THE NATURE AND SCOPE OF THE EXECUTIVE POWER IN ENGLISH AND FRENCH-SPEAKING AFRICA: A COMPARATIVE PERSPECTIVE*

Although the main problem of constitutional law, namely, the breadth of the Executive Power and the negative effect this might have in relation to individual liberty, is the same in the new as in the older States, it is much more acute in the former than in the latter. In their many years of evolution the older States have been able to evolve stable organs of power which operate on the basis of recognised balancing procedures, and, in some cases, to under­ take many beneficial experiments in the light of accepted theories . Thus, for instance, it has been possible in Britain to evolve a constitutional structure which, at least, offers an oppor­ tunity for the exercise of mutual restraint among the organs of government. And in the United States the Constitution assigns "all legislative powers . . . [to] a Congress . . . "1 , "the executive power [to] a President"2, "the judicial power [to] . . . [a] supreme Court . . . "3 ; a remarkable experimentation with the Montesquieu formula which draws a clear demarcation between one organ of government and another. The expanse of the Executive Power in the new States is striking. Unlike the stable nations of the West, the African States, for instance, have generally lacked a base on which to construct liberal institutions of public law; and with their fragile economic structures they have relied on the political leadership, the Executive Authority, for help in the creation of a measure of stability. These States, with their little-developed cohesion of political purpose and the con­ sequent lack of harmony in political motion, have tended to look to the Executive for direc­ tion and patronage. In these circumstances, such institutions as are currently evolving will do so under conditions in which the Executive Authority holds a special position of influence. Accordingly, although one may study such institutions in their own right as organs of gov­ ernmental authority, it is important to recognise that none of them, in the framework of pub­ lic law, could approximate to the Executive organ in terms of power and influence. This ar­ gument, if it may be of a broader validity, must carry special force as regards the new States . The aim in this article is to illustrate the general argument raised above through a study of the nature and scope of the Executive Power in Africa. One of the main factors influencing the growth of the institutions under inquiry will be the historical background, in particular, the styles of colonial rule adopted in the various countries prior to the attainment of indepen­ dence, a phase which was followed by the adoption of western-derived Constitutions . The postindependence constitutional pattern might be expected to bear important resemblances (or some forms of analogy, at any rate) to the bodies of public law from which the transplan­ tation had taken place. But, at the same time, these States might be expected to evolve novel institutions on account of the new problems of politics and of law which would, no doubt,

confront them as they organised their structures in response to particular goals of develop ment.One thus notices, with regard to the African States, the presence of important factors of both heterogeneity and homogeneity, the former arising from the different origins of constitu tional transplantation, the latter from the common problems of development which would often attract like solutions ; the latter form the essential basis of comparability even as the former pose the main challenge to comparative inquiry.Such an investigation, based on a careful selection of countries, might be expected not only to illuminate the general character of African public law but, further, to indicate any issues of priority in the development of this branch of law.The historical origin of the African States lies in colonisation by western Powers.As the most influential institution al practices on the continent have been those derived from Britain and France, it is almost natural in a comparative study to make one's selection from the two do minant traditions.In this respect we select Kenya in East Africa and the Ivory Coast in West Africa, the former representing the British influence, the latter the French.These two, further, offer a unique facility to comparative inquiry, that of fairly consistent patterns of development in the last two decades or so.Both attained independence, as we will see, on the basis of derived Con stitutions which have been modified with circumspection and exercised with occasional re ference to the traditional norms under the original prototypes.Few other African countries have observed such a "reference-relationship".

B. THE HISTORICAL BACKGROUND
In a study of Executive Power in those parts of Africa which came under European occupa tion it is necessary to ex amine, if only briefly, the colonial background against which the new State has emerged.So recent is the phenomenon of the State that, to appreciate its constitu tional structure and functioning, one naturally seeks to learn something about its historical and legal foundation.Secondly, in most of these States, the position of the Executive Au thority owes just as much to the post-independence political and constitutional develop ments as it does to the tradition inherited from the era of colonial rule.

KENYA: THE COLONIAL EXECUTIVE MACHINERY
The effective process of colonising Kenya began in 1888, when the Imperial British East Af rica Company was granted a Royal Charter and invested with governmental powers over ter ritory und er its influence.The responsibility for government, however, passed to the British Government in 1895 with the declaration of "Protectorate" status in pursuance of interna tional obligations created by the General Act of the Brussels Conference of 18904• Further responsibilities were assumed with annexation in 1920, the territory becoming "Kenya Col ony" .
The Executive machinery was established by a series of imperial subsidiary legislation, commencing with the East Africa Order in Council of 18975, which established the office of Commissioner, its occupant to be appointed by the Queen and be responsible for the con duct of government in the territory.The Commissioner was to dis charge his responsibility by making "Queen' s Regulations" , which had the force of law6 • This basic structure was to be redefined by successive subsidiary legislation in the following years, though without making any fundamental change.The Commissioner, renamed Governor in 1920, remained the law-maker, chief administrator and holder of various prerogatives including that of par don.His position as legislator and administrator was by no me ans prejudiced with the estab lishment in 1906 of the Legislative and Executive Councils7• He presided over the sittings of both Councils, had a veto power, and all iaws were expressed to be "enacted by the Gover nor with the advice of the Legislative Council".The Governor also made all senior J udicial appointments, the appointees holding office at the pleasure of the Monarch (in effect the ple asure of the Governor).The constitutional structure underwent a succession of changes between 1920 and 1963, the main factors being : (i) growing demands for increased representation in the governmental in stitutions by the various racial groups ; (ii) the Second World War, which occasioned a mea sure of re-organisation; (iii) a rising level of political awareness among the dominant African population in the last decade of colonisation, coinciding with a general move towards inde pendence in other African countries.The interactions of these forces gave rise to new dynamics of constitutional change.Under the Emergency Powers (Colonial Defence) Order in Council of the United Kingdom of 1939, the Executive Council was empowered to take important decisions outside the framework of debate in the Legislative Council; and this arrangement was to culminate in the "Membership System", a form of Ministerial organisation under which the Departments of Government were separately grouped and placed under the charge of particular "Members" within the Executive Council.Each "Member" was responsible only to the Governor for the conduct of administration in his group of Departments.The first departure from the "Membership System" came with the "Lyttelton Constitution" of 19548, under which a Council of Ministers, a smaller body within the Executive Council, was introduced.In a limited sense the new Council was to operate on the basis of the West minster constitutional model; it was "the principle instrument of Government" and was re quired to "exercise a collective responsibility for decisions on Government policy, to sup port and vote with it in the Legislature and to support that policy in public and in private9."In 1958 the "Lennox-Boyd Constitution"lO was introduced, mainly as a response to the fail ure of the earlier Constitution to ease the prevailing racial disharmony.Under this Constitu tion the structure of the Executive organ was modified, with the abolition of the Executive Council and the enlargement of the Council of Ministers .Although, as before, the function of the Council was to advise the Governor on policy and in the exercise of his powers, it was for hirn alone to take certain reserved categories of decisionsll• The Governor was given even more powers over the Legislative Council, which he could override and give legal validity to any outstanding Bill or Motion in case of delay or non-compliance if he considered such ac tion "reasonable and expedient"12.Although it by no means decreased the competence of the Governor, the "Lennox-Boyd Constitution" did coincide with a course of events which, by bringing about a gradual de centralisation of power, were to foreshadow the attainment of independence.In 1960 a Con stitutional Conference was convened in London, attended by representatives of the various shades of political opinion in Kenya, with the view of arriving at a consensus on the legal form of fonhcorning independence.The guiding principle was pronounced by the Confer ence President, the Secretary of State for Colonial Affairs : Her Majesty's Government's aim was to build a nation based on parliamentary institu tions on the Westminster model and enjoying responsible government under certain traditional conditions ••• 13 Not only did this principle concede decentralisation of power; even more important, it pointed to the kind of governmental structure which was to be phased in as a basis for inde pendent statehood.
The amended Constitution promulgated following the 1960 Conference, while retaining in tact the existing provisions on Executive Power, instituted a potential limitation to their mode of exercise, by way of a justiciable Bill of Rights.Every individual was, henceforth, guaranteed the enjoyment of personal liberty, private family life, freedom of conscience, of expression, of assembly, of private property, etc.14Although there appears to be no case in which any of these provisions was relied upon in litigation while the Constitution remained in force, it may still be argued that, in strict legality, they did impose limits on the exercise of the Executive Power.But the more striking aspect of the new Constitution was at the "political" level.As the gen eral elections of 1961, held within the terms of the Constitution, had taken place on the basis of political panies, the membership of the Legislative Council was, for the first time, divided on party lines, the stage thus being set for the Westminster style by which Government lead ership depended on "political" representation inside the elected Chamber.But this scheme would not work for a while as the largest party, the Kenya African National Union (KANU), would not agree to form a Government in protest against restrictions which were then in force against certain leading African politicians.The second largest party, the Kenya African Democratic Union (KADU), was then invited to form a Government.But this Gov ernment, falling one stage below "Internal Self-Government" in the transitional process to ward independence, was dominated by the official element and relegated to the periphery in the exercise of real power, the Governor continuing as the effective Executive Authority.
A further Constitutional Conference was convened in London in early 1962, for the pvrpose of reaching an agreement on an Internal Self-Government Constitution.At the end of the day a quasi-federal structure was proposed in which there was to be "a ... strong Central Government responsible to the Central Parliament."The Governor was to appoint a Prime Minister on the basis of party representation in the Lower House of the National Assem bly15.The other Ministers were to be appointed by the Governor acting on the advice of the Prime Minister.The Governor could dismiss the Prime Minister in the event that the Gov-ernment lost a vote of confidence; he could also remove the other Ministers on the advice of the Prime Minister.The Cabinet, presided over by the Prime Minister, advised the Governor on general administration and was collectively responsible to both Houses of Parliament "for everything done by or under the authority of any Minister in the execution of his of ficel6• " Although the elected Government, under the Internal Self-Government Constitution, was limited by a Bill of Rights and by a regional structure which devolved certain powers upon provincial bodies, in practice the more important constraint was that afforded by the dis cretionary oversight of the Governor.As the late Professor S. A. de Smith observed in the early 1960s, Internal Self-Government in the British Empire constantly meant that "The Crown ... retains full powers of constitutional amendment, and sometimes retains unre stricted legislative powers, exercisable by Order in Councij17."Under Kenya's Internal SelfGovernment Constitution, which came into force at the beginning of J une 1963, "the Governor, acting in his [own] discretion, [was to] continue to be responsible for defence, in cluding naval, military and air force, external affairs, and internal security ... 18" Thus, in law, the effective powers of the Executive Authority vested in the Governor rather than in the Prime Minister and his Cabinet.However, for our purpose, the critical aspect of the Internal Self-Government phase was not so much the introduction of a new Constitution with specific provisions relating to the Ex ecutive Power as the fact that, for the first time, a politically organised Government, sup ported by a popularly elected Legislature, had co me into being.The general elections of 1963 had been contested on the basis of party politics, KANU winning with an impressive margin and its leader, Jomo Kenyatta, becoming the first Prime Minister.The constitutional order was now being opera ted by the masses through the vote and by a Government having a popular mandate to take initiative and offer leadershipl9.Kenyatta's re-emergence in politi cal leadership after almost a decade of restriction was a fact which was destined to influence closely the pattern of constitutional development.In these circumstances, although the Governor remained, in title, the holder of the powers of Government, in actual practice he was more likely to rely on the advice of the Prime Minister and his Cabinet than take the risk of making decisions which might be legally justified yet politically unrelished.This reality was given juridical validation under the Independence Constitution of 12 December, 196320•

IVORY COAST: THE COLONIAL EXECUTIVE MACHINERY
There appears to have been one striking contrast between the British and the French colonial policy in Africa: whereas Britain often readily entrusted the government of her colonies to Governors and officials, France nearly always maintained a highly centralised administra tion in which all major decisions were taken in Paris and a dose control secured at federal and territorial levels in the overseas possessions21.The French style is to be seen in the context of the rigid administrative structure built up un der Napoleon Bonaparte, bequeathed to the Second French Republic and passed on to the la ter Republics.In this system, known as etatisme, the middle dasses, who manned all branches of the Public Service (la fonction publique) and the vital Conseil d'Etat, had evolved an omnipotent governmental structure, the overriding purpose of which has been stated as : concern for law and order, stable government and good (in the sense of efficient) administra tion: an impatience with political controversy, conflicting ideologies and interests, and all party divisions : a longing to "lift government out of politics" and provide regular adminis tration by experts22.This explains such phenomena as assimilation, a policy applied in some parts of French-ruled West Africa for as long as a century23, and the essence of which consisted in the ideal of equality between Frenchmen and Africans.Against this background it is understandable that France, in so far as was practicable, invari ably governed her colonies as federal entities rather than as individual territories ; the colonies being part of the highly centralised structure of authority of Metropolitan France.The colo nial background of the Ivory Coast, therefore, must be considered within a federal context; and in this respect it falls into three recognisable phases: (i) from 1893 to 1944 ; (ii) from 1945 to 1955; and (iii) from 1956 to 1960; each succeeding phase being marked by a modified Con stitutional Law, designed to bring about a relative liberalisation in the structure and working of government.The First Phase.Before 1894, the responsibility for administration in French-ruled West Af rica was carried by military personnel in charge of the various outposts, within the framework of the Ministry of the Marine and the Army.No formal constitutional structure existed before 1895, when a loose entity, le Gouvernement general de I' Afrique occidentale, was created to co-ordinate the administration of the eight West African possessions.This structure was given a more definite shape with the establishment of the Federation de I' Afri que occidentale franrraise (AOF), the Executive Powers of which were vested in a Gover nor-General, a senior public servant appointed by the President of the Republic.The Gov ernor promulgated all Metropolitan laws intended for the colonies, issued any necessary regulations concerning the application of laws and took all important decisions relating to administration, being supported where necessary by a body of public servants known as the Conseil de Gouvernement.At the territorial level the powers of government ves ted in the resident Lieutenant Governor, who was in turn advised by the Conseil d' Adminis tration, a body of public servants.
The Second Phase.The defeat of France in the Second World War gave rise to a re-examina tion of her colonial policies, with the main concern of opening up the constitutional structure to African participation at various levels, and that of "granting to each Overseas Territory a full political life24".The most influential of such proposals for change were those associated with the Free French, and articulated in the Brazzaville Resolutions of 1944.Incorporated in the French Constitution of 1946, these proposals did not, however, allow the colonies any significant measure of autonomy or decentralisation of power, as it was considered that such a grant would have been harmful to the unity of the Republic.The new order, much like the old, consisted of a two-tier governmental structure: the President of the Republic, who was also head of the newly-created French Union25, represented "the permanent interests of the Union" and discharged the overall responsibility of government26, while the Governor General, responsible to the Metropolitan authorities, constituted the Executive Authority at the level of the AOF27 .The Third Phase.Prior to 1946, the nature of political grievance in the AOF could be thus summarised : "The clamour of the Africans resolves into one concept: Equality28".So long as the system of assimilation facilitated elevation from the status of French subject (sujet fran�ais) to that of French citizen (citoyen fran�ais) the people of the Overseas Territories were generally indifferent to the existing concentration of governmental powers upon the narrowest base.But once this factor was removed by the Constitution of 1946 (which not only extended citizenship to all people but also guaranteed them the freedoms of assembly, association, expression, etc.) the stage was set for popular demands in the realm of politics, the flood-gates had been flung open29.It became more urgent than ever to establish au tonomous participatory units of government in the territories if their peoples, thanks to their new legal rights, were not to take a disproportionate share of representation in the govern mental institutions of Metropolitan France.Thus the Mollet Government introduced the well-known Loi-Cadre (1956), making new ar rangements for government in the Overseas Territories.The federal level of administration in the AOF was to be phased out and replaced with stronger territorial units based on the Governor and a form of Cabinet, le Conseil de Gouvernement, responsible to a legislative body, l'Assemblee Territoriale30.In spite of this new system, however, the Governor re mained dominant, certain spheres of decision making being reserved to hirn alone.Not only did he preside over the meetings of the Conseil; the Governor could also veto decisions of the Assembly if he considered these to be ultra vires or likely to prejudice the national defence, public order, security or civil liberty.The Fifth Republican Constitution took the process of decentralisation of power further still.The Overseas Territories were each elevated to the status of "Internal Self-Govern ment" (Republique autonome), with a Constitution providing for government within the ambit of a French Community31.Although these Constitutions were of standard form, all based on the French model32, most of the territories adopted simpler procedures where this was possible.The Ivory Coast Constitution33, for instance, provided for an Executive Au-thority consisting of a Prime Minister who was also Head of State, and a Cabinet appointed by hirn.The Government was responsible to a new legislative body, the Assemblee Legisla tive, which could bring it down on a vote of confidence.Like his French counterpart the Prime Minister had a law-making initiative "concurrent with that of the members of the Legislative Assembly34" .He also held a broad lawmaking competence within the exclusive Executive domain (Je domaine du pouvoir reglementaire )35 and could act by ordinance in the exclusive Legislative domain (Ie domaine de la loi)36 if the Legislature consented to this .The Prime Minister's powers were, however, limited by the Community structure which res er ved certain areas of competence, namely, foreign affairs, defence, economy and finance, strategie minerals, etc.37, to the French President as head of the confederation.The Community, however, came to an end in 1960, each Overseas Territory becoming a full-fledged independent State.While it lasted the confederation had revealed certain major weaknesses , in particular, it had represented an unequal political and legal relation between France and the Overseas Territories.

C. SOME COMPARABLE ASPECTS OF THE COLONIAL EXPERIENCES
In both Kenya and the Ivory Coast the evolution of Executive Power was marked by a con centration of authority in few hands.This feature might be attributed both to common and to specific aspects of the British and the French colonial policy.The overriding purpose of the colonial Powers had been to maintain law and order so as to facilitate the growth of socio-economic infrastructures.To attain this objective a strong and efficient administration with a focus of competence on the narrowest base was considered essential.In the British possessions it was the constant policy to set up relatively inexpensive control structures which imposed a minimal bur den on the imperial Government.The general for mula was to vest the Executive Power in a Governor who had an almost unfettered discre tion.As Nwabueze notes: Government was conceived in terms of a centralised authority flowing from the imperial power to a single governor as the sole representative of the monarch for the exercise of the en tirety of her powers and jurisdiction within the dependency38.What instructions the British Government did issue were by no means intended to qualify the Governor's supreme authority.It follows that little regard was paid to the concept of control of power; it would appear, indeed, that there was seen to be a need to confer more powers rather than restriet those which were already in force.If Britain's policy was pragmatic and mainly guided by considerations of cost and conveni ence, that of France had an ideological character: in the then fashionable precept of etatisme, France and her overseas possessions all belonged together (une Republique indivisi b ie) and the entire unit was subject to but one chain of administration.This system, like that obtain ing in the British colonies, was hardly reconcilable with the idea of control of power as an ideal of constitutional theory.Further , as the real holder of power, the Metropolitan Head of State, was beyond the jurisdiction of the colonial institutions, no control of his powers nor those of his agents was possible; such control as there might be could only come from Met ropolitan institutions, but their role in this respect was not likely to be constant or regular as their main interest was confined to France itself.In both Kenya and the Ivory Coast, a rapid decentralisation of Executive Power is in evi dence towards the very end of the colonial era.In each case the Governor, though he remains in law the holder of the Executive Power at the local level, in fact gradually surrenders power to an elected Executive Authority supported by an elected Assembly.Thus, at indepen dence39 the Governor's disappearance leaves behind a Parliamentary Government based on the Westminster or French model as the case may be.At this stage the official policy of the nationalist Government is to safeguard the Constitution and to preserve the inherited prin ciples and procedures of public law.Against this background one might have expected several principal factors to have an influ ence upon the subsequent course of constitutional development: (i) the transplanted princip les of public law; (ii) the colonial experience; (iii) the needs of practical politics; (iv) tradition al ideas and practices (while these had played little part in the organisation of the colonial Sta te, some of them might now be restored in the search for ways of legitimation for the go vernmental process).The mutual interaction of (at least some of) these factors might be ex pected to produce specific institutional patterns of interest to comparative study.

D. THE STRUCTURE OF THE POST-INDEPENDENCE EXECUTIVE AUTHORITY
Our interest in this Section is both methodological and utilitarian: methodological in so far as we address ourselves to a cardinal aspect of comparative Inquiry, namely, the structure of the institution; utilitarian inasmuch as we lay the basis for a treatment of the second crucial theme of the comparatist, namely, the functioning of the institution40• As alluded to earlier, the structure of the African Executive Authority at independence is, in general, modelIed on the tradition of the former colonising power.Several causes may be ad vanced for this tendency.Colonial possessions tend to be wanting in traditions of centralised government, there often having never been a unified State of the modern kind prior to the ad vent of colonialism.Even though over the colonial period an enlightened and dependable body of native personnel may have sprung up, this generally fails to arrive at any consensus on the basis of which a constitutional philosophy might be founded.It is rarely possible to evolve such a philosophy prior to independence because in nearly all cases the colonial au thorities have placed varying degrees of restriction on local political activity, the colonial or der, an imposition from without, being essentially inconsistent with such activity.Thus, at independence the nationalist regime often has little acquaintance with any constitutional tradition but that of the "mother-country" (and, of course, that of the colonial period41).The notable exception to this syndrome was, of course, the United States of America, which emerged from colonial subjection with a united will manifesting itself in a highly stable Con stitution.This may be simply explained; apart from the fact that the American settlers were people of great political consciousness (this accounted for their trans-Atlantic adventure), this attribute had not suffered much under colonialism as the arrival of independence was only the climax of a sustained attempt to win autonomy from Britain.Under both the British and French Constitutions, the structure of the Executive Authority, the person or body entrusted with the exercise of the Executive Power of the State, reflects one main concern: to avoid a concentration of power in the same hands.In each case this anx iety has its origin in historical experience, with the Stuart dynasty and the Ancien Regime, respectively.The Executive Authority, at the highest level, consists in two different persons entrusted with "mutually countervailing" powers.In Britain the daily conduct of govern ment is performed by the Prime Minister and his Cabinet within a climate of goodwill and reverence symbolised by the "dignified" organ, the Monarchy.While the French Constitu tion, like that of Britain, provides for a dual Executive Authority, it does not draw quite so clear a line between the "efficient" and the "dignified" functions.The Executive Authority here consists of the President of the Republic, on the one hand, and the Government, com posed of the Prime Minister and the Council of Ministers, on the other.Unlike the British Monarch, the French President plays an active role in the daily conduct of government, ap pointing the Prime Minister hirns elf, apart from presiding at meetings of the Council of Ministers42• Kenya's Independence Constitution provided for a dual Executive of the British kind; in deed, the parallel was all the closer as this Constitution, in effect, introduced "Dominion" status under which the British Monarch was also Kenya's Head of State.Constituting the "dignified" organ, the Queen was represented by a Governor-GeneraI43, while the "effi cient" organ consisted in a Prime Minister and his Cabinet, all members of the Legislature enjoying majority support in the House44• Although the two facets of the Executive Author ity seemed to be but a replica of the Westminster style, however, a closer observation would have revealed profound differences.According to Bagehot the "dignified" organ derived its authority from its constant reality as the symbol of nationhood and of State leadership45.In relation to Kenya such a symbolic role had not only emerged precipitately, but in almost di rect succession to the epoch of the Governor's omnicompetence.Further, the Monarch was not physically present and was represented only by an appointee who had hirns elf no natural symbolic standing.Thus, the "dignified" aspect of the Independence Constitution appeared divorced from the fundamental assumption of the British Constitution.In Bagehot's con ception, "Without [the Queen] in England the ... English Government would fail and pass away46."If we transpose this link to the Kenyan context it becomes obvious that the absence of the "dignified" organ from the social life was likely, to say the least, to weaken considera bly the "efficient" working of the Prime Minister and his Cabinet.This deficiency soon be came apparent, and solution was sought by way of constitutional amendment and the incor poration of additional values into the body of puhlic law.
A Senegalese scholar, Ibrahima Fall, describes the constitutional life of independent Africa as falling into three phases : "imitation of western tradition", "taking of stock", and "au tochthony"47 .The arrival of the last phase in Kenya and the Ivory Coast would appear to have taken in teresting, contrasting forms; in Kenya it came a year after the attainment of independence, being introduced by a series of constitutional amendments ; and in the I vory Coast it was em bodied in the Independence Constitution itself.While in Kenya the Constitution was to be amended under the pressure of immediate need, that of the Ivory Coast seemed to based on a careful foresight of political trends; it was so flexible as to require no major amendment.Thus, from differing start-points the two countries set out to develop their own appropriate constitutional structures.
Republican status was introduced in Kenya by an amendment of the Constitution which es tablished the Presidency, its incumbent being both Head of State and Head of Government.The President's term of office was tied to that of the National Assembly, from the member ship of which he appointed his Cabinet.This change war rationlised, first, on the principle of autochthony: [We] propose that strong national leadership be assured by the selection of a President who is Head of State and Head of Governrnent, instead of the illusory arrangement in which you have a constitutional President and someone else as Head of Government.This arrangement is just not understood by our people ... The historical process by which, in other lands, Heads of State, whether kings or Presidents, have become figureheads fis] no part of our Af rican tradition.So in this respect we . . .reject the Westminster model48.
In the African social context, it was argued, the dignity of leadership inhered in its overall competence in all spheres of decision making rather than in its disintegration into lesser co m ponents.As regards the elective aspect of the Executive Authority the Government founded its case on a blend of traditional practices, empirical logic and a measure of eclecticism: The people are asked to elect a Parliament to be their spokesman and the instrument of their destiny.In our view it is nonsense for any part of their Government to be outside Parlia ment49• The new Cabinet was rationalised on the basis both of foreign experience and of traditional ideas : Here . . .we seek out the modern constitutional form most suited to our traditional needs ... Our people have always governed their affairs by looking to a Council of Elders elected and headed by their own chosen leader, giving them strong and wise leadership.That tradition i.e. [team government] -which is an Africanism -will be preserved in this new Constitution50• These developments, with regard to the structure of the Executive Authority, had the effect of drawing Kenya away from the traditional Westminster model and towards the French model in the form adopted in many of the former Overseas Territories.The anomaly in which the francophone States of Africa had experienced the "imitation" [phase] of development earlier than usual may be explained on two main grounds : Firstly, the context in which France granted independence to her African colonies necessarily en couraged an early experimentation with the constitutional structure ; apart from the fact that the "mother-country" herself had adopted a new Constitution only two years earlier, the African leaders, most of whom had served as deputies in French Parliamentary bodies at a time of grave government instability, were naturally anxious to install a powerful and poten tially durable Executive Authority.Secondly, the Fifth Republican Constitution, having lit erally been disigned to suit the personality of General de Gaulle51, could hardly fail to im press upon the African leaders the vitality of the position of President de la Republique in the political and constitutional life.Thus, under the Ivory Coast's Constitution the Executive Authority was single, the Presi dent of the Republic symbolising the dignity of the State as well as heading the dis charge of its "efficient" function: The President of the Republic is the Head of State.He symbolises the national unity.He en sures respect for the Constitution.He assures the continuity of the State.He is the guarantor of the independence of the Nation and of the territorial integrity52 ... In spite of initial contrasts, when the process of change did begin in Kenya it took the same direction as that taken by the Ivory Coast.The concept of strong and wise leadership convas sed by the Kenya Government was strikingly reminiscent of de Gaulle' s Bayeux proposals53 of 1946, which were incorporated in the Constitution of 1958, and the essence of which was the concentration of powers upon the Presidency; but Kenya's new Executive structure was more similar to that of the Ivory Coast as well as of those former Overseas Territories which had adopted the single rather than the dual leadership.While Kenya, in making the post-independence constitutional changes, was concerned only with domestic problems of State organisation, its course of action had a wider significance for purposes of comparative inquiry.Even as she retained important aspects of the trans planted body of public law, Kenya was subscribing to a new approach which had been origi nated by the first African States to gain independence in the period beginning with the year 1957 and ending with 1961.This approach has been characterised as "neo-Presidentialism" its upshot being a match of the American Presidential system and the Westminster model which extracts from each stream only those aspects which will serve to fortify the position of the Executive Authority in relation to the other organs of government54• Although the foregoing aspects reveal considerable similarity in the structure of the Execu tive Authority in the two countries under study, there are also notable contrasts .For in stance, while the Kenyan President has the dosest possible link with Parliament, that of the Ivory Coast is not hirns elf a deputy and his entire Government is tightly insulated from the National Assembly by a rigid conception of the separation of powers doctrine55• Another important contrast concerns the office of Vice-President, for which the Ivory Coast makes no provision, while the Kenya Constitution provides that the Vice-President "shall be the principal assistant of the President in the discharge of his functions"56.In the Ivory Coast a convention has evolved since independence whereby the President appoints one ot his Ministers to discharge the ordinary functions of his office during the former's absence.

E. THE NATURE AND SCOPE OF THE EXECUTIVE POWER IN THE POST-IN DEPENDENCE PERIOD
By the Executive Power, Montesquieu said, "[the prince or magistrate] makes peace or war, sends or receives ambassadors, keeps the peace, prevents invasions57 ."This was only a gen eral way of describing the foremost characteristics of the Executive Authority as the main re po si tory of the initiative of public decision making in any country.Such decisions fall at two recognisable levels ; the more general level of broad policy formulation and the more closely defined level of the detailed implementation of policy58.At the first level one is mainly con cerned with prerogatives as well as with such specific discretionary powers as may be confer red by the Constitution or by ordinary laws.At the second level one is primarily concerned with the exercise of a more limited kind of latitude, usually entrusted to subordinate agen cies of the Executive Authority.There is, however, also a third level, though this is not as readily recognisable to lawyers as the other two : one is here concerned with the de facto in fluence upon the public institutions and functions which the Executive Authority may come to enjoy, thanks to personal peculiarities or the special historical circumstances which have accompanied the process of succession to leadership, wh at the French scholars have termed "the personalisation of power"59.This aspect of power deserves due mention in a study of law as it will often have a direct effect upon the "practical validity" of the law.

PREROGATIVES AND RELATED POWERS
In its historical sense the concept of "prerogative" belongs to the Common Law; and it refers to those residual governmental powers which are recognised by the Courts as inhering in but one person, the Monarch.Under Kenya's Independence Constitution, most of the powers which would fall to the Monarch within the concept of prerogative were defined and specially consecrated.But as the British Queen was then also the Queen of Kenya, a question might be raised as to wh ether in relation to Kenya she had not lost the prerogative and now derived her powers solely from the written Constitution60• It might, indeed, be argued that the formal enact ment of these powers had effectively abrogated them as prerogatives; for not only had they ceased to belong to the unwritten Common Law, but the Sovereign's legal right to act with out fetters to her discretion had also been abrogated.Thus, although the normal powers of the prerogative kind were still exercisable it was henceforth more appropriate to regard them as special discretionary powers61• Under the Constitution the Executive Power was to be exercised by the Governor-General "either directly or by officers sub ordinate to him62."In specific terms he was empowered to appoint the members of the Government, but as already mentioned, this power like that of dismissal was qualified to the extent that the Governor-General was to be guided by the con cept of majority representation in Parliament63• Although the Governor-General's power of pardon was described as a "prerogative", it was nevertheless specifically regulated and made exercisable after consultation with "an Advisory Committee on the Prerogative of Mer cy64 ."In Britain by contrast, the Queen's power of pardon is a Common Law prerogative exercised by her over her Courts and in her own discretion65.While the right to prorogue Parliament was unfettered, the Governor-General's power of dissolution was made subject to the disposition of the Parliamentary majority on the same lines as those obtaining in British practice66• The structural changes in the Executive Authority which took place following the attainment of independence are of special interest to us here, from the perspective of the nature and scope of the Executive Power.The eminent position accorded the Head of State, in the coun tries in reference as elsewhere on the continent, was to be matched by a corresponding grant of power.The situation was epitomised in an analogous context by the following remark of the Tanganyikan leader, J. Nyerere : To us, honour and respect are accorded to a Chief, Monarch or President not because of his symbolism, but because of the authority and responsibility he holds .. .. Second, the Presi dent must not only carry the responsibility for the actions of government: he must also have the power to fulfil his responsibilities67 .
The Kenyan President was invested with far-reaching powers, free of any significant con stitutional limitations.Such powers may be considered under three sub-heads : (a) Subject to the provision of the Constitution that there is to be at least one Parliamentary session in every year, the President has an unfettered discretion to prorogue the National As sembly "at any time" and to summon it to new session "at such place within Kenya ... at such time as [he] may appoint", and he "may at any time dissolve Parliament68."By contrast the Ivory Coast Constitution, with its conception of separation of powers, makes no provision for prorogation or dissolution, the life of the National Assembly and the duration of its sessions being defined by law and secured from intervention by the Executive Authority69.But this "limitation" has not been seen as a dis advantage by the I vorian leaders ; quite the reverse, as was affirmed by the then President-designate, Hlix Houphouet-Boig ny: "The Assembly must legislate and the Executive must govern.When the Assembly ap proves th � Government's general program, it becomes obligated to give the Executive the means to carry it oueo."While the Kenyan President has the exclusive power of assent to Bills, it is not altogether clear whether he retains a right of veto.In line with the British practice, the Constitution provides: Upon a Bill that has been passed by the National Assembly being presented to the President for assent, it shall become law and shall thereupon be published in the Kenya Gazette as law71• By analogy with the convention of the British Constitution, one supposes that the Presi dent's "prerogative" here is only a formality.(In any case the Government has played the dominant role in the process of law-making, and, in view of its control over the individual Member of Parliament through party machinery, it seems hardly likely that a major con troversy would arise in relation to the Presidential power of ;1ssent.) The Ivorian President has a similar power, the Constitution providing that he is to sanction and promulgate the laws passed by Parliament within a specified period72• There is the con trast, however, that the President in this case may, in effect, exercise a suspensive veto by re questing -a request which may not be refused -a second deliberation.The veto may be over riden but only by a majority of two-thirds of the total membership of the National Assem bly73.The President may, further , delay the passage of a law in relation to which he has exer cised such a veto by demanding that it be reconsidered only at the next ordinary session of the Assembly.
The President of Kenya is entitled "to address the National Assembly at any time he thinks fit" in his capacity as Head of State74.On such occasions he takes the "Chair of State", from which his address "shall be heard in silence and not followed by any comment or ques tion75" !Such an address differs from the Queen's Speech from the Throne in that whereas the latter is essentially a formality, performed within the concept of the "dignified" function, the former is subject to no limits of time or subject, and could be employed, at least in theory, as a device for the conduct of the ordinary process of government.A parallel provision is made in the Ivory Coast Constitution which, reproducing the French concept of the "right of Address" (le droit de message), provides: The President of the Republic communicates with the National Assembly either directly or by a message read on his behalf by the President of the National Assembly, and such co m munications may not be made the subject of debate76.This right, like it is in Kenya, could facilitate a simultaneous performance of both the "dig nified" and the "efficient" functions.While in both countries the Executive Authority enjoys wide powers of initiating the process of law-making, the specific provisions relating to these bear contrasts which correspond to those existing between the British and the French practice.Except in the sphere of finance, the Constitution of Kenya confers no special law-making function upon the Executive Au thority, while that of the Ivory Coast go es further still, and, following in the French tradi tion, stipulates in clear terms the subjects which co me within the competence of the National Assembly, all the rest being reserved to the exclusive sphere of the Executive77.Also derived from French law is the provision of the Ivorian Constitution which empowers the President of the Republic to sub mit a Bill to referendum and thereafter promulgate it as law without recourse to the ordinary legislative procedure78.The Constitution of Kenya has no similar provision.

THE POWERS OF SUBORDNINATE AGENCIES
While it is for the superior organs of the Executive Authority to exercise powers entailing high discretion, the execution of such decisions is often left to the ordinary departmental administration.
In practice the powers exercised by the various agencies in the implementation of Govern ment decisions are not always "limited" ; the position may differ from one country to another.In Britain such powers are truly limited in the sense that they generally derive from Ministerial or departmental regulation which provide a definite framework for their contr"ol by the Courts, apart, of course, from the availability of Parliamentary control.That is not the case in France, the Ivory Coast or Kenya, countries with extensive networks of "Provin cial Administration", within the ambit of which the widest discretion is often exercised by public servants.In Kenya, as already seen, the colonial era left behind a powerful structure of State adminis tration which invested public servants with crucial decision-making responsibilities.This heritage has had an obtrusive impact upon the post-independence social life, in particular, as regards public order, in which sphere the senior members of the Provincial Administration have exercised far-reaching powers85• The position is hardly different in the Ivory Coast, where the Prefects and Sub-Prefects effectively carry the daily authority of Government in the departements, the relevant law providing that: The Prefect may take any coercive measure in the interests of the security of the State, the safety of individuals and the wholesomeness and the peace of the public, the observance of national patriotism86.The Sole Political Party.The charismatic leaders hip and the single party performed com plementary roles in the process of power concentration.As alluded to above, charisma is only a start-point, which ought ideally to be transformed into relatively impersonal yet more viable institutions of government (the alternative is loss of the charisma itself in the longer run92).In Africa the sole party has generally been resorted to as an expeditious device for stabilising the institutions of government in the light of dedining charismatic authority93.Kenya and the Ivory Coast, although daiming to be only de facto one-party States, have ef fectively legalised this position in important particulars.Under the Constitution of Kenya nobody may participate in general election without party approval94, while in the Ivory Coast it is provided by law that all candidates for Presidential or Parliamentary election are to be those sponsered by "a legally constituted party or grouping95."In either case the party acquires a juridical character, and the questions of power in this sphere become equally re levant to the nature and scope of the Executive Power as a strict constitutional matter, the Head of State being in each instance also the head of the Party96.The extensive influence de riving from this source can hardly be underestimated in a constitutional study such as the present one.

F. A COMPARATIVE REFLECTION
We submitted at the beginning that "although one may study [the institutions of public law of the new African State] in their own right as organs of governmental authority, it is impor tant to recognise that none of them ... could approximate to the Executive organ in terms of power and influence."The immediate realisation arising from this study is that the Executive Power and influence pervades and dominates the public life in the countries in question; that this experience boasts an historical continuity from the very beginning of the modern State, with the advent of colonialism, to the present.If the omnipotent Executive was essential to the colonial order by the very definition of that order, it has proved equally vital to the post independence regime as a device for creating and developing a nation.In these circumstances it is hardly surprising that the critical parameter in the development of public law in post-colonial Africa has been, not the British or French principles of govern ment as such, nor even of the local tradition, nor indeed of any single factor; but rather, of the ill-defined problems of leaders hip in a novel context of development, which have con fronted virtually the entire continent.It is on the basis of this common denominator that each State has looked to its historical past, to the former "mother-country", to the tradi tional experience, to new styles of political logic, etc., for reinforcing strains of public law; the effect being that though these States may ding to many western institutions and to their attendant procedures and terminologies, these are unlikely to retain the same signification which they have borne under the original models.Wh at has taken place is a selective process of transplantation, the ultimate goal of which is to assemble a new tradition of public law.The comparative method is invaluable, to adopt the terms of D.G.T. Williams, "both as an aid to understanding different constitutional systems and as a means of widening our ap preciation of particular problems97."Apart from seeking to shed light on an aspect of the functioning of the British and French systems of law as applied in Africa, we have attempted to illustrate the general problem of the nature and scope of the Executive Power.If, as seems obvious, the main problem of public law today is how to design effective controls for the Ex ecutive Power, the discussion in this artide, it is submitted, leaves no doubt as to the urgency of this matter in Africa.This is particularly so in view of the fact that the States in question have since independence adopted Executive Power structures the susceptibility to control of which, by traditional western techniques, is not yet dear.
The English Poor Law and Egalitarian Agrarian Reforms in the Third World By H ARTMUT E LSENHANS The follwing article shows that the English Poor Laws have been an effective instrument of retransfer of income to poors.The article refutes neoliberal and marxist theory of previous accumulation as rise in surplus by cheapening labour.Instead of this structure, the English previous accumulation has been caracterized by a rise of real income for popular masses.The Poor Laws are one example of the rise in popular incomes.The article starts from the observation of Georgescu-Roegen that in undeveloped societies with average product above subsistance level marginal product of labour may be subsistance level.In that case, the intrusion of market relations and the maximization of profit will lead to unemployment.There will be only employment for those that for that part of the labour fo rce, which given the existing quality and quantity of equipment and soil fertility will pro duce a surplus.This surplus actually may be very high.If this surplus is taxed the private sec tor will not diminish employment, because the rate of profit will be highest at the same vol urne of employment as before.Nevertheless the tax revenu can be used for subsidizing those workers beyond the point of profit maximization.By cheapening the workers whose margi nal product is below subsistance level employment and total product can be raised, whereas at the same time the part of profits in total income diminishes.
The article shows then that an egalitarian agrarian reform may have the same consequences in the Third World today and tries to elucidate the notion of structural heterogeneity as di vergence of sectoral factor productivities, requiring the control of foreign economic relations and the development by using diminishing unit costs in mass production lines.
The Nature and Scope of the Executive Power in English and French-Speaking Africa : A Comparative Perspective By J. B. ÜJWANG This article focuses its attention on the character of the executive power in new African States.The legal framework in which this power is exercised takes differing forms depending on the particular model whereupon a given constitution has been drawn up.The preponder ant juridical inflences in African constitition -making have been those of Great Britain and France -these two having been the chief colonial powers (through which link they were able to bequeath their own concepts of public law to the new States at independence).It is one of the primary objects in this study to highlight the relationship between constitutional theory and the reality of power; this aspect is brought out by a comparative treatment which aims to facilitate a simultaneous glance at the part played by the differing lines of western influence.It is also an object of the inquiry to assess the extent to which transplantation of laws, with regard to the domain of constitutional law, has been a reality in Africa.The study sets out with several propositions, one of these being that, the course of constitutional development in the former British and French colonies was destined to take an essentially similar direc tion, owing to the fundamental similarity of economic, social and political circumstances which typified thes countries -and that notwithstanding their strikingly dissimilar juridical foundations.
(a) powers in relation to the Legislature; (b) powers in relation to the Executive establishment itself; (c) powers in relation to the ] udiciary.
(b) In the post-independence constitutional amendments the Kenyan President was given full powers of appointment and dismissal in Government79• A similar position obtains under the Ivory Coast Constitution, the President of the Republic in his capacity as "Head of the Administration" naming and terminating all public-office holders80.(c) Subject to specified qualification requirements and to a special procedure of dismissal, the President of Kenya has an unfettered discretion in the appointment of the Chief Justice, while he is required to consult with an independent body, the Judicial Service Commission, before making other appointments to the Bench81• The corresponding powers of the Ivory Coast Executive are couched in wider terms, the President of the Republic being designated as "guarantor of the independence of the judges82", in which capacity he makes appoint ments to the Bench acting with the advice of the Minister of Justice and of the Superior Council of the Magistrature83• In both countries the Head of State may intervene in the J udi cial function by giving a pardon to convicted persons84•

3.
THE EXTRA-JURIDICAL POWERIn both Kenya and the Ivory Coast, the general direction of constitutional development has been determined by certain dominant issues of politics.In Kenya these have been, the poli tics of colonialism in the first half of the century and the politics of multi-racialism in the last decade of colonial rule; in the Ivory Coast the politics of assimilation in the early part of the colonial period, and, thereafter, the politics of autonomy; in the post-independence period the singular influence in each case has been the charismatic leadership of the first Head of State.But, in the later years, charisma as a source of power has coincided with yet another important political development, namely, the advent of the single party.Charismatic Leadership.The attainment of independence in each African country that had experienced colonial rule presented the new State with one fundamental challenge, that of legitimacy.This problem had not existed in colonial times inasmuch as the colonial au thorities had made no pretensions of legitimacy.For the independent Governments, how ever, it was vital to lay a new basis of civil obedience and public order, founded upon a claim to legitimacy.According to Max WeberB7 an authority may gain legitimacy in at least one of three ways : (a) through tradition; (b) through a public recognition of the rational-legal character; (c) through charisma.It will be appreciated that in the case of Kenya and the Ivory Coast the first two methods were inapplicable and only the third was88• Since these countries were breaking off from a past of authoritarisanism there could not have been any tradition left to sustain the concept of legitimacy; in the same way the rational-legal character was lacking as the scope of constitutional debate had in each case been confined to but a slim elite, apart, of course, from the fact that the bulk of the population was illiterate.Inevitably, therefore, na tional direction had to come from someone who, in the public's eye, was "endowed with great personal worth ... [maybe] ... from GOd89", someone "blessed with supernatural and extraordinary powers unbeknown to other mortals90."In Kenya the undisputed natural leader was Jomo Kenyatta, who apart from fulfilling the Weberian test also sported his own unique style of politics which invariably won hirn the popular acclaim91.A similar recognition was accorded Felix Houphouet-Boigny in the Iv ory Coast.It is hardly surprising, therefore, that the course of constitutional development in both States in the last decade and a half or so has closely reflected the personalised authority of the Founding Father.