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
None
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
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.
ISSN: 2521-5434
Affiliations: Lecturer, Faculty of Law, Egerton University, Kenya
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 71 – 114
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.
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
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.
ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 1 – 34
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.