Constitutional change and military rule since independence

Like the vast majority of former British colonies elsewhere in Africa, all the newly independent states in anglophone West Africa soon adopted new republican constitutions, with a president replacing the British monarch as head of state and, with the initial exception of Nigeria, abolishing the office of prime minister as head of government. By the mid-1960s, however, constitutional order was overthrown by the military in Ghana, Nigeria and Sierra Leone, and in later decades Liberia and the Gambia also experienced significant periods of military rule.Footnote ¹⁰

The country in anglophone West Africa with the longest history of military rule is Nigeria, where different military regimes ruled for almost 30 years. During the first period (1966–79), the 1963 Constitution was largely suspended and modified by military decrees. After a counter-coup only a few months later, a Supreme Military Council (SMC) was established. Following two further coups in 1975 and 1976, General Olusegun Obasanjo initiated a successful transition to civilian government, which led to the adoption of the 1979 Constitution. This government lasted for only three years, however, until another coup, led by Major General Muhammadu Buhari, ushered in a second phase of military rule (1983–99). As in 1963, a military decree largely suspended and modified the Constitution, and a new SMC, later renamed the Armed Forces Ruling Council and eventually the Provisional Ruling Council, was established. After a first attempt failed in 1993, Nigeria finally returned to civilian government again in 1999. Overall, during this second period of military rule, over 100 articles of the 1979 Constitution were permanently suspended or modified, reaching its nadir in 1994 when General Sani Abacha issued a military decree that placed his government above the jurisdiction of the courts, thereby effectively giving his regime absolute power.Footnote ¹¹

Ghana’s experience with military rule is almost as long as Nigeria’s. It started in 1966 when a first coup, led by Colonel Emmanuel Kwasi Kotoka, removed the one-party regime that Kwame Nkrumah had installed two years earlier. A new constitution was adopted in 1969, but only three years later another coup, led by Colonel Ignatius Kutu Acheampong, removed the civilian government again and replaced it with a National Redemption Council, renamed the Supreme Military Council in 1975. Following a bloodless counter-coup in 1978, the SMC was reconstituted, but only until another counter-coup brought Flight Lieutenant Jerry John Rawlings to power the following year. Although a new constitution was drafted and adopted shortly thereafter, it lasted only until 1981, when Rawlings led another military coup and set up the Provisional National Defence Council (PNDC). Chaired by Rawlings, the PNDC initially had seven members, four from the armed forces and three civilians. Transition to civilian government was finally achieved in 1993, with Rawlings now an elected civilian head of state.Footnote ¹²

Although Sierra Leone experienced a first brief period of military rule in 1967–68, the first two decades following independence were shaped by Siaka Stevens and his All People’s Congress. When Stevens resigned in 1985, Major General Joseph Saidu Momoh, until then the Chief of Defence Staff, followed as president. Increasingly under pressure, Momoh’s government adopted a new constitution in 1991. It was, however, short-lived, as the outbreak of the Civil War and a coup led by the young military officer Valentine Strasser in 1992 ushered in a second period of military rule. The 1991 Constitution was suspended, all political parties were banned and the National Provisional Ruling Council was established, with Strasser as head. In 1996, Brigadier General Julius Maada Bio staged a counter-coup against Strasser; civilian government was briefly restored the same year, although only until Major Johnny Koroma seized power in mid-1997 through yet another military coup and formed the Armed Forces Military Revolutionary Council.Footnote ¹³

Liberia and the Gambia experienced relatively short periods of military rule, overshadowed by subsequent authoritarian governments personified by Charles Taylor and Yahya Jammeh. In Liberia, a coup led by Master Sergeant (later General) Samuel Doe overthrew the government and executed President William Tolbert and most of his cabinet members in 1980. The 1847 Constitution was suspended, Parliament was dissolved and a People’s Redemption Council (PRC) was established. Chaired by Doe, the PRC initially consisted exclusively of members of the armed forces, but was later complemented by a few civilians. A new constitution was adopted in 1986, and Doe and many other former PRC members continued to rule the country as civilians following elections that were widely believed to be rigged. Charles Taylor, initially a supporter and part of Doe’s regime, started to assemble rebels in neighbouring Côte d’Ivoire and eventually invaded the country, triggering the First Liberian Civil War. During Taylor’s regime (1997–2003), the regular armed forces were reduced practically to the point of non-existence and were rebuilt only after Taylor had resigned ahead of the Accra Comprehensive Peace Agreement that ended the Second Liberian Civil War.Footnote ¹⁴

In the Gambia, the 1970 Constitution remained in place for over two decades, although the government was temporarily overthrown in 1981 by a coup led by a small group of civilian revolutionaries together with members of the paramilitary Gambia Field Force. Constitutional order could, however, be restored with the support of Senegalese forces. In 1994, another coup, this time by regular armed forces led by Lieutenant Jammeh, ushered in a period of over 20 years of authoritarian rule, first in the form of a military regime and later under the guise of the 1996 Constitution. Jammeh’s rule finally ended following a military intervention by the Economic Community of West African States, forcing him to accept his loss in the 2016 presidential elections and to leave the country.Footnote ¹⁵

The involvement of the military in the making of the current constitutions

With the exception of Sierra Leone, all anglophone West African countries continue to have constitutions in place that are the product of processes that were initiated and overseen by an outgoing military regime. The oldest of these still in place is Liberia’s 1986 Constitution, the origins of which go back to the beginnings of the military regime led by Doe, who had already promised at the end of 1980 to establish a National Constitution Commission, known as “Con Com”. Consisting of representatives from various ethnic groups and regions, Con Com was established in 1981 and chaired by Amos Sawyer, at the time a political science professor at the University of Liberia.Footnote ¹⁶ As Yekutiel Gershoni has shown, the creation of the commission “shifted control of the country’s political agenda to Con Com and reduced the role of the PRC from initiator of the process to its caretaker. From this point on, Doe would make concerted and varied efforts to reclaim the limelight, retake the helm, and bend the process to his will.”Footnote ¹⁷ Many indications suggest that Doe and his supporters were to a large extent successful in influencing the constitution-making process, despite the fact that it was not Doe himself or the PRC but the formally independent Constitutional Advisory Assembly (CAA) that made some of the most significant changes to the draft it had received from Con Com in 1983. For example, the CAA’s revised draft increased the presidential term from four to six years, lowered the rank from which the president could appoint army officers, added a ten-year residency requirement for presidential candidates – thereby excluding popular activists who had fled the country following the 1980 coup – and removed the clause barring members of the armed forces and the police from voting. After the CAA’s revised draft had been presented to the PRC, a final draft was approved in a 1984 referendum by 78.3 per cent. A ban on political parties was lifted, and Doe’s National Democratic Party was declared the winner of the 1985 general elections, which were marred by allegations of widespread fraud.Footnote ¹⁸

The second oldest anglophone West African constitution still in place today is the Constitution of Sierra Leone, adopted in 1991. Influenced by internal and external pressure, President Momoh appointed a 35-member National Constitutional Review Commission with the mandate to review the 1978 Constitution.Footnote ¹⁹ Within six months, the Review Commission had submitted a report to Momoh. Although the approved text entered into force in October 1991 following a referendum, the Constitution was suspended only half a year later by the military regime led by Strasser. Although the military was therefore not involved in the original constitution-making process, the first amendments, adopted in 1996, were incorporated by military decree under the Koroma regime, changing the composition of the Police Council and establishing a Defence Council under the control of Koroma as the chairman of the military regime.

In Ghana, the origins of the 1992 Constitution date back as far as 1982, when the military regime established the National Commission for Democracy (NCD). Tasked with “formulating for the Government’s consideration a programme for the effective realization of democracy in Ghana”, the NCD was chaired by Justice Daniel Francis Annan, a retired judge and a civilian member of the Rawlings-led military regime.Footnote ²⁰ Following nationwide consultations between 1983 and 1987, the NCD finally presented a report in 1991. In response, the military government decided to set up a Committee of Experts and outlined a constitutional agenda that included commitments to a return to multipartyism and a semi-presidential republic. Although the work of the committee was surrounded in rumours that it was only set up to rubber-stamp a text that had already been written by the military, the committee member Kwadwo Afari-Gyan has maintained that “throughout the deliberations of the committee, there was never any form of interference or undue influence by the PNDC or any of its agents”.Footnote ²¹ The committee had in any case less than two months to draft proposals for a future constitution, and in August 1991 a Consultative Assembly (CA) was set up to come up with a draft constitution based on the committee’s proposals. While the CA discussed issues relating to the role of the military in the future constitutional text, it did not make proposals on the questions of indemnity for the military regime and the repeal of military decrees but left these issues for the PNDC to decide.Footnote ²² In August 1992, the draft developed by the CA was put to a referendum, which was approved by 93 per cent of the electorate on a 45 per cent turnout.Footnote ²³

In the Gambia, the drafting of a new constitution was on the agenda of Jammeh’s military government from the beginning. Only three months after the 1994 coup, Jammeh announced a four-year transition period and established a National Consultative Committee (NCC) tasked to draft a new constitution.Footnote ²⁴ Although the selection process was unclear, no members of the military were part of the NCC. In 1995, a Constitutional Review Commission (CRC) was established with the mandate to review the 1970 Constitution, hold nationwide consultations, receive submissions from all levels of society and draft a new constitution.Footnote ²⁵ Compared to the NCC, the CRC had fewer members and apart from the chairman, a Ghanaian judge, consisted entirely of laymen. Although again no members of the military were part of the committee, some members were considered to support the military government’s position.Footnote ²⁶ In any case, while the commission’s chairman stated that it had “full independence” and “didn’t have any interference from any quarter whatsoever”, key recommendations were later rejected by the military government.Footnote ²⁷ For example, the final draft lowered the minimum age for presidential candidates from 40 to 30 years (Jammeh was 31 at the time) and scrapped the limit on the presidential term of a maximum of two five-year terms.Footnote ²⁸ Like in Liberia, Sierra Leone and Ghana before, the Gambia’s new Constitution was approved in a referendum; presidential elections were held in 1997, turning Jammeh from a military to a civilian head of state in a process widely criticized as “so flawed that rather than provide the legitimacy he seeks, a cloud will likely continue to hang over the presidency, which has already been marked by international isolation and growing economic hardship”.Footnote ²⁹ This was also true for the Constitution itself, about which some had argued at the time that it was “only a device to perpetuate and legitimise Jammeh’s hold on power”, while others “contended that a deeply flawed Constitution and elections were still preferable to the continuation of undiluted military rule”.Footnote ³⁰

The last country in anglophone West Africa to return to civilian government was Nigeria. Following unsuccessful attempts to adopt a new constitution in 1985, 1992 and 1995, the so-called Constitution Debate Coordinating Committee (CDCC) was set up in 1998 by General Abdulsalami Abubakar to organize nationwide consultations. The CDCC consisted of 25 members and was chaired by the judge Niki Tobi, but other members of the committee had close ties to the mili-tary government, for example General Abacha’s former legal adviser. Following public hearings and workshops over the course of two months, the CDCC presented a report in which it recommended a return to the 1979 Constitution (itself a product of an earlier military regime), with minor amendments.Footnote ³¹ Subsequently, the military regime amended the draft constitution in a way “that it would not be a document that would alter existing political balances”.Footnote ³² Moreover, the final draft was not approved in a referendum, as in the other cases, but was promulgated in a military decree in which the CDCC’s report was approved, but “subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over an enduring Constitution to the people of Nigeria”.Footnote ³³ Many scholars have since argued that Nigeria’s Constitution lacks legitimacy due to the military’s role in the process.Footnote ³⁴

Constitutional reform initiatives since democratization

Unlike in most francophone West African countries, no entirely new constitutions have so far been adopted in the anglophone countries of the region since democratization in the 1990s.Footnote ³⁵ Major constitutional reform processes have, however, been initiated in all five countries, and in some cases smaller constitutional amendments have been made. For example, Nigeria’s Constitution has been amended five times since its promulgation in 1999. Nigeria’s most ambitious reform project, though, was the National Conference (known as “Confab”), inaugurated in 2014. While some of its recommendations have been taken up in ensuing reform processes, none of the more fundamental suggestions have been implemented to date.

Similarly, several attempts for comprehensive constitutional reform have been made in Ghana, but none of the recommendations of the 2010 Constitution Review Commission, the related Constitution Review Implementation Review Committee or the 2023–24 Constitution Review Consultative Committee have so far been implemented. However, following the last presidential elections in 2024, the review process gained new momentum when a new Constitution Review Committee was set up to review these earlier reports and outputs; while the committee has meanwhile completed its work, the proposals contained in the produced report have yet to be considered by the government.Footnote ³⁶

In both Sierra Leone and Liberia, plans for constitutional reform took shape after the respective truth commissions addressing the civil wars in the two countries had concluded their work. In Sierra Leone, an ambitious constitutional review process was launched in 2007 and led to the publication of the so-called Peter Tucker Report.Footnote ³⁷ Due to changes in the presidency, the government did not at first follow up on the recommendations. The process was revived in 2012 and again in 2021, but no fundamental constitutional amendments have been adopted.Footnote ³⁸ In Liberia, constitutional reforms had been proposed in 2011 and again in 2020, but ultimately all proposed amendments failed in referendums, except for a change in the voting system.Footnote ³⁹

Finally, the Gambia is the only anglophone West African country that has so far attempted to adopt an entirely new constitution. Following the end of Jammeh’s rule in 2017, a comprehensive transitional justice programme was launched, which included the drafting of a new constitution.Footnote ⁴⁰ However, following heated debates in Parliament, the text developed by the Constitutional Review Commission was ultimately rejected and the scheduled referendum had to be cancelled.Footnote ⁴¹

The military’s general role in the constitutional system

The primary role of the military in any constitutional system is to defend the sovereignty and territorial integrity of the state against external aggression, leaving internal security matters to the police. Except for Liberia, all anglophone West African constitutions have separate sections regulating the armed forces, in which the core functions are outlined.Footnote ⁴⁵ Accordingly, the constitutionally defined task of the Nigerian Armed Forces is to defend the country from external aggression, to maintain its territorial integrity and to secure its borders from violation on land, sea or air.Footnote ⁴⁶ Similarly, the constitutionalized function of the Gambia Armed Forces is “to preserve and defend the sovereignty and territorial integrity of Gambia”.Footnote ⁴⁷ The constitutional role of the Ghana Armed Forces is simply defined as the “defence of Ghana”.Footnote ⁴⁸ Lastly, the formulation in Sierra Leone’s Constitution is more ambiguous: here the Republic of Sierra Leone Armed Forces’ principal function is “to guard and secure” the country and “to preserve the safety and territorial integrity of the State, to participate in its development, to safeguard the people’s achievements and to protect the Constitution”.Footnote ⁴⁹

In addition, some constitutions foresee that members of the armed forces shall engage in productive activities for the development of the country.Footnote ⁵⁰ In anglophone West Africa, the Gambia, Ghana and Sierra Leone all have such provisions in their constitutions. In the Gambia, the armed forces shall “engage, at the request of the civilian authorities, in productive activities, such as agriculture, engineering, health and education for the development of Gambia”.Footnote ⁵¹ In Ghana, the armed forces may perform “other functions for the development” of the country, if so determined by the president.Footnote ⁵² Sierra Leone’s Constitution also refers to development.Footnote ⁵³

By contrast, none of the anglophone West African countries have constitutionalized the principle of the political neutrality of the armed forces.Footnote ⁵⁴ This general lack of explicit constitutional provisions prescribing political neutrality has allowed for a certain continuity of the military in politics in many anglophone countries following the respective transitions to civilian rule in the 1980s and 1990s. In Liberia (Doe), Ghana (Rawlings) and the Gambia (Jammeh), leaders of military regimes stayed in power as civilian heads of state, and even in Nigeria the first civilian head of state under the new Constitution was a former military head of state (Obasanjo). To some extent, this continuity also extended to institutions, namely in the form of political parties. Ghana’s National Democratic Congress (NDC) is a direct successor to the PNDC, the hybrid military–civilian council that governed the country for over a decade. Due to its military origins, the NDC is perceived by some to lack legitimacy and has been described as “essentially the reinvention of the last military junta”, whose “tyrannical antecedents show in its governance culture”.Footnote ⁵⁵ The NDC has been Ghana’s ruling party for much of its recent history following the return to civilian government, and won the 2024 elections. Although no similarly successful successor party exists in the other anglophone West African countries, smaller parties originating in the former military regimes continue to compete in presidential elections and are represented in parliament in the Gambia and Sierra Leone. In the Gambia, for instance, the Alliance for Patriotic Reorientation and Construction (APRC) was set up by army officers who staged the 1994 coup and was the ruling party from 1996 until 2016. Although internally divided over continuous loyalty to Jammeh following his ousting in 2017, the APRC recently joined a coalition with the ruling National People’s Party and has since been part of the new government.Footnote ⁵⁶

Constitutional entrenchment vis-à-vis the executive

While the main aim of this article is to appreciate the military’s constitutional entrenchment beyond its executive role as a separate constitutional actor, any analysis of its constitutional position and interdependence from the perspective of separation of powers has of course nevertheless to start from exactly there. Apart from the question of how executive oversight is constitutionally designed, the position and interdependence of the military vis-à-vis the executive becomes particularly visible if one looks at the extent to which members of the armed forces can fulfil executive functions and are represented in executive bodies.

A first aspect concerns the choice in all five anglophone West African constitutions to describe the president not only as the head of the executive but also as the commander-in-chief of the armed forces.Footnote ⁵⁷ In such cases, the president’s role as commander-in-chief should be clearly prescribed by the constitution to reduce the risk of partisan political abuse.Footnote ⁵⁸ At the constitutional level, none of the countries further detail the commander-in-chief’s role, however,Footnote ⁵⁹ and although the Constitution of Sierra Leone envisages that Parliament prescribes the functions of the commander-in-chief, a corresponding law has seemingly not been enacted to date.Footnote ⁶⁰

Apart from the commander-in-chief, executive oversight of the military can be exercised by a Minister of Defence. The constitutional provision of such a ministerial position is an important feature particularly in countries with a military past, as military regimes regularly combine the roles of head of state, Minister of Defence and Chief of Defence Staff in a single person. While all anglophone West African countries have established the office of Minister of Defence, the position is currently constitutionalized only in the Gambia and Ghana – and only in passing.Footnote ⁶¹ Moreover, as none of the anglophone West African countries prescribe a personal separation, some past presidents were able to simultaneously serve as Minister of Defence under the current constitutional frameworks.Footnote ⁶² A clear description of the Minister of Defence’s oversight role is also generally lacking.Footnote ⁶³ In particular, nowhere in the constitutions or the respective defence laws is the Minister of Defence prescribed to be at the top of the command structure, and it is the president, not the Minister of Defence, who has the power to appoint the Chief of Defence Staff.Footnote ⁶⁴

A related aspect is the question of whether (retired) members of the armed forces are eligible to serve as president. In this context, a strong argument can be made for the disqualification of former members of military regimes in order to mark a clear break with the past, also on a personal level. None of the anglophone West African countries have so far adopted such clauses, however, thereby making it possible that former military leaders could continue or reappear as civilian heads of state in all five countries. Sierra Leone’s current President Bio had already been military head of state in the 1990s. In Nigeria, Obasanjo had already been the country’s military head of state in the 1970s when he became the country’s first president after the transition to civilian government in 1999. Buhari, Nigeria’s president from 2015 until 2023, had also been the military head of state in the 1980s. In Ghana, Rawlings continued for eight more years as head of state as the country’s first elected president under the new Constitution after having ruled the country as chairman of the PNDC for over a decade. Similarly, Doe continued to serve as Liberia’s president for another four years following the adoption of the Constitution in 1986, and Jammeh continued to rule the Gambia under the guise of the 1996 Constitution until he was finally forced to step down in 2017. On the other hand, active members of the armed forces are explicitly excluded from the offices of president, vice-president or ministers in most anglophone West African countries. This is the case in Ghana and Sierra Leone.Footnote ⁶⁵ In Nigeria, an additional “cooling-off” period of 30 days applies for former members of the armed forces from the moment of their resignation.Footnote ⁶⁶ The Gambia has a similar prohibition for the office of president and vice-president, but not for ministers.Footnote ⁶⁷ By contrast, no constitutional limitations exist for members of the armed forces for any executive office in Liberia.

Another aspect concerns the question of to what extent the military is represented in executive bodies, in particular defence councils. While such councils are a common feature of constitutional design, it has been argued that consultation with the military in such institutionalized forums is an essential “alternative mode of political integration” in contexts where the military has ruled in the past.Footnote ⁶⁸ It is therefore not surprising that dedicated defence councils are constitutionalized throughout anglophone West Africa, except in Liberia.Footnote ⁶⁹ In addition, the military can be represented in other executive bodies such as National Security Councils (NSCs). These are bodies that advise on matters relating to the overall security of the country; while they can be critical for coordinating security, intelligence sharing and whole-government responses to security threats, NSCs should be civilian-dominated to maintain democratic accountability.Footnote ⁷⁰ NSCs have been established in all five anglophone West African countries, although at constitutional level only in the Gambia, Ghana and Nigeria. In the Gambia and Ghana, the military is represented in the NSC by the Chief of Defence Staff and two further members of the armed forces.Footnote ⁷¹ In Nigeria and Sierra Leone, the Chief of Defence Staff is the only regular member of the military in the NSC, although in Nigeria the president can appoint additional persons as members at his discretion.Footnote ⁷² Liberia also has an NSC, but the relevant law does not envisage any representatives of the military as members.Footnote ⁷³ Ghana and Nigeria, furthermore, have Councils of State, advisory bodies for general policy-making of the government. In Nigeria, all former heads of state, ie also all military heads of state, are members of the Council of State.Footnote ⁷⁴ In Ghana, the Council of State has a former Chief of Defence Staff among its members, and in the past included a former member of Rawlings’ military regime.Footnote ⁷⁵ No comparable bodies exist in the other anglophone West African countries.

The interdependence between the executive and the military in these councils is further manifest in the extent to which they are involved in the appointment process of senior military staff. While such appointments are typically the prerogative of the president, they should ideally be made in consultation with an executive council or Parliament.Footnote ⁷⁶ Although this is the case in all five countries, the extent and modalities vary significantly. In Sierra Leone, the president appoints the Chief of Defence Staff on the advice of the Defence Council, while (only) the appointment of the service chiefs is subject to the approval of Parliament.Footnote ⁷⁷ In the Gambia, the president appoints the Chief of Defence Staff and the service chiefs, after consultation with the NSC.Footnote ⁷⁸ In Nigeria, the Chief of Defence Staff is appointed by the president, while the presidential appointments of the service chiefs are subject to confirmation by Parliament.Footnote ⁷⁹ In Ghana, the president, in consultation with the Council of State, appoints not only the Chief of Defence Staff and the service chiefs, but may also, in accordance with the advice of the Defence Council, “appoint officers of the Armed Forces who shall be given such command as the Armed Forces Council shall determine”.Footnote ⁸⁰ Lastly, in Liberia the president nominates, with the consent of Parliament, all members of the military from the rank of lieutenant or its equivalents and above.Footnote ⁸¹ As has been noted, this provision can be traced back directly to Doe’s mili-tary regime, which had made sure that the rank was lowered from colonel to lieutenant during the drafting process of the Constitution.Footnote ⁸²

Constitutional entrenchment vis-à-vis the legislature

Beyond an assessment of the military’s role vis-à-vis the executive, an additional way to appreciate its constitutional entrenchment from the perspective of separation of powers is to analyse how the military is regulated by the legislature, in particular through the enactment of parliamentary laws detailing its organs and structure as well as the recruitment, appointment and removal of staff. While a detailed analysis of the substance of these laws is beyond the scope of this article, what can be noted is that, with the exception of Liberia (which enacted an entirely new National Defense Act in 2008), all anglophone West African countries have so far kept defence laws that date back to or were amended during periods of military rule: Sierra Leone’s Armed Forces Act was first enacted in 1961 and amended in 1974, 2000 and again in 2003;Footnote ⁸³ Ghana’s Armed Forces Act was enacted in 1962 and amended by military decree in 1983, and also continues to be in force;Footnote ⁸⁴ the Gambia’s Armed Forces Act was enacted in 1985, amended by military decrees in 1995 and 1996, and was last amended in 2008;Footnote ⁸⁵ in Nigeria, separate parliamentary acts existed for the army, navy and air force until the promulgation of the military Armed Forces Decree in 1993, renamed the Armed Forces Act in 2004.Footnote ⁸⁶

Another important area where the constitutional position and interdependence of the military vis-à-vis the legislature can be observed concerns the question of whether members of the armed forces are disqualified from becoming members of Parliament (MPs). During periods of military rule, most legislative bodies in anglophone West Africa consisted predominantly of members of the armed forces; for example, as mentioned above, Nigeria’s first military council consisted almost exclusively of personnel from the armed forces, as was the case in Ghana. Today, members of the armed forces in elected assemblies are a rare phenomenon, and the only African constitution in place that allows for MPs in uniform is that of Uganda.Footnote ⁸⁷ In anglophone West Africa, explicit constitutional prohibitions on members of the armed forces becoming MPs can be found in the Gambia, Ghana, Nigeria and Sierra Leone. While the constitutions of the Gambia and Ghana do not differentiate between former and active members of the armed forces, that of Sierra Leone sets a 12-month cooling-off period for former members of the armed forces from the moment of their resignation.Footnote ⁸⁸ Nigeria’s Constitution has a similar but much shorter cooling-off period of 30 days.Footnote ⁸⁹ By contrast, no constitutional limitation on former or active members of the armed forces becoming an MP exists in Liberia.Footnote ⁹⁰

Constitutional entrenchment vis-à-vis the judiciary

Compared to the literature on the role of the military in relation to the other two branches of government, scholarship on its constitutional entrenchment vis-à-vis the judiciary is much more limited.Footnote ⁹¹ There are, however, a number of questions of constitutional design where this is relevant, in particular in relation to military courts, which are regulated to different degrees in all anglophone West African constitutions.Footnote ⁹² First, while there is general agreement that in principle, military tribunals may be established by the constitution or statutory law, they must form part of the general judicial system.Footnote ⁹³ This is particularly important against the background that a core feature of past military regimes in anglophone West African countries was the absence of the possibility of appeal to ordinary courts (or any other tribunal).Footnote ⁹⁴ In today’s constitutions, only the Court of Appeal in the Gambia is mandated without reservation to hear appeals from courts martial.Footnote ⁹⁵ In addition, while Nigeria’s Constitution also mandates the Court of Appeal to hear appeals from courts martial, this is currently qualified by the Armed Forces Act, to the effect that appeals to courts martial are limited as of right to death penalty cases and with leave from the Court of Appeal for other cases.Footnote ⁹⁶ In Sierra Leone a similar provision was included in 2000 in the Armed Forces Act.Footnote ⁹⁷ Lastly, Ghana’s appeal procedure for courts martial is unique in that it establishes a (military) Court-Martial Appeal Court, which is, however, composed of judges of the (ordinary) Court of Appeal.Footnote ⁹⁸

A second aspect in this regard concerns the question of whether civilians can be tried by military courts, a controversial issue that has attracted some international debate.Footnote ⁹⁹ For the African context, it is important to note that the African Commission on Human and Peoples’ Rights has repeatedly made clear that military courts should have jurisdiction only over military personnel.Footnote ¹⁰⁰ Most of the Commission’s relevant jurisprudence comes from Nigeria during military rule, where special military tribunals with jurisdiction over civilians for acts that were previously under the jurisdiction of ordinary courts were one of the military regime’s most notorious features.Footnote ¹⁰¹ Similar special military tribunals had also existed in Ghana. Against this background, it is not surprising to observe that only a few anglophone West African constitutions have clear commitments in this regard: Liberia’s Constitution explicitly states that “no person other than members of the Armed Forces of Liberia or of the militia in active service shall be subject to military law, or made to suffer any pains or penalties by virtue of that law, or be tried by courts-martial”.Footnote ¹⁰² Ghana’s Constitution has a similar provision, although it is less restrictive and also allows persons who are not in active service to be tried by military courts under certain circumstances.Footnote ¹⁰³ The other anglophone West African countries have no similar constitutional provisions, and their sometimes decades-old defence laws are full of ambiguities and complicated exceptions in that regard.Footnote ¹⁰⁴

Constitutional entrenchment vis-à-vis society

Going beyond the military’s constitutional entrenchment in relation to the three branches of government, this section extends the analysis to its constitutionalized role in society more broadly. While most anglophone West African constitutions do not deal with this aspect on an abstract level, it is interesting to note that the Gambia’s Constitution calls for the armed forces “to maintain harmony and to foster understanding between the Armed Forces and the civilian population”.Footnote ¹⁰⁵ In more concrete terms, the constitutional entrenchment of the military vis-à-vis society can be examined through three main aspects: whether accountability mechanisms for individual complaints against military misconduct are established; whether compulsory military service is envisaged; and whether provisions exist aimed at promoting diversity and representation of all segments of society.

The first form of constitutional entrenchment of the armed forces in society are military ombuds institutions for individual complaints against misconduct by the armed forces.Footnote ¹⁰⁶ While many Latin American countries have introduced such institutions in their constitutions, so far none of the anglophone West African countries have established such bodies.Footnote ¹⁰⁷ As concerns the second aspect, it has been argued that the most important aspect of an interdependent military in a post-authoritarian society is that it is composed of “citizen-soldiers”, that is, not professionals but soldiers primarily recruited through mandatory conscription.Footnote ¹⁰⁸ However, like in most countries globally today, none of the anglophone West African countries currently have compulsory military service, and it appears that Nigeria’s Constitution is the only one that explicitly mentions the possibility of introducing compulsory military training by statutory law.Footnote ¹⁰⁹

Except for Liberia’s Constitution, all anglophone West African constitutions do provide for compulsory youth service, sometimes with an element of military training. In Nigeria, all citizens have the duty to “help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required”.Footnote ¹¹⁰ Nigeria’s National Youth Service Corps was set up in 1973 by a military decree that continues to be in force today, pursuant to a provision in the current Constitution.Footnote ¹¹¹ Based on an almost identical provision in Sierra Leone’s Constitution, a similar youth service was launched there in 2016.Footnote ¹¹² While the youth services of Nigeria and Sierra Leone do not have a military element, this is different in Ghana, where the constitutional duties of citizens include “to defend Ghana and render national service when necessary”.Footnote ¹¹³ Until recently, the Ghana National Service Scheme Act had provided for a minimum period of six months of military training as part of a two-year youth service.Footnote ¹¹⁴ In 2024, the Act was repealed, however, and the new law reduces the service to one year and the military component to six weeks.Footnote ¹¹⁵ Finally, the youth service with the strongest link to the armed forces can be found in the Gambia’s Constitution, where the National Youth Service “shall be organised with the co-operation and assistance of the Armed Forces”. Moreover, it additionally envisages secondment programmes for members of the armed forces to civilian occupations, “so as to enable members of the forces to return, after their service, to a full and productive civilian life”.Footnote ¹¹⁶ In practice, however, although a relevant National Youth Service Scheme Act had been enacted, the Gambia’s youth service has never been fully implemented.Footnote ¹¹⁷

The third aspect concerns provisions aimed at promoting diversity and representation of all segments of society in the armed forces. In anglophone West Africa, as elsewhere on the continent, this is particularly relevant in relation to ethnicity, as allegations are frequently made that certain ethnicities are over-represented in the armed forces. For example, there has long been a strong perception in Nigeria that “Northerners” are disproportionally recruited into the military.Footnote ¹¹⁸ As the empirical work of Kristen Harkness shows, this perception is sometimes backed up by statistical data, in particular when it comes to the over-representation of the ethnic groups of long-time rulers: during Jammeh’s military and dictatorial rule in the Gambia, his Jola group was favoured in the armed forces.Footnote ¹¹⁹ In Ghana under Rawlings, top brass of the military belonged to his ethnic group, the Ewe, and in Liberia under Doe, the majority of the leadership belonged to his Krahn ethnic group.Footnote ¹²⁰ The Sierra Leonean governments of Stevens and Momoh also favoured their ethnic group, the Limba.Footnote ¹²¹ To prevent such over-representation of specific ethnic groups in the armed forces, some anglophone West African constitutions provide for regional or ethnic quotas. In Nigeria, “the composition of the officer corps and other ranks of the armed forces of the Federation shall reflect the federal character of Nigeria”.Footnote ¹²² In Liberia, the armed forces should be “a truly national force that reflects the ethnic, gender, religious and regional diversity of the country” and “shall at all times reflect the national character of Liberia”.Footnote ¹²³ In Ghana, in line with a general constitutional provision encouraging the state to take measures towards “reasonable regional … balance in recruitment and appointment to public offices”, the first post-Rawlings government under John Kufour also introduced a policy of regional balance in recruitment.Footnote ¹²⁴ In Sierra Leone, too, post-conflict restructuring included provisions for the fair representation of all ethnic groups in recruiting and merit-based hiring.Footnote ¹²⁵