The Economy in the Constitution: An Appraisal of Kenya’s 2010 Constitution as an Economic Charter

The Economy in the Constitution: An Appraisal of Kenya’s 2010 Constitution as an Economic Charter

Author: Eric Kibet

ISSN: 2521-5434
Affiliations: LLD (Pretoria), LLM (Boston College), LLB (Nairobi), Advocate of the High Court of Kenya and Assistant Professor, United States International University, Nairobi, Kenya
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 1 – 30
https://doi.org/10.47348/AJCL/2020/a1

Abstract

The idea of constitutions as instruments of political governance or ‘power maps’ is well established. Constitutions set down the foundation for political governance, establish organs of the state, allocate them power, define their relationships inter se, and most importantly, limit public power. The conception of constitutions as instruments of economic governance has not received as much scholarly attention. The lack of constitutionalism and rule of law has tended to coexist with poor economic prospects in Kenya and elsewhere in Africa, suggesting a link between them. This has made the question of whether constitutions and the idea of constitutionalism can contribute to better economic governance besides political governance, more important. While it cannot be assumed that the stipulations in a constitution on economic governance automatically translate into good governance and economic growth, such provisions are nonetheless important as they provide an encouraging impetus for sound economic governance that is indispensable in achieving growth and development. This article appraises Kenya’s Constitution as an economic charter that dedicates significant attention to regulating economic affairs through setting a foundation for the country’s economic orientation, protecting private property and enterprise, securing the rule of law and good governance, including economic governance, and making provisions on other economic concerns such as labour relations, consumer protection and competition.

The Role of Founding Values and Principles in Constitutional and Statutory Interpretation: Lessons for Zimbabwe

The Role of Founding Values and Principles in Constitutional and Statutory Interpretation: Lessons for Zimbabwe

Author: Admark Moyo and Basutu S Makwaiba

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 31 – 58
https://doi.org/10.47348/AJCL/2020/a2

Abstract

This article explores the role of constitutional values and principles in statutory and constitutional analysis. Given that the exact meaning of these values and principles remains largely unexplored, the article starts by explaining the differences between these terms and argues that these differences are not important for purposes of determining the role of values and principles in the interpretation of legal texts. In addition, the article examines the meaning and scope of the teleological theory of interpretation which forms the philosophical basis of a value-laden approach to constitutional and statutory analysis. More importantly, the article proceeds to unpack the letter and reach of the constitutional provisions that explicitly require courts to pay due regard to values and principles when interpreting any part of the Declaration of Rights. Towards the end, the article demonstrates the role of values in both the interpretation of enactments and the development of the common law or customary law.

An Evaluation of the Enforcement of Fundamental Rights and the Controversy of Jurisdiction of the Federal and State High Courts in Nigeria

An Evaluation of the Enforcement of Fundamental Rights and the Controversy of Jurisdiction of the Federal and State High Courts in Nigeria

Author: Bo Alloh

ISSN: 2521-5434
Affiliations: LLB, LLM, BL, PhD, Lecturer, Acting Head, Department of Jurisprudence and International Law, Faculty of Law, Delta State University, Oleh Campus, Delta State, Nigeria.
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 59 – 78
https://doi.org/10.47348/AJCL/2020/a3

Abstract

This article examines the issue of jurisdiction between various high courts on the enforcement of fundamental rights in Nigeria. Fundamental rights are derived from the constitution and are expressly entrenched in the constitution of a country. They vary from one country to another and are specifically enacted in a country’s constitution in line with the history and culture of the country. In Nigeria, jurisdiction is vested in both State and Federal High Courts with respect to the enforcement of fundamental rights. However, the jurisdiction of the State High Courts is ousted and donated to the Federal High Courts, once a case on fundamental rights falls under section 251 of the 1999 Constitution of the Federal Republic of Nigeria. The researcher adopted the doctrinal method of research. The objective of this article is to reveal that the concurrent jurisdiction of both the Federal and State High Courts to hear and determine applications to secure the enforcement of fundamental rights has led to years of seemingly unsettled controversies, academically and procedurally. However, this controversy has been settled in the case of FUT Minna v Olutayo. This article concludes that the Supreme Court decision in the case of FUT Minna v Olutayo supports the realisation of the enforcement of fundamental rights in Nigeria.

A Reflection on Issues involved in the Exercise of the Power of the Attorney-General to enter A Nolle Prosequi under the 1999 Constitution of Nigeria

A Reflection on Issues involved in the Exercise of the Power of the Attorney-General to enter A Nolle Prosequi under the 1999 Constitution of Nigeria

Author: Dr Andrew Ejovwo Abuza

ISSN: 2521-5434
Affiliations: B.Sc (Hons); PGDE; MSc; LLB (Hons); LLM ; Ph.D (Law) and Teachers Registration Council of Nigeria (TRCN) Certificate of Registration as a certified teacher. Senior Lecturer, Acting Head of Department of Private Law, Faculty of Law, Delta State University, Abraka (Oleh Campus), Nigeria and Principal of the Law firm of Abuza & Associates.
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 79 – 109
https://doi.org/10.47348/AJCL/2020/a4

Abstract

The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. This paper reflects on issues involved in the exercise of the constitutional power of nolle prosequi. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The paper finds that the exercise of the constitutional power of nolle prosequi for self-interest or political considerations of the Attorney-General is unconstitutional. The paper suggests the subjection of the exercise of the constitutional power of nolle prosequi to the permission of the court in line with the practice in other countries like the United States of America (USA) and Kenya.

Charles M Fombad and Nico Steytler, Corruption and Constitutionalism in Africa: Revisiting Control Measures and Strategies (Oxford University Press 2020)

Charles M Fombad and Nico Steytler, Corruption and Constitutionalism in Africa: Revisiting Control Measures and Strategies (Oxford University
Press 2020)

Author: Gaopalelwe Mathiba

ISSN: 2521-5434
Affiliations: Lecturer, Faculty of Law, Rhodes University; PhD Candidate (UCT); LLM cum
laude (UWC) and LLB (NWU)
Source: Africa Journal of Comparative Constitutional Law, 2020, p. 111 – 119
https://doi.org/10.47348/AJCL/2020/a5

Abstract

None

Women Political Representation and Gender Quotas in Kenya: A Retrospective Look

Women Political Representation and Gender Quotas in Kenya: A Retrospective Look

Authors: Buluma Bwire, Migai Akech and Agnes Meroka-Mutua

ISSN: 2521-5434
Affiliations: PhD Candidate, University of Nairobi, School of Law; Associate Professor of Law, University of Nairobi; Senior Lecturer in Law at the University of Nairobi
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 1 – 24

Abstract

The 2010 Constitution introduced mandatory gender quotas for elective public bodies in Kenya through the provisions of articles 27(8) and 81(b). However, there exist no constitutional mechanisms to ensure the effective implementation of these quotas and this lacuna has contributed to an on-going constitutional impasse since 2013 when the First Parliament under this Constitution was elected into office. This article undertakes a retrospective interrogation of the state of women’s political representation in Kenyan politics leading up to the introduction of constitutional gender quotas with the promulgation of the 2010 Constitution. It further analyses the influence of electoral systems on women’s representation in Parliament vis-à-vis the implementation of gender quotas to increase their participation and representation in politics. It argues for changes in the Kenyan electoral system to facilitate the successful implementation of the constitutional gender quotas provided for under articles 27(8) and 81(b) of the Constitution.