Accommodation and Altercation: The Challenge of Legal Pluralism in India and South Africa

by | Sep 17, 2019 | AJCL, AJCL 2016

Accommodation and Altercation: The Challenge of Legal Pluralism in India and South Africa

Authors Niharika Bahl

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 58 – 89

Abstract

In culturally heterogeneous societies there exist multiple forms of social ordering beyond the ambit of state law. This phenomenon is particularly visible in post-colonial societies of Asia and Africa. Difficulties lie in accommodating plural legal norms within the established constitutional order. Conceptually, legal pluralism seems to be diametrically opposed to the notion of the rule of law. While the principle of the rule of law enjoys an exalted status in modern democracies, the reality is that plurality of legal systems continues to have an impact in society, establishing rules of behaviour, defining ethical norms of social interaction, relieving social and cultural strains, and so on. India and South Africa offer splendid examples of multi-diverse nations with diverse indigenous norms and with value-laden Constitutions. Rule of law guarantee is the core value of both republics. Yet the two nations differ in their approach to provide a space for the accommodation of non-state legal systems within the bounds of constitutional morality. Acceptance of custom as a source of law in the South African Constitution is tempered with a duty for custom to be developed as per constitutional values. Indian courts, on the other hand, are empowered to declare void a usage or custom which runs counter to the fundamental rights. Each approach has led to varying sets of problems and challenges which require being addressed in order to safeguard constitutional supremacy.

Constitutional Dilemmas in the Recovery of Corruptly Acquired Assets in Kenya: Strengthening Judicial Assault on Corruption

by | Sep 17, 2019 | AJCL, AJCL 2016

Constitutional Dilemmas in the Recovery of Corruptly Acquired Assets in Kenya: Strengthening Judicial Assault on Corruption

Authors Tom Kabau

ISSN: 2521-5434
Affiliations: Senior Lecturer at the School of Law, Jomo Kenyatta University of Agriculture and Technology
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 23 – 57

Abstract

Despite widespread incidences of corruption in Kenya, obtaining evidence for the prosecution of offences relating to the vice is highly problematic. As a response to such challenges, the possession of unexplained assets, which is categorised as illicit enrichment in international legal instruments, creates a presumption of corrupt conduct by virtue of section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). On that basis, ACECA shifts the burden of proof to the subject person, requiring him to demonstrate that the property was obtained lawfully. Whilst section 55 of ACECA provides that such court proceedings are of a civil nature, their linkage with criminal prosecution is extremely high, a fact that Kenyan courts seem to take into account while interpreting the scope of the right to a fair trial in such cases. Unexplained assets recovery proceedings are often challenged in court on allegations of violation of the constitutional right to a fair trial, especially the presumption of innocence, and the right against self-incrimination, which are categorised as absolute entitlement under the Constitution. However, widespread corruption erodes accountability, undermines the rule of law and, therefore, establishes conditions in which even the right to a fair trial cannot be realised. It is on that basis that the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Such an interpretative approach may facilitate institutionalisation of accountability in public institutions, including in the Judiciary, and therefore guarantee all Kenyans the right to a fair trial.

Befriending the Judiciary: Behind and Beyond the 2016 Supreme Court Amicus Curiae Rulings in Uganda

by | Sep 17, 2019 | AJCL, AJCL 2016

Befriending the Judiciary: Behind and Beyond the 2016 Supreme Court Amicus Curiae Rulings in Uganda

Authors Christopher Mbazira

ISSN: 2521-5434
Affiliations: Professor of Law, Makerere University School of Law, and Advocate of the Courts of Judicature of Uganda; Associate Professor of Law and Coordinator of the Public Interest Law Clinic (PILAC), Makerere University School of Law, and Advocate of the Courts of Judicature of Uganda
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 1 – 22

Abstract

In the heat of the 2016 presidential election petition challenging the re-election of Yoweri Kaguta Museveni in Uganda, two amicus curiae applications were filed in the Supreme Court – one from a group of civil society activists, while the other was instituted by nine Makerere University law professors. This article provides a review and analysis of the Supreme Court decisions on the two applications against the backdrop of a largely conservative approach to the admission of amicus curiae briefs in Ugandan courts. It argues that the decision in the Makerere professors’ case set a progressive precedent for the admission of such applications, and clarified several issues, including the questions of bias, the expertise of the intended ‘friends’, and the place of the public in such an application.

The Right of Access to Information in the Kenyan Constitution: An Indirect Denial of Other Fundamental Rights to Non-citizens?

by | Sep 17, 2019 | AJCL, AJCL 2017

The Right of Access to Information in the Kenyan Constitution: An Indirect Denial of Other Fundamental Rights to Non-citizens?

Authors Ndivhuwo Ishmel Moleya

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 155 – 184

Abstract

This article analyses the right of access to information under article 35(1) of the Constitution of Kenya. In particular, it questions the reasonableness and justifiability of the right of access to information as conceptualised. It argues that the manner in which the provision is couched does not resonate with the broader values and principles that the Constitution represents. In particular, it argues that the provision is couched in a manner that inhibits the enforcement of other fundamental rights that the Constitution confers to non-citizens. It illustrates the point by analysing the relationship between randomly selected fundamental rights and the right of access to information. The article also analyses the provision in relation to international legal instruments governing the right of access to information and illustrates that the provision is inconsistent with such mechanisms, which are directly applicable in Kenya by virtue of articles 2(5) and 2(6) of the Constitution. The provision on the right to access information is further analysed as a so-called limitation clause, by juxtaposing it with article 24 of the Constitution, in order to establish whether it limits non-citizens’ right of access to information in a reasonable and justifiable manner. The article finally suggests that the provision should be amended to expand its ambit to include non-citizens.

Proscription of Floor Crossing in Nigeria: The Limits of the Constitution and the Supreme Court

by | Sep 17, 2019 | AJCL, AJCL 2017

Proscription of Floor Crossing in Nigeria: The Limits of the Constitution and the Supreme Court

Authors Gabriel O Arishe

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 126 – 154

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.

Procedural Technicalities in the Resolution of Election Disputes by the Supreme Court of Kenya

by | Sep 17, 2019 | AJCL, AJCL 2017

Procedural Technicalities in the Resolution of Election Disputes by the Supreme Court of Kenya

Authors Berihun Adugna Gebeye

ISSN: 2521-5434
Affiliations: Tutorial Fellow, School of Law-University of Nairobi
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 99 – 125

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.

Human Rights and Family-Policy Issues Under Kenya’s Marriage Act of 2014

by | Sep 17, 2019 | AJCL, AJCL 2017

Human Rights and Family-Policy Issues Under Kenya’s Marriage Act of 2014

Authors Michael Nyongesa Wabwile

ISSN: 2521-5434
Affiliations: Associate Professor, Faculty of Law, Egerton University; Executive Director of the Association of Child and Family Lawyers of Kenya
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 67 – 98

Abstract

With the enactment and coming into force of Kenya’s Marriage Act of 2014 and subsequent case law in this regard, it is necessary to explore the implications of this legislation for the enjoyment of civil liberties and human rights. The Marriage Act traverses wide territory, from the basic standards for establishing marital status, matrimonial responsibilities, termination of marriage and post-divorce settlements. It also engages themes in constitutional law. This article illustrates the complexity of rights claims in marriage law in a pluralist Kenyan society. This is foreseeable, because human rights are essentially contested political values, which societies deliberate on and agree to implement. Thus, there are competing visions of equal rights of spouses at the time of contracting marriage and the entrenched cultural practices of bride price. Courts have attempted to interpret the legal implications of equal rights in polygamous marriage, while the basis for post-divorce adult maintenance is contentious. Recent cases suggest that some critical aspects of contested rights issues, such as equal rights in marriage and plural marriages, remain unsettled. Moreover, the constitutional promise of ‘recognition and protection of the family’ cannot be addressed by the restricted scope of the Marriage Act. For families outside marriage, the gaps in legislation represent uncertainty regarding the ideal policy response, especially due to the reluctance to impose formal legal regulation on non-formal family structures. By dissecting competing value propositions of rights claims, the article demonstrates why the struggle for family rights should continue in the arena of interpretational communities. These include the courts, professional associations, experts, civil-society organisations and legislative bodies.

Interpreting the Power of the Kenyan Senate to Oversee National Revenue Allocated to the County Governments: Building a Constitutionally Tenable Approach

by | Sep 17, 2019 | AJCL, AJCL 2017

Interpreting the Power of the Kenyan Senate to Oversee National Revenue Allocated to the County Governments: Building a Constitutionally Tenable Approach

Authors Conrad M Bosire

ISSN: 2521-5434
Affiliations: Katiba Institute, Nairobi
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 35 – 66

Abstract

Article 96(3) of the 2010 Constitution of Kenya provides that the Senate can exercise oversight over the national revenue allocated to county governments. However, the meaning and the implication of the constitutional provision is not clear. This is due to the fact that county assemblies, established as one of the alternate organs, sharing in governance authority in a separation-of-power framework, have the primary role of oversight over the county executives. However, a plain reading of article 96(3) of the Constitution suggests that the Senate may play a similar or shared role with regard to the county assemblies. Courts, scholars and the Senate itself have interpreted this provision in various ways. Despite the varied interpretative approach, the Constitution prescribes how its provisions should be interpreted and constructed. Using the constitutional interpretation tools espoused under the Constitution, and through an evaluation of comparable literature and practices, the article proposes an ideal interpretative approach that can be utilised to provide an appropriate clarification of the scope and extent of the power of the Senate to oversee national revenue allocated to county governments.

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.