The Potential Role of Directive Principles of State Policies for Transformative Constitutionalism in Africa

by | Sep 17, 2019 | AJCL, AJCL 2017

The Potential Role of Directive Principles of State Policies for Transformative Constitutionalism in Africa

Authors Berihun Adugna Gebeye

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 1 – 34

Abstract

Constitutions in Africa are not only a means for constituting and constraining political power, but also a mechanism for enabling societal transformation. Precisely because of this, constitutions in Africa set a framework for transformative constitutionalism. Properly placed constitutionally to play this transformative role, but figure less both in constitutional practice and in scholarship, are principles referred to as Directive Principles of State Policies (DPSPs). Drawing lessons from both comparative constitutional law and a close investigation of constitutions in Africa, this article argues that putting DPSPs at the service of constitutionalism advances the experiment of transformative constitutionalism. In addition, it plays a potential important role in responding to some of the challenges of constitutionalism related to the multiparty political system, the judiciary and substantive justice. DPSPs advance transformative constitutionalism because their substantive content and procedures of implementation are animated by forward-looking transformative ethos. They have the potential to address these challenges as they, first, create minimum standards in the substantive formulation of political-party programmes and implementation strategies. Secondly, they empower and legitimise the judiciary in the functioning of constitutional democracy. Thirdly, they provide substantive justice to the majority through the implementation of socio-economic rights, both in the democratic and judicial processes.

Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (2nd edition, Edward Elgar 2018)

by | Sep 15, 2019 | AJCL, AJCL 2018

Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (2nd edition, Edward Elgar 2018)

Authors Brenda A Kiberenge

ISSN: 2521-5434
Affiliations: Senior Legal Officer, Kenya School of Law, and Advocate of the High Court of Kenya
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 137 – 146

Abstract

None

The Political Question Doctrine and Justiciability of Rights in Kenya in the Post-2010 Constitution Period

by | Sep 15, 2019 | AJCL, AJCL 2018

The Political Question Doctrine and Justiciability of Rights in Kenya in the Post-2010 Constitution Period

Authors Teddy JO Musiga

ISSN: 2521-5434
Affiliations: Assistant Law Reporter/Legal Researcher at the National Council for Law Reporting (Kenya Law) and Advocate of the High Court of Kenya
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 115 – 136

Abstract

This article examines the place of the political question doctrine in Kenya through two broad limbs. First, it interrogates the question of whether there is a difference between political and constitutional questions, with a view of establishing whether there is a dichotomy between the two issues under the 2010 Constitution. Secondly, it generally scrutinises how the concepts of justiciability and judicial review power relate to the political question doctrine under the Constitution. To demonstrate instances where the political question doctrine has been invoked in the past, or may be invoked in the future, the article makes reference to examples from cases touching on general constitutional litigation, both before and after the promulgation of the 2010 Constitution.

Extraterritorial Scope of Constitutional Rights: Instructive Insights from Comparative and International Law

by | Sep 15, 2019 | AJCL, AJCL 2018

Extraterritorial Scope of Constitutional Rights: Instructive Insights from Comparative and International Law

Authors Brian Sang YK

ISSN: 2521-5434
Affiliations: Lecturer, Faculty of Law, Egerton University, Kenya
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 71 – 114

Abstract

The scope of constitutional rights was traditionally confined to a state’s territory. Founded on ideas of sovereign equality, it was held that there exists, under both municipal and international law, a presumption against the extraterritorial effect of constitutional rights. But this historic view is now outmoded. Recent case law from national courts indicates a growing tendency to assert legal accountability for human rights violations arising from extraterritorial state action. Yet courts in Africa, excluding South Africa, seldom broach the issue. In addition, whereas supra-national courts are receptive to extraterritorial claims, their national counterparts are more circumspect in approach. Even where they uphold the extraterritorial reach of constitutional rights, national courts often give oblique and contradictory rationales for it. Since national practice on the issue is fragmentary and unsettled, this article contends that international law can promote a more principled and coherent approach by elaborating a unified basis, grounded on international human rights norms, for the extraterritoriality of constitutional rights. Its comparative review of the constitutional jurisprudence of South Africa, Canada, the United Kingdom, and the United States indicates that grounds exist for the emergence of a convergent concept of jurisdiction, transcending the particularities of national or treaty law. The article concludes with a proposal on how best such an extraterritoriality consensus can practically be consolidated, and an exposition of its benefits for African states.

The Making and Remaking of National Constitutions in African Regional Courts

by | Sep 15, 2019 | AJCL, AJCL 2018

The Making and Remaking of National Constitutions in African Regional Courts

Authors  Sègnonna Horace Adjolohoun

ISSN: 2521-5434
Affiliations: Extraordinary lecturer (Centre for Human Rights, University of Pretoria), faculty member, ‘Constitution Building in Africa’ course (Central European University), Principal Legal Officer (African Court on Human and Peoples’ Rights)
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 35 – 70

Abstract

In the two decades that followed the entry into force of the African Charter on Human and Peoples’ Rights in 1986, the Organisation of the African Unity – now African Union – and Regional Economic Communities adopted numerous treaties with the primary aim of achieving political and economic integration or fostering human rights. In that context, the stated intergovernmental organisations adopted conventions specifically devoted to attaining common regional standards on democracy, good governance and elections. Considered separately or jointly, the norms thereby developed have set the stage for the regionalisation of principles that traditionally belong to domestic constitutions, such as supremacy of the constitution, rule of law, separation of powers, independence of the judiciary, democracy and the protection of fundamental rights. A close examination reveals that the increased activity of the regional judicial institutions entrusted with the interpretation and application of these norms is generating a growing body of jurisprudence, which has the potential of shaping domestic constitutional law and practice. This article interrogates whether, and the extent to which, African regional courts are (re)making constitutions in the region.