Constitutional Adjudication In Africa

Providing the first comparative analysis of African attempts to promote respect for rule of law and constitutional justice, this book examines the diverse and distinctive approaches to constitutional adjudication taken. It captures positive and negative developments, and future prospects for the different models of constitutional review.

Over the last 25 years, the doctrine of separation of powers has been established as both a foundational value and a structural principle applied by the courts in interpreting the relationship between South Africa’s constitutional structures. Jurisprudentially, the practicalities and contours of how, when and by whom the separation of powers should be determined has proven to be controversial. Therefore, the past decade has been characterised by heightened political contestation, often resulting in extensive litigation posing thorny political issues. This has had profound implications for the judiciary and raised difficult questions on the very nature of South African constitutionalism. These political contestations gathered even greater momentum and urgency during the early days of COVID-19 in 2020, when the first iteration of this book was produced as a special issue of the South African Journal on Human Rights. This timely volume brings together critical reflections on developments in South Africa’s separation of powers jurisprudence and theory, the role and function of the judiciary through its judgments in shaping the landscape of constitutional politics, as well the implications of this for the consolidation of South Africa’s democratic constitutional project. It makes an important contribution to the debate on the politics of constitutional adjudication in light of the doctrine of separation of powers. This book will be of interest to researchers and advanced students of politics, history, law and legal theory, human rights, and African studies.

A Theory of African Constitutionalism asks and seeks to answer why we need a new theoretical framework for African constitutionalism and how this could offer us better theoretical and practical tools with which to understand, improve, and assess African constitutionalism on its own terms. By locating constitutional studies in Africa within the experiences, interactions, and contestations of power and governance beginning in precolonial times, the book presents the development and transformation of African constitutional systems across time and place, along with the attendant constitutional designs and practices ranging from the nature and operation of the African state to its vertical and horizontal government structures, to its constitutional rights regime. This title offers both a theoretically and comparatively rich, historically and contextually informed, and temporally and spatially extensive account of the nature, travails, and incremental successes of African constitutionalism with detailed case studies from Nigeria, Ethiopia, and South Africa. A Theory of African Constitutionalism provides scholars, policymakers, governments, and constitution builders in Africa and beyond with new insights for reimagining the purpose, substance, and scope of constitutions and constitutionalism.

This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.

Constitutional Deference, Courts and Socio-Economic Rights in South Africaby Kirsty McLean2009ISBN: 978-0-9814124-8-1Pages: viii 246Print version: AvailableElectronic version: Free PDF available.

With a new and comprehensive account of the South African Constitutional Court's social rights decisions, Brian Ray argues that the Court's procedural enforcement approach has had significant but underappreciated effects on law and policy, and challenges the view that a stronger substantive standard of review is necessary to realize these rights. Drawing connections between the Court's widely acclaimed early decisions and the more recent second-wave cases, Ray explains that the Court has responded to the democratic legitimacy and institutional competence concerns that consistently constrain it by developing doctrines and remedial techniques that enable activists, civil society and local communities to press directly for rights-protective policies through structured, court-managed engagement processes. Engaging with Social Rights shows how those tools could be developed to make state institutions responsive to the needs of poor communities by giving those communities and their advocates consistent access to policy-making and planning processes.

In our globalized era it has become impossible to deal effectively with constitutional law and related subjects such as fundamental rights, administrative law and political science without knowledge of foreign systems. A wealth of literature is available on practically all constitutional systems and the intricacies of their application. This, however, presents the constitutionalist with a formidable problem: Which foreign systems should I explore in order to make relevant comparisons, and how should I go about it? This book addresses the core problems of comparability and appropriate comparative methodology in the realm of contemporary constitutionalism. The outcome is, however, not mere theorizing. Most of the text is devoted to an incisive application of the chosen comparative method to four geographically, historically, and culturally divergent, but thoroughly comparable, constitutional systems. In the course of the comparative exercise, contemporary constitutional dogma and constitutional mechanics are analyzed and explained, in many instances in their historical contexts, making the book itself a useful source of comparative and historical information.

This book compares the constitutional justice institutions in 16 West African states and analyses the diverse ways in which these institutions render justice and promote democratic development. There is no single best approach: different legal traditions tend to produce different design options. It also seeks to facilitate mutual learning and understanding among countries in the region, especially those with different legal systems, in efforts to frame a common West African system. The authors analyse a broad spectrum of issues related to constitutional justice institutions in West Africa. While navigating technical issues such as competence, composition, access, the status of judges, the authoritative power of these institutions and their relationship with other institutions, they also take a novel look at analogous institutions in pre-colonial Africa with similar functions, as well as the often-taboo subject of the control and accountability of these institutions.