Several recently-published books on African constitutionalism in our collection caught my eye this week. I admit that I don’t really know much about this topic, but it strikes me as massive, likely made up of many varying and diverse philosophies and viewpoints. So I was interested in exploring its recent scholarly treatment.
In this post, I will focus on the two books that are part of a new Oxford University Press series, the Stellenbosch Handbooks in African Constitutional Law. This series, edited by Professor Charles Manga Fombad of the Faculty of Law at the University of Pretoria in South Africa, is “designed to avoid a mere repetition of the now well-rehearsed concerns and doubts about constitutionalism on the continent and instead to identify, analyse, and promote serious discussion on the critical issues that can shape, refine, and deepen the strides being taken towards consolidating constitutionalism in Africa.”
The first book in the series, Separation of Powers in African Constitutionalism (ISBN: 9780198759799), was published in 2016.
Part I of the book contains two extremely helpful and informative introductory chapters, both written by Professor Fombad. The first chapter offers a historical overview to African constitutionalism that catalogs and explains its many influences, including colonialism (accompanied by the implementation of common law and civil law legal systems), political ideologies (democracy, socialism), religion, and indigenous institutions. It also includes illustrative examples from the constitutions of several jurisdictions, including Cape Verde, South Africa, Tunisia, Egypt, Burundi, Zambia, Botswana, Malawi, Cameroon, and many others. It concludes with a discussion of the influence of the Organisation of African Unity (OAU), which later became the African Union, and the adoption of the African Charter on Human and People’s Rights. Chapter two provides a general overview of how the concept of the separation of powers manifests itself in African constitutions, as influenced by the American presidential system, the British parliamentary system, and the French “hybrid” system.
Part II of the book includes chapters that focus more narrowly, either on a specific issue related to the separation of powers (such as power sharing between the branches, the role of the judicial branch, and government accountability), or on a specific jurisdiction (Kenya, Nigeria, Ethiopia, and Namibia) or group of related jurisdictions (Lusophone, Francophone, and Anglophone Africa). Part II focuses bit more heavily on sub-Saharan Africa than Part I, but it still provides an extensive analysis of the jurisdictions that are covered.
The second book in this series, Constitutional Adjudication in Africa (ISBN: 9780198810216), was published in 2017.
As with the first book in the series, Professor Fombad provides a very helpful introductory chapter that provides an overview of constitutional review in Africa. He begins by distinguishing between the “decentralized” and “centralized” models of constitutional review. According to Professor Fombad, under the decentralized view, as explained in the U.S. Supreme Court’s decision in Marbury v. Madison, “constitutional matters are dealt with by ordinary courts during normal proceedings.” (p. 20) By contrast, the centralized model, as developed in Europe by Hans Kelsen, features constitutional adjudication that is “carried out by a centralized, often specialized, tribunal established independently outside the judicial branch during special proceedings.” (p. 21) The chapter then discusses how these models have been employed and adapted in African jurisdictions, providing, as a means of illustration, a comparative study of judicial review in Benin and South Africa. The chapter concludes with information about access to and remedies provided by courts in African jurisdictions that have jurisdiction over constitutional matters.
This introductory chapter is followed by several chapters that focus on constitutional jurisprudence in specific African jurisdictions, including Benin, Cameroon, Angola, Ghana, Nigeria, South Africa, and Ethiopia. There are also chapters discussing the impact of transjudicialism on constitutional adjudication, including the effects of international law norms and the work of regional and sub-regional courts in Africa.
Another chapter expands on the influence of Ubuntu (“the belief that the well-being of the individual and that of the community are inextricably linked – that one cannot exist without the other … (and that) the well being of the community is inextricably linked to a harmonious relationship with both its ancestors and with nature” (p. 294)) on constitutional adjudication in Africa.
Finally, Professor Fombad’s conclusion explores the further development of constitutional justice in Africa in the future.
As with the first book in the series, the focus here seems to rest on sub-Saharan African countries. However, these two books provide an excellent broad introduction to this topic. The content of these books is extensively annotated, providing citations to many other books and articles that researchers can use to perform a deeper dive into this subject. Both books also include tables of cases and legislation.
I am glad that Oxford University Press is publishing this series, and I am looking forward to exploring its future volumes as they are released.
To explore other books in our collection related to African Constitutionalism, click here to search the HOLLIS library catalog by this subject.