation" methods in the process of legal transplantation. Under the premise of indirect transplantation, the usual practice of some Western suzerainty represented by the United Kingdom is to first derive the colonial fundamental law from the native legal system, and then "allow the adjustment of the African legal and judicial system to have continuity" under the premise of not violating the fundamental law and the justice and "civilization" of the metropolis, in which the fundamental law is mainly formulated by royal decree of the Privy Council.
For example, the African Royal Order of the Privy Council of 1889 is a constitutional administrative system formulated by the British government in the African region for the exercise of judicial power. In addition, the colonial legislature was allowed to enact, amend, and abolish the laws of the region on its own, guided by the idea that "each colonial government must have a considerable degree of self-government, and that most administrative decisions and laws should be made within the colony rather than by the Colonial Department and Parliament in London."
In contrast, most of the laws of the metropolis, represented by France, were directly transplanted to the colonies by the impetus of political coercion, and replaced by various means in areas where customary law was preserved, so that the colonies directly applied the laws of the metropolis. Therefore, under the unilateral input of the above-mentioned colonial policy and legal transplantation, Western constitutions began to appear in African countries, such as the 1847 Constitution of Liberia, which was modeled on the United States Constitution, including the Declaration of Independence and the Bill of Rights, with the assistance of the Massachusetts jurist Simon Griff, so that both were identical in terms of stylistic arrangement, constitutional principles, and even constitutional provisions; South Africa in the early colonial period.
With the exception of the Orange Free State's 1854 constitution, which was "largely modeled on American law, some of whose provisions were copied almost verbatim and translated into Dutch", the constitutions of the other three colonies followed the British model, and when drafting the federal constitution, because "South Africa became a British colony with Sir William Blackstone's interpretation of the doctrine of parliamentary supremacy" and "Jeremy Bentham and John Austen at the height of positivism", and after the judicial crisis caused by the Brown case, Most South Africans believed that independence could only be achieved under a British-style flexible constitution, and almost all of the 34 National Assembly deputies who drafted the constitution had been educated in parliamentary supremacy, so British-style parliamentary supremacy prevailed in South African law and politics at the time.
The 1909 constitution unquestionably adopted the Westminster model, etc., and the above-mentioned colonial policy and the initial transplantation of constitutionalism directly led to the opening of the African constitutional activities, which opened the prelude to the creation of African constitutionalism and contributed to the early germination of African constitutionalism.
In the early days of colonization, some advanced political systems in the West were directly imported into Africa in the process of governing colonies, and by the time of World War I, under the direct guidance of the colonial policy of the metropolis and the direct input of Western constitutionalism, representative institutions such as legislative committees and executive committees in Western constitutional systems began to be established in Africa, and showed common characteristics: in terms of composition, mostly European officials and missionaries, African members were few and mostly used to decorate the façade, to quote J.D. Feige, a professor of British African history. These people were not accustomed to English legislation and administrative methods and were not initially given the right to elect legislative committees".
In terms of its functions, the Legislative Council has limited legislative power, subject to the approval of the Governor and the absence of objection by the Colonial Minister, to make laws that are not binding on the Governor; The Executive Council mostly advises the Governor on his administration and has little power of its own. Specifically, in view of the differences in the style of governance, these early institutions were particularly common in the colonies under the indirect rule model, such as the British legislative committees in the Gambia in 1843 and the Gold Coast in 1850; In Sierra Leone, the Executive and Legislative Council was established in 1863; In Nyasaland (present-day Malawi), the Executive and Legislative Assemblies were established in 1907.
In Southern Rhodesia (present-day Zimbabwe), the Executive and Legislative Council was established in 1898; An advisory committee was also established in 1917 in Northern Rhodesia (present-day Zambia); In Nyasaland, there was an Executive Council in 1905 and a Legislative Council in 1907; In Buganda, in 1900 there was Lukiko (Council of State); In Zanzibar, the Conference of Protected Areas was established in 1913, etc.
In the colonies under the direct rule model, because the metropolis is mainly committed to building a highly centralized colonial rule system, the legislative, executive and judicial powers of the colony are under the strict control of the colonial government, and there is no legislature itself, the colonial authorities are only in a small area of colonies, trying to set up public participation in the deliberative bodies such as the Senate and government committees, such as in 1834, France established a Senate in Algeria composed of the commander-in-chief of the army, the civil affairs supervisor, the commander of the navy and the treasurer. The Provincial Assembly was established in 1848 and the Government Council was established under the Governor in 1881; In Senegal, there are regional councils and municipal councils modelled on the French model.
