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Edited By: Charles M. Fombad

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

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From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 December 2024

(p. 399) Index

abuse of power
administration and 279
constitutional guarantees 114, 212
courts and 212
global concerns 339
hybrid institutions 340, 341
hybrid institutions, as smokescreens for 330–1
Nigerian legislature 148
post-1990 constitutions 22
public prosecutor, Francophone Africa 374–6
separation of powers 58, 269, 326, 392
weak judiciaries 18
Zimbabwe constitutional provisions 71–2
accountability
Attorney-General 351–2
Burundi and 328
constitutions and 48, 138
democratic 277
enforcement of 146–7
governance and 296
hallmarks of 247
hybrid institutions and 89, 90, 325, 326–8, 329–40, 340–3
judiciary 262, 282, 291, 320
military culture and 150
Nigerian legislative assemblies 138
promoting 68
public prosecutor 359
separation of powers 69, 359
traditional measures 89
transparency see transparency
adaptive legislation
judicial response to 259–62
administrative tribunals
discretionary powers of 318
executive and 76
ouster clauses see ouster clauses
African Charter on Human and Peoples’ Rights
constitutions, influence on 42–5
regional instrument, as 2
socio-economic rights 392
violation of 378, 379
African constitutionalism see constitutionalism
African National Congress (ANC)
constitutionalism and 388
death penalty 80
founding members 35
African presidentialism 4, 104–5
African socialism 25–6
African Union
constitutions, influence on 43, 44
Al-Azhar 32
Al-Qaeda 33
Al-Shabaab 30, 31
Ali, Ben 22
American presidential system
Anglophone Africa, features adopted by 64
check and balances 63
constitution, expressed in 62
executive 62–3
judicial power 63
legislative power 63
president 62–3
separation of powers model, as 62
Vice President 63
Anglo-American model
dictatorship, risks of 70
judicial/executive relationship 69, 73–8
judicial/legislative relationship 69, 78–81
legislative/executive fusion 62, 69, 70–3
Anglophone Africa, judicial/executive relations
Anglo-American influence 73–8
Attorney-General 73
Director of Public Prosecutions 73
executive exercising judicial powers 75–6
judicial appointments 73
judicial salaries 74
judiciary exercising executive powers 76–8
political interference, judicial protection from 74
prerogative of mercy 75
South Africa 74, 77, 211–12
Anglophone Africa, judicial/legislative relations
Anglo-American influence 78–81
binding precedent, doctrine of 79
judicial salaries 79
Judicial Service Commission, role of 78
legislative control of judiciary 78–81
legislative powers exercised by judiciary 79–80
legislative supremacy 79
Anglophone Africa, legislative/executive relations
Anglo-American influence 70–3
conclusions to be drawn 113–15
constitutional power, identifying sources of 95–100
executive authority 105–8
hybrid institutions 342
legislatures 109, 114
monistic/dualistic systems 97–100, 113
parliamentary sovereignty/presidential imperialism 95–100
parliaments 109–11
patterns of interaction 111–113
presidents 102–5, 111
Anglophone African constitutionalism 96–7, 114, 115
Anglophone African constitutions
American traditions 47–8
Anglo-American influence 69
(p. 400) colonial influence 23–4, 98
common law tradition 47, 48–51, 52
constitutional disputes 50
customary law 38
executives 105–8
Ghana see Ghana
interventionist approach 49
judicial/executive relations see Anglophone Africa, judicial/executive relations
judicial/legislative relations see Anglophone Africa, judicial/legislative relations
Kenya see Kenya
legislative/executive relations see Anglophone Africa, legislative/executive relations
length of 48
multi-party democracy 184
Namibia see Namibia
parliaments 109–11
post 1960 48, 114
presidents 100–5, 111
public participation in 21, 388, 390
religion 30
single hierarchy of courts 49
South Africa see South Africa
transparency, promotion of 50
Angola
anti-corruption agencies 331
Attorney-General 166, 190
conflict resolution, traditional mechanisms 163–4
constitution, historical development of 182–7
constitution, socialist-style 26
consitutional court see Angolan consitutional court
constitutional principles 188
constitutional reforms 1991/92 184
constitutional status, pre-independence 182–4
courts, independence of 171–2
customary law 163
democratic constitution-making process 184–7
dual vote, obligatory 189–91
hybrid institutions 328
‘hyper-presidentialist’ 190
international human rights 42
judges, appointment of 177–8
judicial/executive, relations see Angolan judicial/executive relations
judicial independence 173–4
judicial supervisory bodies, appointments to 177–8
legal system, Portuguese influence on 161–3, 169
liberation movements 173, 182
Marxism–Leninism ideology 19
multi-party democracy 184, 198
municipal courts 164
National Assembly 173, 177–8, 184–7, 189–92, 194–6
pardon and commute, power to 179
parliamentary powers 196
president, impeachment of 4, 189, 191
presidential absolutism 191–201
presidential powers 177, 190, 199, 200, 201
presidential tradition 182
‘presidentialist’ system of government 189
rule of law 22, 170, 182, 186–9
separation of powers 170, 187–9, 197
super-presidentialism see super-presidentialism
UNITA See UNITA
Angolan constitutional court
composition of court 192–4
conflict between parliament/president 182
constitutional clause, disallowing 189
constitutionality challenge 192–3
generic jurisdiction of 191–2
justices of the court 190, 192, 197, 198
Parliamentary Oversight judgment 195, 197, 199, 201
pre-emptive review jurisdiction 186–7
Angolan judicial/executive relations
constitution, Portuguese influenced 161
constitutional court see Angolan constitutional court
courts, independence of 171–4
customary law, recognition of 163–5
judicial appointment 177–8
judicial/executive power, distribution of 165–6
judiciary, subordinate in political system 168
pardon/commute sentences 179
rule of law constitutionally based 170
separation of power constitutionally based 170 see also Lusophone Africa, judicial/executive relations
and super-presidentialism
anti-corruption agencies 59, 89, 328, 331, 333
apartheid
death penalty 79
judges 208, 211, 305, 306–7
Namibia 302
South Africa 7, 35, 208, 311–12, 340, 342, 353
Arab Spring 22, 30–1, 387
Arabophone Africa 22
Attorney-General
appointments, political influence over 103, 120, 190, 347
decision not to prosecute 351–2
Director of Public Prosecutions and 347
executive/judicial branch, as part of both 73
Attorney-General, by country
Anglophone Africa 73, 345, 348
Angola 166, 190
Cape Verde 166
Ghana 347
Guinea-Bissau 166
Kenya 103, 120, 123, 291
Lusophone Africa 168, 171, 176–9
Mozambique 174
Namibia 103, 300, 310, 311, 312, 315, 316, 320
Nigeria 347
Príncipe 179
São Tomé 179
Sierra Leone 347
(p. 401) Uganda 347
United Kingdom 347, 348, 350
Zambia 347
Zimbabwe 209
Auditor-General 50, 59, 103, 146, 151, 190, 326–9
authoritarianism
abuse of powers 52
benevolent 96
colonial 1, 16, 20, 28
executive 95, 96, 213
resurgence of 382
separation of powers and 52
Bashingantahe institution 37
Benin
access to justice 214
anti-corruption agencies 331
coalitions 220
executive/judicial relations see Francophone Africa, executive/judicial relations
executive/legislative relations see Francophone Africa, executive/legislative relations
Francophone influence 29, 82
international human rights 42
judicial/legislative relations see Francophone Africa, judicial/legislative relations
judicial review of executive action 366
judiciary, role of 220
Marxism–Leninism ideology 19
‘militant democracy’ 390–1
politics, responsible/irresponsible 220–1
public prosecutor 364, 372–3, 375, 376–7
socialist-styled constitution 29
bicameral system 3, 123, 126, 133, 145, 287
Bicesse Accords 184
bill of rights
Botswana 38
duties and 45
Ghana 16
international 42, 43
Kenya 38, 288, 290, 291, 293
Namibia 301, 303–4, 306, 312
Nigeria 16
South Africa 39, 302, 306, 338
violations of rights 18
blasphemy 31
Boko Haram 30–1
Botswana
Anglophone constitution 79, 218
bill of rights 38
corruption and 333, 341
courts 218–19, 222
customary law rules 38
dual system of courts 36
executive functions exercised by judiciary 76
governance 218
judicial appointments 73, 74
judicial/executive relations 74, 76–7
judiciary 218–19
legislative/executive relations 71, 72
multi-partyism 18
National Assembly 79
Ntlo ya Dikgosi (House of Chiefs) 36
prerogative of mercy 75
presidential assents to bills 72
rule of law, compliance with 218
second chamber of parliament 36
traditional courts 35
traditional rulers 36
British parliamentary system
constitution, lack of written 65–6, 98
fusion of powers 62, 64
judicial/executive relationship 65
judicial/legislative relationship 65
legislative/executive relationship 64
parliamentary sovereignty and 3, 95, 109, 114, 227
separation of powers model, as 64
prime minister 64
Burkina Faso
Marxism–Leninism ideology 19
prosecution/executive relationship 378, 379, 380
Burundi
Bashingantahe institution 37
hybrid institutions 328
traditional courts 35, 37
cabinet members
appointment of 105–6
Cameroon
constitution, length of 49
executive/judicial relations see Francophone Africa, executive/judicial relations
executive/legislative relations see Francophone Africa, executive/legislative relations
Francophone influence 82
fundamental freedoms, constitutional affirmation 42
judicial/legislative relations see Francophone Africa, judicial/legislative relations
public prosecutor 364, 370, 371, 374, 377
Cape Verde
constitution 29
judiciary/executive relations see Cape Verde, judicial/executive relations
Cape Verde, judicial/executive relations
Attorney-General 166, 178
constitution, Portuguese influenced 162
courts, independence of 171, 173, 174
executive power/judicial power, distribution of 166
judicial appointment 178
judicial supervisory bodies, appointments to 178
judiciary, subordinate 168
pardon and commute sentences 179
rule of law 170
checks and balances
Angola 190, 191, 193
expansion of 88
French system 67, 86
hybrid institutions 89, 325, 330, 333, 340, 341
Kenyan 117, 119, 130
(p. 402) Kenyan judicial/executive relations 286, 288, 294
legislative/executive branches 70, 122, 124, 125, 141
Montesquieu/Locke 60
Nigeria, constitutional system 135, 136, 138, 141, 149, 153
Nigerian judicial/executive relations 239, 240, 242
public prosecutor 366, 380, 381
separation of powers, as a system of 59, 244
traditional 39
United States system 63–4
civil law
binding precedent and 88
common law compared 49–51
dominant executive 89
Francophone Africa and 23–4, 52, 359
inquisitorial prosecutorial system 346
legality of prosecution principle 365
public interest principle 360
colonial influences
Anglophone Africa 24
autochthonous constitution 24
civil law influences 23, 24, 48–51
colonial administrators 14–15
colonial Africa 14–15
colonial legal systems 23, 24, 46–51
colonial powers 22–4
common law influences 23, 24, 48–51
constitutional systems 24
Francophone Africa 24
modern constitution, strong effect on 46–8
Westminster-type constitutions 24
Commission for Gender Equality 50, 327
common law
accusatorial prosecutorial system 362
civil law compared 49–51
discretion to prosecute 351
judicial legislation and 79
judicial precedent, doctrine of 65
judicial review and 76
Westminster constitutional system 52
concentration of powers
abuse of power 58
dangers inherent in 89, 99
excessive 1, 17, 18, 58–9, 90
post-colonial 2
presidential 165, 176
reducing 123
separation of powers and 59, 68, 89, 113, 393
conflict resolution
Lusophone Africa and 160, 165, 180
traditional mechanisms of 163–5
Congo, Democratic Republic of
anti-corruption agencies 331
Belgian rule 15
constitution Loi Fondamentale 1960 24
constitution 2006 30, 48, 49, 82, 86, 88
constitutionalism 17
judiciary, constitutional provisions 367, 376
legislative elections 17
Marxism–Leninism ideology 19
ruling party, constitutional provisions 27–8
Conseil Supérieur de la Magistrature 50, 67, 366, 379
constitutional courts
authenticity, problem of 389
authority of 390
Francophone 87–8
Kenya 391
powers 51, 209
constitutional systems
monistic/dualistic 97–100, 113
constitutionalism
absence of 205
American 60, 393, 395
Anglophone Africa 70, 96–100, 115
colonial Africa 14–15
competing notions of 115
constitutionalist thinking 96–9
credibility of 206
dangers of 99
dictatorships and 386
Francophone Africa 195
globalization and 96
hybrid institutions 325, 341
insider reforms 390
Islam, influence of 30
judicial supremacy 222
judicialism and 294
Lusophone Africa 190, 195
modern 34, 37, 68, 89, 326, 343
post-colonial 96
presidential imperialism and 99
presidentialism 104
promotion of 58, 328
revolutionary 386–7, 388
second-generation rights 392
separation of powers and 1, 59, 89, 113–15, 242
socialist constitutional model 29–30
socio-economic rights and 392
South African 219, 338, 339, 393
terminology 100
third-generation rights 392
transformative 49, 393, 394
virtuous alignment 222
Western 393, 395–6
constitutions, Anglophone Africa see Anglophone African constitutions
constitutions, evolution of modern African
Anglophone Africa see Anglophone African constitutions
colonialists see colonial influences
duties 45
elites, influence of 15–18, 20, 173, 387–9
emerging trends 46–51
Francophone Africa see Francophone African constitutions
human rights see human rights
ideological influences see ideological influences
indigenous influences see indigenous influences
internationalization, impact of 41–5
(p. 403) Islam, influence of 31–3
legal traditions 46–51
public participation 21, 388, 390
‘regimes of horror’, safeguarding against 386, 390
religious influences see religious influences
separation of powers see separation of powers
socialism, influence of see socialist-styled constitutions
‘third wave of democratization’ 13, 20
constitutions, post-colonial/independence 1950s/1960s
bill of rights, provision of 16
constitution-building, first generation 14
constitutionalism, introduction of 15
European withdrawals 17
first generation of 15–16, 20, 51
Francophone Africa 17
fundamental rights, omission of 15–16
liberal democracy, introduction of 15
power transfer to elites 15, 16
Western experts crafting constitutions 15–16
constitutions, post-independence 1960s/1989 14
abuses of power 20
authoritarian rule 18, 20
constitution-building, second generation 14
constitutionalism, failure to promote 20
customary law 38
human rights violations 18, 20
independence constitutions 18
military dictatorship 18
one-party systems 18–19, 20
second generation of 18, 20, 392
constitutions, post-1990
abuse of powers 22
accountability, institutions to promote 21
colonial patterns
constitution-building, third generation 14
constitutional experts 21
constitutional standards, adoption of common 24
dictatorships 21, 22
entrenchment of core principles 21
human rights recognition/protection 21
multi-party democracy 21, 184, 387
new era of constitution building 21, 22
popular participation in 21, 22
power, deconcentration of 21
presidential powers, reinforcement of 22
reforms 184
separation of powers entrenchment 58
third generation of 20–1, 22, 392
transparency, institutions to promote 21
constitutions, post-2010 22
corruption
abuse of power see abuse of power
anti-corruption see anti-corruption agencies
Botswana and 341
global concern 339
hybrid institutions 333
judicial independence 171, 172
Nigeria 146–7
South Africa 330
Côte d’Ivoire
constitution of 367
judicial independence 370
public prosecutor 374–5
traditional dispute settlement systems 35
courts
constitutional see constitutional courts
hierarchy of 49–50
independence of see judicial independence
royal 66
subordination 206
surviving 206
traditional 34–8, 40
‘covering the field’ doctrine 138
cumul des mandats principle 67
customary law
application of 34
codification of 164–5
entrenchment of 36
international 41, 43
Lusophone Africa 163–5
oral nature of 39
women/youth, discrimination against 38
death penalty 80, 219
Director of Public Prosecutions
appointments, political influence over 104, 346
executive/judicial branch, as part of both 73
Kenya and 346
models of 347
South Africa 104, 348
subordination to Attorney General 347
United Kingdom 354
‘Victims Code’ and 357
doctrinaire socialism 25, 26
due process
banks and 279
judicial check on executive action 63
non-adherence to 149–51
quasi-judicial bodies 278, 283
reputation of the judicary 266
duties
concept of 45
judges 171, 173–5
performance of by executive 63
Egypt
anti-corruption agencies 331
constitution, socialist-styled 26
constitutions, elements of 22, 31–3
Islamic influence 30–3
judicial/executive relationship 208, 210
judicial survival 208
judiciary, politicized by government 210
elections
Angolan parliamentary 4
electoral practices 333
general 61, 71
Kenyan 125
legislative 17
military rulers, reappearance of 153, 388
multi-party 21
(p. 404) Nigerian 248–50, 388
politicized 99
presidential 77, 105
electoral commission
appointments to 103, 124
Ghana 109
independent 76, 333, 341
South Africa 327
Zimbabwe 328
Equatorial New Guinea 47, 82
Ethiopia
legislative/judicial relations see Ethiopian legislative/judicial relations
rule of law 265, 272, 279, 281, 283
Ethiopian legislative/judicial relations
constitutional interpretation 269–71
decisional independence 271–2
Ethiopian People’s Revolutionary Democratic Front (EPRDF) 266
federal/regional state courts 267
Federal Supreme Court 268
fused functions 266
historical background to 266–8
House of Federation 6, 269–71
House of Peoples’ Representatives 267
human rights, constitutionally entrenched 271
introduction to 265
judgments, legislative reversal of 272–4
judicial autonomy see judicial autonomy
judiciary, independent 267
judiciary, reputation of 266–8
junta 266, 280
‘jurisdiction stripping’ 275
legislative/executive relationship 268–9
Marxism–Leninism ideology 19
ouster clauses 277–82, 283
parliamentary system of government 268–71
quasi-judical bodies 277–82, 283
separation of powers in 268–71, 283
structural autonomy 275–7
Supreme Court 265–8, 270, 276, 279, 280, 281, 283
executive power
abuse of 212, 221
adaptive legislation 259–60
American presidential system 62–3, 104
Angola 177
British parliamentary system 64
Ghana 101
dominance of 5
judicial power, independent of 86–7
judiciary, control of 177, 207
judiciary, virtuous alignment with 216–21
limiting 3, 6, 8–9, 150, 151
Lusophone Africa 177
Namibia 106–7
policing 393
public prosecutor 365
executives
authority of president 105–8
cabinet ministers, appointment of 105–6
censure by parliament 108
constitutional role 139–40
executive action, confirmation of 107–8
interference by 263, 291, 292
judicial checks on 221
judicial/executive relations see judicial/executive relations
judicial review of executive action 63, 85, 86, 104
Kenya 123–5
legislative/executive relations see legislative/executive relations
Nigeria 139–41
power of see executive power
quasi-judicial bodies 277
responsibilities 106–7
‘faculté d’empécher’, concept of 193
‘faculté de statuer’, concept of 193
FNLA see Frente Nacional de Libertação de Angola (FNLA)
Francophone African constitutions
civil law and common law compared 49–51
constitutional tradition 52
constitutions, length of 48, 49
Côte d’Ivoire see Côte d’Ivoire
French Fifth Republic constitution of 1958 see under French Fifth Republic
hybrid institutions, emergence of 88, 89–90
judicial/executive relations 85–7
judicial/legislative relations 87–8
judicial review over executive actions 366
legislative/executive relations 82–5
national conferences 21
Francophone Africa, judicial/executive relations 85–7
Francophone Africa, judicial/legislative relations 87–8
Francophone Africa, legislative/executive relations 82–5
Francophone constitutional courts
review of legislation 87–8
French Fifth Republic
Benin constitutional model 29
constitution 1958 17, 24, 46, 48, 50, 52, 62, 66, 386
executive driven 2
French hybrid system
executive dominance 66–7
Francophone Africa, adoption by 62, 82
French Fifth Republic constitution of 1958 52, 66–7
Hispanophone Africa, adoption by 62
judicial/executive relations 85–7
judicial/legislative relations 87–8
judiciary, position of 66, 67
legislative/executive, collaborative relationship 66, 82–5
(p. 405) Lusophone Africa, adoption by 62
separation of powers model, as 66–7
Frente Nacional de Libertação de Angola (FNLA) 184
fundamental rights see human rights
Gabon
executive/judicial relations see Francophone Africa, executive/judicial relations
executive/legislative relations see Francophone Africa, executive/legislative relations
francophone influence 82
judicial/legislative relations see Francophone Africa, judicial/legislative relations
gacaca courts 38
Gadaffi, Muammar 22
Ghana
Attorney General 73, 352
constitution, public participation in drafting 390
duties 45
Ghana 16
judicial/executive relations see Ghanaian judicial/executive relations
judicial review powers 227
judiciary/legislative relations 81
legislative/executive relations see Ghanaian legislative/executive relations
National Assembly 227
National House of Chiefs 36
National Liberation Council (NLC) 227
nolle prosequi 351–2
political question doctrine 394
prerogative of mercy 75
presidents 100–3
Regional House of Chiefs 36
socio-economic rights 392
speaker 111
traditional chiefs 37
Ghanaian judicial/executive relations
constitutional history of 226–7
defying assumptions, introduction to 226
factors influencing 238
judicial review powers 227, 231
judiciary, constitutional protection of 233, 238
judiciary, emasculation by executive 227–30
judiciary, self-assertion of 233–7
judiciary, self-restraint 237–8
mutual toleration 232–3, 237
nature of 227–37
rule of law, respect for 229
suspicion/minimal trust, period of 230–2 see also Anglophone Africa, judicial/executive relations
Ghanaian judicial/legislative relations
abuse of legislative power 81 see also Anglophone Africa, judicial/legislative relations
Ghanaian legislative/executive relations
cabinet ministers, appointment of 105
censure by parliament 108
executive action, confirmation of 107
executive responsibilities 106
parliament, democratic composition of 109
patterns of interaction 111
presidential assents to laws 111
presidential power, democratic legitimation 102
presidents 100–3
good governance
accountability see accountability
Botswana 218
concentration of powers and 58, 59
constitutions and 22, 52
financial resources, impact on 145
judiciary, duty to ensure 295
legislative/executive relationships 136, 138, 147, 152, 153
promotion of 1, 44, 328, 334, 339
separation of powers and 68, 89, 90
South Africa 340
transparency see transparency
Guinea-Bissau
conflict resolution 164–5
judicial/executive relations see Guinea-Bissau, judicial/executive relations
National Assembly 178
Guinea-Bissau, judicial/executive relations
Attorney-General 166, 178
constitution, Portuguese influenced 161
courts independence constitutionally guaranteed 174
courts, independence of 171
customary law, recognition of 163–5
judicial/executive power, distribution of 166
judicial appointment 178
judicial supervisory bodies, appointment to 178
judiciary, subordinate in political system 168
pardon/commute sentences 179
rule of law constitutionally based 170
separation of power constitutionally based 170 see also Lusophone Africa, judicial/executive relations
Hispanophone Africa
colonial patterns, reduction in 24
constitutional tradition 48, 52
Equatorial New Guinea 47
separation of powers, French model 61–2, 68, 82
Spanish civil law inheritors 2, 23, 24, 47
Western Sahara 47
homosexuals 317–20, 389
House of Chiefs 36, 103
House of Federation 6, 269–71
House of Representatives
Nigeria 135, 137, 142, 144, 151
United States 62
human rights
abusers 35
colonial administrators and 18
constitutions and 42
customary law and 38
hybrid institutions 333, 342
independence constitutions 15–16
international law impact 2
Namibia 389
(p. 406) protection of 21
socialist-styled constitutions 27–8
violations of 18, 20, 333 see also bill of rights
human rights commissions
accountability and 76, 88–9, 333
South Africa 50, 327, 341
United Nations 175
Zimbabwe 328
hybrid institutions
abuse of powers, smokescreens for 330–1
accessibility to 333
accountability and 49–50, 59, 89–90, 325–7, 329–30, 334, 335–7, 340–3
Auditor-General see Auditor-General
constitutionally entrenched 327–8, 329, 330, 334–5
corruption 333
creation of 327
critical review of 330–4
decision implementation 332–3
elected officials compared 330
enhancing the role of 334
financial autonomy 336
fourth branch of government, as 88, 325, 343
funds shortage 332
history of 329
human rights commissions see human rights commissions
independent 325, 326, 338
influence/power roles 336
international law 339–40
judicial review 336
location within government 328–9
non-majoritarian argument 330
ombudsman see ombudsman
politicians, manipulation by 331, 335, 337
principles of 335–7
protection from government 334
Public Service Commission see Public Service Commission
regulatory nature 327
risks associated with 333
separation of powers and 88, 330, 342–3
South Africa and 327, 329–30, 332–8
terms used, variety of 326
transparency, promotion of 90
‘watchdog’ role 325
‘hyper-presidentialist’ 190
ideological influences
African socialism 25–6
anti-colonial 25
community land ownership 26
democratic centralism 27
doctrinaire socialism 26
father-capitalism 26
Marxist–Leninist 25
ruling party, constitutional entrenchment 27
social influences 25, 26
impeachment
chief executive 260
judges 275
presidents 4, 63, 112, 123, 125, 131, 191, 260
state governors 261
indigenous influences
constitutional institutions/principles 34
customary law 34, 36, 38
dual system of courts 36
‘modernists’ 35
ordre public 34
repugnancy test 34
traditional council 33
traditional courts 34–5, 36, 37, 38, 40
traditional institutions 36, 37, 40
traditional rulers 33–7, 40
‘traditionalists’ 35, 36
ubuntu, concept of 38–9
internationalization influences
global level 41–3
process of 41
regional 43–5
Iran–Contra 64
Islam
constitutions, influence on 30–3
Jihadist groups 30, 31
judges see judiciary
judicial appointments
Anglophone constitutions 73–4, 78
Botswana and 74, 218
Francophone systems 67
Lusophone systems 4
reducing executive influence 215
South Africa 74
Zimbabwe 73
judicial authority
backlash against decisions 209, 391
meaningfully independent 222
Ugandan challenge 210–11
judicial autonomy
decisional independence 271–2
judicial/legislative relationship 271
jurisdiction stripping 275
legislative reversal of judgments 272–4
ouster clauses 277–82
structural autonomy 275–7
judicial independence
judicial autonomy see judicial autonomy
branches of government and 169
de jure/de facto 169
meaning of 271–2
guaranteed in constitutions 173–6
Lusophone Africa 169, 173–6
protection of 247
right of pardon 87
salaries and 74, 255
threat to 87
undermining of 171, 172
judicial/executive relations
Anglo-American influence 69, 73–8
Cape Verde see under Cape Verde
French hybrid see under French hybrid system
Guinea-Bissau 166
judicial subordination 206, 207–12, 221–2
judicial supervisory bodies, appointments to 176–9
judicial supremacy 206
judicial survival 206, 212–16, 221–2
judiciary, appointment of 176–9, 180
judiciary, politicized by government 209–12
Mozambique 167
Príncipe 167
São Tomé 167
South Africa see under South Africa
virtuous alignment 207, 216–21
judicial/legislative relations
judicial power
American presidential system 62–3
constitutional amendment to restrain 210
excessive 215
executive exercise of 75–6
expansion of 209, 210, 212–14
indigenous influences 33, 34, 40
judicial review see judicial review
judicial subordination see judicial subordination
judicial supremacy see judicial supremacy
judicial survival see judicial survival
legislative powers, judicially exercised 79–80
Lusophone Africa and 159, 165
Nigeria 135, 136
political question doctrine 215, 394
Príncipe 179
credibly independent power 208–9
São Tomé 179
solution to separation of powers problems 205
South Africa 219
strategic assertion of 211–12 see also virtuous alignment
judicial precedent, doctrine of 65, 88
judicial review
Benin 2
constitution entrenchment 5
‘double-edged sword’ 212–13
Ethiopia 283
executive action and 63, 85, 86, 104
Francophone Africa 2, 366
Ghana 5, 77, 227, 231
Hispanophone Africa 52
hybrid institutions 336
Kenya 295, 298
‘legality’ 355
legislative acts, of 87–8
Lusophone Africa 52
Nigeria and 136, 215, 239, 243–5, 262, 263
power of 243, 244
prosecutorial decisions 353–6
public prosecutor, insulated from 345
South Africa 336
Judicial Service Commission
accountability function 327, 335
Anglophone Africa 50
constitutional entrenchment 327
hybrid institution 335
judicial appointments 73–4, 289
Kenyan 124, 289, 291–2, 298
Namibian 103, 311, 312, 315, 316
Nigerian 136, 250, 251, 256
South African 252
judicial subordination
courts, destruction of 207
executive power ignoring courts 207
fear and intimidation 206
puppets/pawns, placement of 206
judicial supremacy
access to justice as a constraint 214
appointment procedures 215
excessive power 215–16
extensive independent power 212–13, 214–15
political fragmentation 213–14
political question doctrine 215–16
social justice 214
judicial survival
apartheid-era judges 208
credibly independent authority/power 207–9
Egypt and 208, 210
executive, tolerance by 207
judicial power, roll back 209
Latin American dictatorial rule 207–8
strategic assertions 211–12
subordination 207
Zimbabwe, executive reprisals 209–10
judiciary
apartheid era 208
appointments see judicial appointments
binding precedent 79
control over executive 74
empowered 291
executive functions exercised by 76–8
executive power and 177–8, 180, 207
financing 239, 253
governments politicizing 209–10
independence of see judicial independence
judicial review 87
judicial subordination see judicial subordination
judicial supremacy see judicial supremacy
judicial survival see judicial survival
legislature, control and management by 78–9
moral ambiguity for 208
physical violence/imprisonment 209–10
political interference, protection from 74
power see judicial power
practice and procedure rules 80
salaries 78, 253, 255
weakest organ of government, as 226
western origin/traditional mechanisms 163–5
jurists
Lusophone Africa 159–60, 162
(p. 408) Kenya
Attorney General 73, 120–1, 124
bill of rights 291, 293
coalitions 106, 118–19, 125–6, 129, 130, 133
constitution see Kenyan constitution
constitutional courts 391
Director of Public Prosecutions 346
hybrid institutions 328, 333
judicial/executive relations see Kenyan judicial/executive relations
‘judicialization’ 216
legislative/executive relations see Kenyan legislative/executive relations
National Assembly 103, 105, 110, 112, 118, 123–33, 292–3, 296, 346
political question doctrine 394
prerogative of mercy 75
president 3, 101–3, 123
presidentialism 3, 104–5
prosecutorial independence 346
separation of powers 116, 122
socio-economic rights 392
speaker 111, 129
Kenyan constitution
constitutional framework 122–3
constitutional referendum 2005 121
constitutional review process 119–22
insider–outsider dynamic 388, 390
international human rights 42, 43
US/Westminster elements 3
Kenyan judicial/executive relations
Attorney-General 103, 123, 291
Attorney-General, redraft of constitution 120–1
Bill of Rights 291
checks and balances 286, 288, 294
constitution, enforcement of provisions 294–5
executive authority, judicially questioned 295–8
executive power over judiciary, post-2010 291–3
independence constitution 287–9
introduction 286–7
judges, appointment of 289, 292–3, 298
judges, removal of 293
‘judicial activism’, public criticism of 297–8
judicial independence 290, 291, 294
judicial oversight, post-2010 294–8
judicial review 295–8
Judicial Service Commission 291–3, 298
judiciary, emergence of emboldened 298
Judiciary Fund 293
pre-2010 287–90
rule of law, threat to 297–8
separation of power 76
Kenyan legislative/executive relations
American-style structure 117–18
assessment of 125–7
bicameral system 117, 123, 126
budget-making process 132–3
cabinet members, appointment of 105–6
censure by parliament 108
centralization of power 118
checks and balances 117, 119, 120, 122, 130
constitutional framework 122–3
constitutional referendum 2005 121
constitutional review process 119–22
elections 125–6
executive action, confirmation of 107
executive, oversight of the 122, 130–2
executive responsibilities 106
‘extensions of colonial rule’, dismissal of 116–17
governmental power, division of 123
law-making process 127–30
legislative deadlock 128
majimbo 116
National Constitutional Conference 120–1
national executive 123–4
national legislature 123, 124–5
parliament, democratic composition of 109–10
patterns of interaction 111–12
political parties 118–19
president 101
president as supreme executive 103
president, impeachment of 123, 131
presidential assent to laws 111
presidential power, democratic legitimation 102
presidential system of government 116, 119, 122–3, 133
prime minister 120
speaker 111, 128, 129
separation of power 70, 72, 116, 120, 122
Kenyatta, President Uhuru 101, 129
legislative/executive relations
Anglo-American model see under Anglo-American model
Zimbabwe see under Zimbabwe
legislative/judicial relations
French hybrid see under French hybrid system
legislature
American presidential system 63
British parliamentary system 64–5, 68
constitutional role 136–9
French hybrid 66
Kenya 123–5
law-making powers 72
legislative/executive relations see legislative/executive relations
legislative/judicial relations see legislative/judicial relations
lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights 7, 219
liberation movements
Angolan 173, 182, 183, 186, 187, 192, 193
Mozambican 173
Namibian 300, 301, 302, 304, 306, 307, 388
South African 200, 201
Locke, John 59, 60, 88
Lusophone Africa
Angola see Angola
Cape Verde see Cape Verde
constitutional tradition 52
customary law 163–5
judicial/executive relations see Lusophone Africa, judicial/executive relations
Guinea-Bissau 166
Mozambique see Mozambique
Portuguese law, influence of 160–3, 180
Príncipe see Príncipe
rule of law 169–70
São Tomé see São Tomé
separation of powers 169–70
Lusophone Africa, judicial/executive relations
Attorney-General, appointment of 168, 171, 176–9
conflict resolution, traditional mechanisms 160, 163–5, 180
courts, independence of 171–3, 180
customary law 163–5
government power 172
introduction 165–9
judges, appointment of 176–9, 180
judicial independence constitutionally guaranteed 173–6
judicial independence de jure/de facto 169
judicial supervisory bodies, appointments to 176–9
judiciary, politicized by government 209–10
judiciary, subordinate in political system 168
jurists beliefs 159–60, 162
magistrates’ training 161, 162, 171, 175, 180
overview 159–60
pardon and commute, power to 179–80
Portuguese law, historical influence of 160–3, 180
rule of law 168, 169–70, 173
separation of powers in constitutions 169–70
Madagascar
constitution 19, 22, 27, 28
Marxism–Leninism ideology 19
right to private property 28
scientific socialism 26
majimbo 116, 133
Malawi
anti-corruption agencies 331
human rights instruments 43
public prosecutor 347, 357
traditional courts 37, 38
Marxism–Leninism
Angola 19, 197
influence of ideology 25
Mauritius
multipartyism 18
prosecutorial decision, judicial review of 354
Mbeki, President Thabo 338
mediation
ceasefire agreement 184
legislative deadlock 127–9
public prosecutor and 365
military coup
Ethiopia 266, 280
Ghana 5, 227, 232, 235
Nigeria 6
military court
Lusophone Africa 166–7, 177, 190
military culture
entrenched in Nigeria 150–1, 153
military government
Ethiopia 266, 280
Ghana 232–6
Nigeria 239, 240, 245, 263
military rulers
reappearance of 388
Ministère Public 360, 362–4, 368, 370, 374, 376
Mobutu, President 18, 20
‘modernists’ 35
monarchy
absence in Africa 3, 95
absolute 37
heads of states, monarchical 102
prerogatives and 104–5
public prosecutors of the 360, 361
Montesquieu 59, 60, 63, 66, 88, 193, 269
Morocco
constitution 22
hybrid institutions 328
Islamic influence 30, 32–3
Morsi, Mohamed 31
Movimento Popular de Libertação de Angola (MPLA)
Angolan liberation movement 182, 183, 186, 187, 192, 193
Mozambican judicial/executive relations
Attorney General 174, 178
constitution, Portuguese influenced 161–2
courts, independence of 171, 172–3
courts independence constitutionally guaranteed 174–5
customary law, recognition of 163–5
judicial/executive power, distribution of 167
judicial appointment 178–9
judicial supervisory bodies, appointments to 178–9
judiciary, subordinate in political system 168
pardon and commute sentences 179
rule of law constitutional proclamation 170
(p. 410) separation of power, constitutional proclamation of 170 see also Lusophone Africa, judicial/executive relations
Mozambique
conflict resolution, traditional mechanisms 163, 180
judiciary/executive relations see Mozambican judicial/executive relations
liberation movements 173
Lusophone system 82
Mubarak, Hosni 22, 31, 208
Mugabe government 209–10
multi-party democracy
Angola 184, 198
arguments against 19
emergence of 271
Ghana 109
ideological option 96
Kenya 287
reinstating 387
South Africa 198
Museveni, President 210–11
Muslim Brotherhood 31
Muslims
constitutions, influences on 30–3
Namibia
bill of rights 301, 303–4, 306, 312
judicial/executive relations see Namibian judicial/executive relations
judiciary, independence of 306–8
legislative/executive relations see Namibian legislative/executive relations
liberation movements 301, 302, 304, 306, 307, 388
National Assembly 105, 108, 111, 112, 317
ombudsman 103, 104
president 101–3
rule of law 306
separation of powers 320–1
speaker 111
Namibian judicial/executive relations
Attorney-General 100, 103, 310–12, 315–16, 320
bail denial 308
Bill of Rights 301–2
diverse approaches, introduction to 300–1
executive statements, interference by 317–20
homosexuals, constitutional rights of 317–20, 389
human rights issues 302–3, 318
judges, ethnic deconstruction of 306–8
judges, rhetorical attacks on 391, 320
judicial independence 306–8
judicial independence, threatened by conflicts 301
judiciary, disregard for 302–4, 308–10, 320–1
judiciary, distrust of 307–8
Katofa case 302–4
liberation movements 300–2, 304, 306–7, 388
magistracy, independence of 312–16, 320
Magistrates’ Commission 315
prosecutions, manipulation of 304–6
Prosecutor-General, independence of 310–12, 320
Shifidi case 304–6
sodomy 317
South African influence 300, 303, 304–6
transitional government of national unity (TGNU) 301–6
Namibian legislative/executive relations
censure by Parliament 108
executive action, confirmation of 107–8
executive responsibilities 106–7
parliament, democratic composition of 110
patterns of interaction 112
presidential assent to laws 111
presidential power, democratic legitimation 102
presidents 101–2
presidents as supreme executives 103
speaker 111
National Assembly, by country
Botswana 79
Ghana 227
Guinea-Bissau 178
Namibia 105, 108, 111, 112, 317
Príncipe 179
São Tomé 179
South Africa 70, 74, 76, 78, 102, 108, 110, 112–13, 335
National Director of Public Prosecutions 104, 348
National House of Chiefs 37
National Judicial Council
Chief Justice of Nigeria 247
composition of 247
judges’ salaries 255
judiciary, funding for the 253–6
judiciary, support systems 256
President of the Court of Appeal, suspension of 248–50
State Chief Judges, appointment of 251–3
Nigeria
bill of rights 16
corruption 146–7
elections in 153, 388
judicial/executive relations see Nigerian judicial/executive relations
legislative/executive interaction see Nigerian legislative/executive relations
military rule 141, 147, 149, 152, 239, 385, 388
National Assembly 135, 137–47, 151–3, 241–4, 252, 254, 258–62
political question doctrine 215, 394
Senate 135, 137, 142–4, 246, 252, 260, 347
separation of powers 135, 140, 153, 244–6
socio-economic rights 392, 393–4
State Houses of Assembly 137, 153
traditional rulers 37
Nigerian judicial/executive relations
adaptive legislation 259–62
(p. 411) Attorney-General 347
checks and balances 239, 240, 242
Code of Conduct for Public Officers 247
collusion between executive/judiciary 250
Commonwealth (Latimer House) Principles 247
constitutional history 239–41
court orders, flouting of 263
executive action cases, judicial response to 256–9
executive power, constitutional provision 241
judges’ appointment, discipline, and removal 246–7
judges’ salaries 255
Judicial Code of Ethics 247
judicial independence, protection of 247, 254
judicial power, nature/scope of 135, 243–4
judicial review 136, 215, 245, 260, 263
judiciary, funding for the 253–6
judiciary, support systems 256
National Judicial Council see National Judicial Council
political questions, judicial review of 260–2
President of the Court of Appeal, suspension of 248–50
sensitive constitutional matters, judicial avoidance of 262, 263
separation of powers, meaning/scope of 244–6
State Chief Judges, appointment of 251–3
Nigerian legislative/executive relations
accountability, enforcement of 146–7
checks and balances 135, 136, 138, 153
conflict, causes of 147–53
corruption 146–7
‘covering the field’ doctrine 138
due process, non-adherence to 149–50
executive, constitutional role of 139–41
executive high-handedness 152–3
executive power 135, 241–3
judicial functionaries, appointments of 143–4
legislative lists 137
legislative oversight, unhealthy rivalry following 148–9
legislative powers 135
legislature, constitutional role of 136–9
military culture, entrenched 150–1, 153
political functionaries, appointment of 143–4
power to make laws 142–3
president 139–46
president, impeachment of 135, 241
presidential system, features of 136, 140–1, 148, 153
public expenditure powers 145–6
rule of law, non-adherence to 149
separation of powers 136, 140, 153
state of emergency, power to declare 144–5
transparency, enforcement of 146–7
war, power to declare 144–5
nolle prosequi 351
Ntlo ya Dikgosi (House of Chiefs) 36
Obasanjo, General Olusegun 151
ombudsman
Angola 172, 328
hybrid institution of accountability 59, 88, 89, 326–7, 333
Namibia 103, 104
South Africa 329, 335
ouster clauses 277–82
pardon
right of 87
power of, Lusophone Africa 179
parliamentary sovereignty 95, 109, 114, 227
parliamentary systems
Anglophone Africa 113
control and check 331
democratic composition 109–10
Francophone Africa 84
one-party 20
presidential assent to laws 111
speakers 111
Westminster tradition 3, 111
pledge of allegiance 99
political instability 17, 20, 340
political question doctrine
Kenya 216, 394
Nigeria 6, 215, 394
rejection of 394–5
Portuguese law
Lusophone Africa, influence in 160–3, 180
prerogative of mercy 75, 244
presidential powers
absolutism 199–201
abuse of state power/resources 70, 116–17
appointment powers 103–4, 107, 120, 143
checks and balances on 240
court orders, flouting of 298
democratic legitimation of 102
executive power, control of 107
imperialism 342, 381
pardon and commute sentences 179
reduction of 3
reinforcement of 22
presidential systems
Nigerian, features of 140–1
presidentialism
aim of 3
Anglophone Africa 100–5
executive responsibility and 114
presidents see presidents
super-presidentialism see super-presidentialism
presidents
Anglophone Africa 100–5
executive authority of 105–8
head of state functions 103
immunity from proceedings 101–2
impeachment of 84, 88
imperialism 342, 381
judicial rulings 219
powers of see presidential powers
presidential assent to laws 111
presidentialism, uniqueness of African 104–5
powerful presidencies 100–2, 393
supreme executives, as 102–4
(p. 412) Príncipe, judicial/executive relations
Attorney General 179
constitution, Portuguese influence 161–2
courts, independence of 171
courts independence constitutionally guaranteed 176
judicial/executive power, distribution of 167
judicial appointment 179
judiciary, management of the 167
judiciary, subordinate in political system 168
National Assembly 179
pardon/commute sentences 179
public prosecutors 167
rule of law, constitutionally based 170
separation of powers, constitutionally based 170 see also Lusophone Africa, judicial/executive relations
public expenditure
appropriation/authorization of 141, 145–6
legislative/executive interaction 141, 145–6
budget-making process 132–3
Kenya 132–3
Nigeria 141, 145–6
public interest concept
broadness of 352–3
decision not to prosecute 351–2
national security 357
principle of 360
prosecutors and 346, 347, 351, 359
scope of 352
utilitarian attitude towards 356
public prosecutor
public prosecutor, Anglophone Africa
adversarial systems 346
appointment of 346
Attorney-General 73, 345–7, 350
constitutional setting of 7, 345–8
decisions, disclosure of reasons 357
Director of Public Prosecutions 357
evidentiary test to justify a trial 351
Ghana 347, 351
independence of 347–8
international guidance on role of 349–50
judicial review of decisions 353–6
Kenya 346
Malawi 357
national security protocol 354–5, 357
Nigeria 347
nolle prosequi 351–2
opportunity principle 365
prosecutorial discretion 357, 358
prosecutorial guidelines, issue of 357
prosecutorial independence 358
public interest test 351–3, 357
reviews by 357
rule of law 345, 346, 349, 350–3
separation of powers and 345
Sierra Leone 347
South Africa 348, 352
United Kingdom model 347–8, 353–4
victims appeals, 357–8
Zambia 347
public prosecutor, Francophone Africa
abuse of power 374–6
anomalous status of 365–6
complex position of 345–6
Conseil Supérieur de la Magistrature (CSM) 50, 67, 366–7, 379
constitutional power to appoint/promote/transfer/discipline 366–8, 376
dictatorship era 360
European human rights system, influence of 378, 380
executive interference 371
executive power of instructions and recommendations 370, 375
fair trial rights 378
financial/logistical resources, executive control of 368–9
French civil law tradition 359
French reforms 371–3
functions of 363–5, 377
‘high profile cases’, prosecution of 379
historical origins of the French model 360–3
independence of office 361, 375
inquisitorial systems 346
interest rei publicae ne maleficia remaneant impunita, rule 360
judicial officers, trend to recruit early 369
judicial role of 377, 378
judicial system/organization, French model 362
judiciary, independence of 367
judiciary, relations with/independence from 376–80
juge d’instruction 364
legality of prosecution, principle of 365
magistrate 369
Magistrature 370, 376
mediation of sentences 365
Ministère Public 360, 362–4, 368, 370, 374, 376
Ministry of Justice, subordination to 368–76
multiple executive hierarchical systems, control by 369, 370
non-lieu 362
preliminary investigations 363
premier magistrate 369
procuralores 360
Procureur Général 364, 377
reform of system 381
régalienne 364
sharing functions 364, 365
subordination culture to executive 369
training 377–8
weakness of model 380–1
public prosecutor, Lusophone Africa
Angola 166
Cape Verde 166
generally 166–7
Guinea-Bissau 166
Mozambique 167
Príncipe 167
São Tomé 167
(p. 413) Public Protector
Nklanda scandal 332
South Africa 50, 327, 329, 336, 367
Public Service Commission
accountability function 103, 327
constitutional entrenchment 327–8
constitutional organ, as 315
Ghana 103
Kenya 295
Namibia 103
quasi-judicial role 76
South Africa 335
quasi-judical bodies
Ethiopian cases 279–82
examples of 278–9 see also ouster clauses
régalienne
public prosecutor, role in Francophone Africa 364
religious influences
blasphemy, prohibition of 31
constitutional provisions 30
freedom of worship 33
Islamic law 30–3
jihadist groups 30
Muslim Brotherhood 31
sharia law 30, 33
women, constitutional rights 31, 33
repugnancy test 34
responsibility
executive 114
individual and collective ministerial 71
rule of law
advancement of 298
Angola 182, 186, 187, 188–9
civil law tradition and 88
concentration of powers and 58
contemporary constitutions and 97
courts, independence of 74
Ethiopia 265, 272, 279, 281, 283
Ghanaian judicial/executive relations 229
hybrid institutions, role of 90
independent judiciary as guardian of 294
Kenyan judicial/executive relations 288, 294, 296, 297, 298
legislative/executive relations and 147, 149–50
Lusophone Africa 168, 169–70, 173
military culture and 150, 151
Namibia and 306
Nigerian judicial/executive relations 245, 259
non-adherence to 149–50
public prosecutions, Anglophone Africa 350–3, 356, 358
public prosecutions, Francophone Africa 371, 381
respect for 89, 101, 124, 146, 149, 343
threat to 297, 310
Uganda 211
Zimbabwe 209
Rwanda 17, 38, 49, 82, 341
Sadat, President 208
same-sex marriage 389 see also LGBTI rights and homosexuals
São Tomé, Democratic Republic of
judiciary/executive relations see São Tomé, judicial/executive relations
socialist-styled constitution 26
São Tomé, judicial/executive relations
Attorney General 179
constitution, Portuguese influence 161–2
courts, independence of 171–3, 176
judicial appointment 179
judiciary, subordinate in political system 168
National Assembly 179
pardon/commute sentences, power to 179
power, distribution of 167
rule of law, constitutionally based 170
separation of power, constitutionally based 170 see also Lusophone Africa, judicial/executive relations
scientific socialism 19, 26, 27
Senate, by country
Nigeria 135, 137, 142–4, 246, 252, 260, 347
United States 62, 63, 118
Senegal
constitution, Muslim influence 30
executive/judicial relations see Francophone Africa, executive/judicial relations
executive/legislative relations see Francophone Africa, executive/legislative relations
francophone influence 82, 83
judicial/legislative relations see Francophone Africa, judicial/legislative relations
multi-partyism 18
public prosecutor 364, 365, 366, 368, 370, 371, 372, 376, 377, 381
traditional dispute settlement system 35
separation of powers, Anglophone Africa
Anglo-American influence 69
judicial/executive branches 73–8
judicial/legislative branches 78–81
legislative/executive branches 70–3
separation of powers, doctrine of
abuse of power, prevention of 58, 269
accountability 69, 359
American presidential system 62–4
Angolan 187–9
British parliamentary system 64–6
checks and balances see checks and balances
constitutional legitimacy 385–91
critical aspects of 58, 59, 67–9
entrenched in post-1990 constitutions 58, 89
hybrid institutions 342–3
Locke, John 59, 60, 88, 392
Lusophone Africa 169–70
models of 61–2
Montesquieu 59, 60, 63, 66, 269
negative perception of 9, 392, 393–4
origins and nature of 59–61
(p. 414) political despotism, prevention of 269, 392
political question doctrine 394–5
‘pure’ theory of 60–1, 62
socio-economic rights and 392–4
triad division of power 59
tyranny, prevention of 58, 61, 89, 68, 330, 386, 392
separation of powers, Francophone Africa
French hybrid model 62, 66–7
French influence 82
judicial/executive branches 85–7
judicial/legislative branches 87–8
legislative/executive branches 82–5
sharia law 30–3
Sierra Leone
anti-corruption agencies 331
Attorney-General 347
public prosecutor 347
socialism
dependence on capitalism 25–6
socialist-styled constitutions
African socialism 25
Benin 29
communism 25, 26, 27
developmental formulation 26
doctrinaire socialism 25, 26
human rights and 27–8
language/style influence 26
Marxist–Leninist influences 25
ruling party, entrenchment of role 27
scientific socialism 26
single-party system 27
social transformation, designed for 25
whole society 26
socio-economic rights 392–4
sodomy 317
Sokoto state governorship 248–50
Somalia
Al-Shabaab and 31
new constitution 22
public administration collapse 197
third generation of constitution-building 22
traditional institutions 40–1, 197–8
South Africa
Attorney General 73
bill of rights 39, 302, 306, 338
‘cadre deployment’ 332
constitutionalism 219
corruption 330
death penalty 219
hybrid institutions 327, 329, 332–5
judicial appointments 73
judicial/executive relations 74, 77, 211–12
judicial rulings, acceptance of 219
judicial subordination to survival 211–12
legislative/executive interaction see South African legislative/executive interaction
lesbian, gay bisexual, transgender, and intersex (LGBTI) equality 219
liberation movements 200, 201
National Assembly 70, 74, 76, 78, 102, 108, 110, 112–13, 335
National Director of Public Prosecutions 104, 348
prerogative of mercy 75
revolutionary constitutionalism 388
same-sex marriage 389
socio-economic rights 392, 393–4
transparency, promotion of 50
South African legislative/executive interaction
cabinet members, appointment of 106
censure by parliament 108
executive action, confirmation of 108
executive responsibilities 107
parliament, democratic composition of 110
patterns of interaction 112–13
presidential assent to laws 111
presidents 101–2, 104
presidents as supreme executives 103
separation of powers 70
South West Africa National Union (SWANU) 300, 301
South West Africa People’s Organisation (SWAPO) 300, 301, 302, 304, 306, 307, 388
speakers 111
state of emergency
power to declare, in Kenya 124
power to declare, in Nigeria 144–5, 262
Sudan 22, 40, 385
super-presidentialism
Angolan 189–201
constitution-making process, road to a democratic 184–7
constitutional principles 188
constitutional reforms 184
constitutional status, pre-independence 182–4
dual vote, obligatory 189–91
multi-party democracy 184
presidential absolutism 191–201
rule of law, constitutional and democratic 188–9
separation of powers 187–9
Swaziland
absolute monarchy 37
constitutionalism and 37
duties 45
religion, constitutional provision 30
traditional rulers, constitutional recognition 36
‘third wave’ of democratization 20–2
traditional courts 34–5, 36, 37, 38, 40
traditional institutions 36, 37, 40
traditional rulers 33–7, 40
‘traditionalists’ 35–6
transparency
Anglophone constitutions 50
enforcement of 146–7
hybrid institutions 59, 333, 336
public office appointments 296
public prosecutor 358, 359, 382
separation of powers and 68–9, 90, 141
tribalism
multi-partyism and 19
Tunisia
Arab uprisings 30
constitution of 22
dictators 22
hybrid institutions 51, 328
(p. 415) Islam, influence on constitution 31–3
socialist influence 26
tutela
Colombia and 214
tyranny, prevention of
separation of powers 61, 89, 330, 386, 392
Tunisian constitution 29
ubuntu, concept of 38–9
Uganda
Attorney-General 347
judicial/executive relationship 210–11
rule of law 211
UNITA (União Nacional para a Independência Total de Angola) 184, 186, 193, 309, 310
United Kingdom
Attorney-General 347–8, 350, 352–4, 357
Director of Public Prosecutions 354
judicial review of prosecutorial decisions 353–6 see also British parliamentary system
US Constitution 60, 62, 63, 64, 99, 100, 104, 141, 386, 395–6
Victims’ Code 357
virtuous alignment 207, 216–21, 222
war
power to declare 141, 144–5, 190
War on Terror 64
watchdog
function of parliament 98
institutions 50, 325
legislature 148
Western Sahara 47
Westminster constitutional system
Anglophone Africa and 2–3, 24, 95, 111
Botswana 69
common law tradition 52
constitutional institutions 95
dualism 114
Kenya 116
legislative/executive interaction 109, 111, 114
monism 99
presidents and 100, 196
prime-ministerial model 101, 107
separation of power model 62
South Africa 200
written constitution, absence of 98
women
constitutional rights of 31
customary law and 38
Islam and 33
Kenyan National Assembly 110
youth
customary law and 38
Zambia
Attorney-General/DPP tensions 347
customary law 38
traditional courts 35
Zimbabwe
abuse of power, constitutional provisions 71–2
anti-corruption agencies 331
Attorney-General 73, 209
constitution 22, 49, 69
court packing 391
customary law 38
duties 45
homosexuals 317
hybrid institutions 50, 326, 328, 333, 337, 342
‘independent commissions supporting democracy’ 326, 328
international law 43
judicial/executive relations 76, 209–10
judiciary/legislative, separation of powers 81
judicial appointments 73
judiciary, independence of 50
judiciary, political interference protection 74
judiciary, politicized by government 209–10
legislative/executive, separation of powers 70
‘peoples’ rights’ 44
prerogative of mercy 75
religion, constitutional provision 30
rule of law 209
traditional chiefs 37
traditional courts 36, 38
Zuma, President 329, 332, 338, 348