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.

African Populist Demagoguery, Constitutionalism and Human Rights

by | Sep 14, 2019 | AJCL, AJCL 2018

African Populist Demagoguery, Constitutionalism and Human Rights

Authors Thompson Chengeta

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 1 – 34

Abstract

With the current populist politics wave in America and Europe, scholars have begun to question whether such populism will be replicated in Africa. Understood in its literal and political sense, populism is not bad per se (by itself). However, in the 21st century, the term ‘populism’ has been loosely utilised to denote demagoguery—particularly in reference to politicians who identify with the prejudices of the majority to further their own political agenda. It is this kind of negative populism that this article is concerned about. This article argues that such populist politics have existed in Africa since the rise of nationalistic and revolutionary parties that fought colonial domination, and has been a constant menace to constitutionalism, democracy and human rights. For instance, African populist demagogues continue to scapegoat lesbian, gay, bisexual, transgender and intersex (LGBTI) communities, Western countries and foreigners; and they blame colonialism for almost every predicament while avoiding accountability for their own actions. While checks and balances—in particular constitutional courts—play an important role as far as checking the exercise of power by such populist demagogues is concerned, this article argues that they are not sufficient. In search of other mechanisms that may be put in place to deal with the current surge of negative populism and the challenges they pose to constitutionalism, this article suggests the exclusion of populist demagogues from electoral contests under the fitness for public office rule.

From Parliamentary to Judicial Supremacy: Reflections in Honour of the Constitutionalism of Justice Moseneke

by | Sep 14, 2019 | ACTA, ACTA 2017

From Parliamentary to Judicial Supremacy: Reflections in Honour of the Constitutionalism of Justice Moseneke

Authors Peter G Danchin

ISSN: 1996-2088
Affiliations: Professor of Law and Co-director of the International and Comparative Law Program, University of Maryland School of Law;AW Mellon Visiting Fellow, University of Cape Town, 2013–14
Source: Acta Juridica, 2017, p. 29 – 54

Abstract

Justice Moseneke has presciently identified two interrelated dilemmas at the heart of South Africa’s project of transformative constitutionalism: one concerning constitutional authority following the historic rejection of parliamentary supremacy; and the other concerning constitutional normativity following the adoption in 1996 of a comprehensive Bill of Rights. This essay advances two key arguments: First, that the rejection of parliamentary supremacy has conventionally been understood in terms of a false opposition between ‘parliamentary’ and ‘constitutional’ supremacy. And second, that proponents of strong judicial review have paid insufficient attention to three core dangers of judicial supremacy: the displacement of self-government, the reproduction of the problem of sovereignty and the usurpation by the judiciary of the role of pouvoir constituent. This striking reversal in conceptions of normativity and authority rests on a distinctive constitutional account of popular sovereignty under which the will of the People is the source of normativity while the courts, as adjudicators of reason, are the highest legal authority. The paradox of this constitutional logic is that in order to justify the anti-democratic consequences of strong judicial review, rights-based reasoning will increasingly need to be justified in terms of the will of the People with attendant gravitational consequences for theories of adjudication. To achieve Justice Moseneke’s call for an equitable balance between democratic will and constitutional supremacy – and thereby maintain a robust rights-based constitutionalism – South African judges and legal scholars will need to grapple more squarely with the twin dangers of judicial supremacy on the one hand, and the essentially contested nature of constitutional rights on the other.

Institutional Integrity and the Promise of Constitutionalism: Justice Moseneke, Judicial Authority and the Separation of Powers

by | Sep 14, 2019 | ACTA, ACTA 2017

Institutional Integrity and the Promise of Constitutionalism: Justice Moseneke, Judicial Authority and the Separation of Powers

Authors Heinz Klug

ISSN: 1996-2088
Affiliations: Evjue-Bascom Professor of Law, University of Wisconsin and Honorary Senior Research Associate, University of the Witwatersrand School of Law
Source: Acta Juridica, 2017, p. 3 – 28

Abstract

This essay takes a demonstrative journey through Deputy Chief Justice Dikgang Moseneke’s Constitutional Court decisions, celebrating and illustrating the Justice’s personal and institutional commitment to the integrity of the Constitution. First, the author explores the scholarly arguments that see South African jurisprudence observing a unique ‘separation of powers’ doctrine, shaped by a distinctive constitutional system that falls somewhere between a common-law parliamentary system and the German system of constitutional democracy. Then the essay reflects on Justice Moseneke’s role in creating and upholding the separation of powers doctrine through an analysis of some of the Justice’s decisions. Finally, the essay explores Justice Moseneke’s role in establishing the parameters of the very judicial authority he practised, through a skilful exercise of institutional self-restraint and assertion of the role of integrity as well as the recognition of the Constitution’s creation of independent institutions outside of the traditional trias politica.

The Admissibility of Evidence Obtained Through Human Rights Violations in Seychelles

by | Sep 8, 2019 | SACJ, SACJ V32 I1 2019

The Admissibility of Evidence Obtained Through Human Rights Violations in Seychelles

Authors Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: Professor of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 32 Issue 1, p. 1 – 27

Abstract

Unlike the Constitutions of South Africa, Kenya and Zimbabwe which expressly provide for circumstances in which evidence obtained through human rights violations may be admitted, the Constitution of Seychelles is silent on this issue. However, courts in Seychelles have had to decide whether or not to admit evidence obtained through human rights violations. Courts have used both the constitutional provision on the rights of arrested and detained persons and the Judges Rules in these cases. In this article the author discusses cases in which Seychellois courts have dealt with the issue of evidence obtained through human rights violations and in violation of the Judges Rules. Relying on jurisprudence from South Africa, Kenya and Zimbabwe, it is argued that there may be a need to amend the Constitution of Seychelles to include an express provision regulating the admissibility of evidence obtained through human rights violations. Alternatively, the Seychelles Court of Appeal would have to lay down the criteria that courts should use in determining whether to admit evidence obtained through human rights violations. The author also relies on case law from Seychelles and from some African countries such as Mauritius, Kenya and Namibia to highlight the weaknesses of the Judges Rules. These weaknesses bolster the argument for the need for a constitutional provision on the admissibility of evidence obtained through human rights violations in Seychelles.

Analysing the Case of Secession in Kenya

by | Sep 8, 2019 | JCLA, JCLA V6 I1 2019

Analysing the case of secession in Kenya

Authors Joseph Lutta

ISSN: 2521-2605
Affiliations: Advocate of the High Court of Kenya
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 1 – 27

Abstract

Secession remains an emotive, divisive and nebulous subject within the realms of public international law. This is because it pools together two diametrically opposed notions of the right to self-determination and state sovereignty and territorial integrity. On one hand, the right to self-determination is perceived as inalienable since the people have the liberty to break away from a repressive regime and form their own country. In contradistinction, the sovereignty of state is a sacrosanct model that holds the state together and any notion of secession poses an existential threat to the territorial integrity and political stability of a country. On a more abstract level this paper attempts to underscore the legal position of secession in Kenya. More specifically, it expounds on the various underlying reasons behind the simmering support for self-determination across the country. In the same vein, it expounds whether this concept is conceivable in light of the current constitutional dispensation and prevailing judicial decisions. Furthermore, it encompasses a comprehensive comparative study of other judicial forums with a more specific reference to the futuristic advisory opinion by ICJ on the Republic of Kosovo. Thereafter, it suggests a possible model that would befit the Kenyan situation when dealing with this concept.

Book Review: Constitutional Triumphs, Constitutional Disappointments. A Critical Assessment of the 1996 South African Constitution’s Local and International Influence

by | Sep 8, 2019 | SALJ V135 I4 2018

Book Review: Constitutional Triumphs, Constitutional Disappointments. A Critical Assessment of the 1996 South African Constitution’s Local and International Influence

Authors D M Davis

ISSN: 1996-2177
Affiliations: Judge of the High Court of South Africa
Source: South African Law Journal, Volume 135 Number 4, p. 799 – 804

Abstract

None