COMMENT
Caroline Nalule, University of Oxford
The People in Question raises important questions on citizenship, its standing in law and the constitution; questions which have previously been taken for granted. It shows the breadth and depth of citizenship regimes and what ought to be pondered, deliberated and addressed. It covers such broad legal concepts informed by numerous multi-disciplinary scholarly literature and works that span the gamut of historical and contemporary debates, with a truly global dimension. By marrying all these elements together, Jo Shaw has undertaken a task of herculean proportions. She not only covers key elements of the law(s), but also delves into what informs the laws, looking well beyond the law in order to explain it. There are a number of issues that the book raises, and which would make for interesting further engagement and discussion, but I shall restrict myself to commenting on two of them. That is the legacy of colonialism and the meaning or, rather value, of citizenship denuded of democracy.
Although the book acknowledges the impact of colonialism and attempts to tackle it from a multi-dimensional perspective, it does not go deep enough, particularly as regards the African experience. One of the things Shaw does is to discuss the issue of ‘decolonisation’ under the phenomenon of ‘splintering states’ (p. 227), which, in my view hardly does any justice to the subject. It tends to subsume a highly complex, nuanced and particularistic topic into one where it does not aptly fit, and thus distorts, to a degree, the legacy of colonialism on citizenship regimes of the emergent states. For instance, one of the questions that arises is, was the British Empire a state stricto sensu, so as to equate the decolonization process to ‘splintering states’ as it were for the former Yugoslavia? More so, considering that different territories of the British Empire held different statuses such as dominions, colonies, protectorates, and mandates, and the status determined whether a territory was under direct or indirect rule. Well, some states such as India were partitioned at the time of independence, but this is not the case for all former British colonies or protectorates. Hence, I think the notion of colonization/decolonization needed a deeper, nuanced and, perhaps dissected examination than it was accorded in the book. Such examination would have been aided by a broader engagement with literature by African scholars or scholars on African citizenship regimes and their perspectives on post-colonialism.
Thus, I find that the narrative and arguments in the book are heavily based on a Western concept of and approach to citizenship, understandably so because these are the very concepts and approaches that still apply and prevail in Africa. The relevant constitutions and laws, as Shaw largely demonstrates, are a testament to that. Shaw relies more on Western literature and how it conceptualizes and frames the colonial legacy and does not really engage with works by African scholars or scholars of African citizenship, with the exception of Bronwen Manby, whose work is quite expansive and ground-breaking in its coverage of citizenship laws in Africa.
The book examines ‘citizenship’ as a colonially transplanted concept, without necessarily reflecting on the pre-existing notions of ‘belongingness’ in the colonized societies. Admittedly there is relatively, a dearth of literature on citizenship in Africa, but that which exists offers deep and valuable insights that would greatly enhance any study aiming to explore constitutionalism, citizenship and the law. Scholars seem to agree that the colonial notion of citizenship among African states was meant to benefit the colonial settlors rather than the native Africans (Hansen 1999, Mbembe 2001, Miller 2011). Africans were essentially relegated to the status of subjects (Mamdani 1995, Mbembe 2001). Studies by Peter Ekeh (1975) and Mahmood Mamdani (1995) are rather seminal in this respect, explaining how the concept of citizenship and ensuing laws were instruments of civic inequality between the colonizer and the colonized. Therefore, at the point of decolonisation, African states were bequeathed a skewed notion of citizenship that was bound to be problematic at the outset of independent governance. This acknowledgement is virtually absent in Shaw’s discourse on decolonisation, but it would have dovetailed with her discussion on inequality that recurs throughout the book.
Accordingly, the book misses out on a particularised discussion on some of the challenges African states have faced trying to reconcile the bequeathed notion of citizenship with traditional notions of belongingness, as these states simultaneously endeavour to entrench democratic governance. Edited collections by Emma Hunter (2016), and Sara Dorman and Daniel Hammett (2007), work by Said Adejumobi (2005), among other scholarly works, analyse some of the pertinent issues of citizenship in Africa and explore the concept of ‘belongingness’ which is usually associated with ethnicity among many African societies. Understanding the significance of ethnic groups and ethnicity, as one of the ‘sub-national’ influences would perhaps provide some insights into the shaping of citizenship regimes of many African states, and, probably, why there seem to be stronger inclinations towards ius sanguinis basis for citizenship attribution.
Shaw remarks that “…there are no identical ways in which constitutions deal with the issue of citizenship” (p. 37). The statement tends to be a generalisation or speaks to many present-day revised or amended constitutions and disregards the independence constitutions of former British colonies in Africa whose provisions on citizenship were by and large identical. Such a generalisation deflects not only from the question of just how ‘undemocratic’ these constitutions were (most of which were completed in London), but also from dealing with the issue of the compatibility of these transplanted and duplicated codes on citizenship with notions and understanding of ‘belongingness to a polity’ that prevailed among the diverse African nations and states. The latter is a discussion into which hardly any scholars have ventured. Additionally, although some African states have since updated their citizenship laws (be it in the constitution or statute) and thrust a ‘democratic’ stamp on them, they propagate the same transplanted notions on citizenship. Hence most of the concerns raised in The People in Question and as illustrated therein warrant critical evaluation in and among modern African states and societies.
Yet another vital and interesting aspect, which I only raise here for purposes of provoking further discussion and analysis, is the issue that the author raises when she speaks of the ‘reality in practice’ not always matching the ‘rhetoric of constitutions’. The question I pose here is: what is the value of citizenship in authoritarian or less (or non-)democratic states? Where the so-called people with the power are rendered voiceless and powerless. Their power remains a fiction in all but the paper on which it is written. In such situations, the constitution or the power of it and all that it may promise, seems to share the fate of the people. What then is the significance of constitutional citizenship where the constitution itself is shaky?
Perhaps a vestigial question for me provoked by Shaw’s exposition concerns the place of law (constitutional or statutory) in determining questions of citizenship? Should the law be regarded as paramount or should it be subject to higher authority? And what or who is this authority? The people in question? If they can be sufficiently and fairly identified as well as given the platform and space to effectively and constantly assess the issue of citizenship, perhaps the issue for each state would then be one of devising the best way for the people to express their will. But I guess my conundrum is very much shared by Shaw in questioning who actually comprises or should comprise ‘the people’.