Abstract

In many parts of the world, and most typically in the severely heterogeneous African states, there are constitutional and/or legal prohibitions against establishing communally based (such as ethnic, religious, tribal) parties. This practice is contrasted with the European situation, where the European Court of Human Rights (ECtHR) sided with the sub-national communal parties most of the time, against the national governments that tried to ban them. In general, banning parties is on a collision course with basic democratic principles, and this article looks for explanations for the different standards applied in different countries. The most important question is whether there are real objective circumstances justifying the different standards, or whether the difference has been created by contingent evolutionary paths of the pertinent scholarly literature and jurisprudence. The article takes a deep-dive into the ideologies advocating the necessity of communal party bans and also analyzes the reasons of the ECtHR to allow for the existence of communal parties. A series of ideological differences are highlighted, such as individualist versus communitarian social ontology, political entrepreneur-driven versus cleavage-based political mobilization, preference for majoritarian versus proportional representation systems, and centripetal versus power-sharing arrangements. A basic finding from the inquiry is that the ECtHR, while protecting the right to association—a collectively exercised individual civil/human right—based its decisions on the notion of minority to a considerable extent. Thus far, this notion has almost completely been missing from the scholarly literature on, and informing the policies in Africa, though there are several countries whose ethnic landscape allows for the use of it, and others, with more complex communal make-up could also benefit from its use as a legal fiction. With the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007, Africa made a definite step toward recognizing sub-national collective rights.