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Oxford Law Citator
Contents
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Preliminary Material
Stellenbosch Handbooks in African Constitutional Law Book One
Separation of Powers in African Constitutionalism
[No Title]
Acknowledgement
Stellenbosch Handbooks in African Constitutional Law
Preface
Contents
Table of Cases
Angola
Benin
Botswana
Ethiopia
Fiji
France
Germany
Ghana
India
Kenya
Namibia
Nigeria
South Africa
United Kingdom
United States of America
Zimbabwe
International Courts
International Criminal Court
International Court of Justice
European Court of Human Rights
African Commission
Table of Legislation
National Legislation
Algeria
Angola
Benin
Botswana
Burkina Faso
Burundi
Cameroon
Cape Verde
Democratic Republic of the Congo
Egypt
Ethiopia
France
Gabon
Gambia
Ghana
Guinea-Bissau
Kenya
Madagascar
Morocco
Mozambique
Namibia
Nigeria
Portugal
Säo Tomé and Príncipe
Senegal
South Africa
Soviet Union
Swaziland
Tunisia
Uganda
United Kingdom
United States of America
Zambia
Zimbabawe
International Treaties
List of Abbreviations
List of Contributors
Main Text
Introduction
Part I Overview
1 The Evolution of Modern African Constitutions: A Retrospective Perspective
1 Introduction
2 Generations of Constitution-building in Africa
3 Influences on African Constitutions
3.1 The colonial influence
3.2 Ideological influences
3.3 Religious influences
3.4 Indigenous influences
3.5 The impact of the process of internationalization
3.5.1 Internationalization at the global level
3.5.2 Internationalization at the regional level
4 Emerging Features and Trends
4.1 The colonial context as dominant influence
4.2 Distinctive features of the emerging common law and civil law constitutional traditions in Africa
5 Conclusion
Bibliography
2 An Overview of Separation of Powers under Modern African Constitutions
1 Introduction
2 Brief Overview of the Origins and Nature of the Doctrine
3 Models of Separation of Powers that Influenced African Approaches
3.1 The American presidential system
3.2 The British parliamentary system
3.3 The French hybrid
3.4 Some critical aspects of the doctrine of separation of powers and the impact of the diverse influences on Africa
4 The Anglo-American Influence in Anglophone Africa
4.1 The executive and legislative branches
4.2 The executive and judicial branches
4.3 The judicial and legislative branches
5 The French Influence in Francophone and Other Civilian Jurisdictions in Africa
5.1 The executive and legislative branches
5.2 The executive and judicial branches
5.3 The judicial and legislative branches
6 The Emergence of Hybrid Institutions Beyond the Traditional Triad
7 Conclusion
Bibliography
Part II The Relationship Between the Legislature and the Executive
3 Parliamentary Sovereignty or Presidential Imperialism?: The Difficulties in Identifying the Source of Constitutional Power from the Interaction Between Legislatures and Executives in Anglophone Africa
1 Introduction
2 The Reception of Constitutionalist Thinking in Anglophone Africa
3 Presidents
3.1 Powerful presidencies
3.2 Democratic legitimation of presidential power
3.3 Presidents as supreme executives
3.4 Is African presidentialism unique?
4 Executives
4.1 Appointment of cabinet members
4.2 Executive responsibilities
4.3 Confirmation of executive action
4.4 Government involvement in and censure by parliament
5 Parliaments
5.1 Democratic composition
5.2 Speakers
5.3 Presidential assent to laws
6 Patterns of Executive/Parliamentary Interaction
7 Conclusions
Bibliography
4 Kenya’s Budding Bicameralism and Legislative–Executive Relations
1 Introduction
2 The Kenyan and Comparative Context of Executive–Legislative Relations
3 The Executive and Legislature During Kenya’s Constitutional Review Process
4 The Constitutional Framework for the National Executive And Legislature
4.1 The national executive
4.2 The national legislature
5 Assessment of Executive–Legislative Relations in Kenya
5.1 The law-making process
5.2 Oversight of the executive
5.3 The budget-making process
6 Conclusion
Bibliography
5 Legislative–Executive Relations in Presidential Democracies: The Case of Nigeria
1 Introduction
2 Constitutional Roles of the Legislature and Executive
2.1 The legislature
2.2 The executive
3 Features of Nigeria’s Presidential System
4 Legislative–Executive Interaction
4.1 Power to make laws
4.2 Appointment of key political and judicial functionaries
4.3 Power to declare war or state of emergency
4.4 Powers to appropriate and authorize public expenditure
4.5 Enforcement of transparency and accountability
5 Causes of Legislative–Executive Conflicts
5.1 Unhealthy rivalry following from legislative oversight
5.2 Non-adherence to due process in the conduct of government business
5.3 Entrenched military culture
5.4 High-handedness of the executive over the legislature
6 Conclusion
Bibliography
Part III The Relationship Between the Judiciary and the Political Branches
6 An Overview of Judicial and Executive Relations in Lusophone Africa
1 Introduction
2 Historical Background and Framework Assumptions
2.1 The Persistent Influence of Portuguese Law in the Legal Orders of the Lusophone African States
2.2 The judiciary of Western origin versus the traditional mechanisms of conflict resolution
3 The Relations Between the Judiciary and the Executive in the Lusophone African States
3.1 Introduction
3.2 The proclamation of the rule of law and the principle of the separation of powers in the constitutions of the Lusophone African states
3.3 The proclamation of the independence of courts in the constitutions of the Lusophone African states
3.4 The guarantees of independence of the courts in the constitutions of the Lusophone African states
3.5 The appointment of judges to the High Courts, the Attorney-General, and members of the supervisory bodies of the judiciary in the constitutions of the Lusophone African states
3.6 The power to pardon and commute sentences in the constitutions of the Lusophone African states
4 Conclusions
Bibliography
7 Super-presidentialism in Angola and the Angolan Judiciary
1 Origins and Historical Development of the Constitution
1.1 Pre-independence constitutional status
1.2 The 1991/92 constitutional reforms (multi-party democracy)
1.3 The road to a democratic constitution-making process
2 Separation of Powers in the Constitution
2.1 Separation of powers
2.2 Constitutional principles
2.3 Constitutional and democratic rule of law
3 Super-presidentialism
3.1 Obligatory dual vote
3.2 Presidential absolutism
4 Conclusion
Bibliography
8 Relationships with Power: Re-imagining Judicial Roles in Africa
1 Introduction
2 Approach
3 From Subordination to Survival
4 From Survival to Supremacy
5 The Possibility of Virtuous Alignment
6 Conclusion
Bibliography
9 Defying Assumptions about the Nature of Power Relations Between the Executive and Judiciary: An Overview of Approaches to Judicial and Executive Relations in Ghana
1 Introduction
2 Brief Constitutional History of Ghana
3 Nature of the Relationships
3.1 Period of outright emasculation of the judiciary by the executive
3.2 Period of suspicion and minimal trust
3.3 Mutual toleration
3.4 Self-assertion of the judiciary
4 Conclusion
Bibliography
10 Judicial–Executive Relations in Nigeria’s Constitutional Development: Clear Patterns or Confusing Signals?
1 Introduction
2 Nigeria’s Constitutional History: A Brief Overview
3 Executive Power: Nature and Scope
3.1 Judicial power: nature and scope
3.2 Separation of powers: meaning and scope
4 The Judicial and Executive Branches: Relations Inter Se
4.1 Appointment, discipline, and removal of judges
4.2 The National Judicial Council
4.2.1 The NJC and the suspension of the President of the Court of Appeal
4.2.2 The NJC and the appointment of a State Chief Judge
4.2.3 Funding and other support for the judiciary
5 Judicial Response to Executive Action
5.1 Judicial response to the executive power of adaptive legislation
5.1.2 Judicial review of political questions?
5.1.3 Sensitive constitutional matters: a policy of avoidance?
6 Clear Patterns or Confusing Signals?
Bibliography
11 Relations Between the Legislature and the Judiciary in Ethiopia
1 Introduction
2 Historical Background
3 Separation of Powers in the Context of a Parliamentary System
4 Judicial Autonomy
4.1 Decisional independence
4.2 Legislative reversal of pending and final court judgments
4.3 Structural autonomy
4.4 Ouster clauses
5 Conclusion
Bibliography
12 Judicial–Executive Relations in Kenya Post-2010: The Emergence of Judicial Supremacy?
1 Introduction
2 Overview of Judicial–Executive Relations in Pre-2010 Kenya
3 Executive Power Over the Judicial Branch in the Post-2010 Dispensation
4 Judicial Oversight Over the Executive Branch in the Post-2010 Dispensation
5 Conclusion
Bibliography
13 An Overview of the Diverse Approaches to Judicial and Executive Relations: A Namibian Study of Four Cases
1 Introduction
2 The Time Between the Times: The Executive and the Judiciary During the Transitional Government for National Unity
2.1 Katofa: the first challenge for the interim government
2.2 Shifidi: oppressive South African legislation and the president
3 Namibia After Independence: Separation of Powers in the Namibian Constitution and an Independent Judiciary
4 The Executive and the Judiciary After Independence: The Difficult Cases
4.1 Conflict in the House: government and the judiciary
4.2 The independence of the Prosecutor-General vis-à-vis the Attorney-General
4.3 Interference by keeping the lower courts less than independent: the magistracy
4.4 Interference by executive statements
4 Conclusion
Bibliography
Part IV Independent Constitutional Institutions
14 The Role of Emerging Hybrid Institutions of Accountability in the Separation of Powers Scheme in Africa
1 Introduction
2 The Nature and Diverse Forms of Hybrid Institutions
3 Assessment of the Actual and Potential Role of the Hybrid Institutions in Enhancing Accountability
3.1 A critical review of the hybrid institutions
3.2 Enhancing the role of hybrid institutions
4 Conclusion
Bibliography
15 The Public Prosecutor and the Rule of Law in Anglophone Africa
1 Introduction
2 The Constitutional Setting of the Public Prosecutor
3 International Guidance
4 The Rule of Law and Public Prosecutions
4.1 The decision not to prosecute and nolle prosequi
4.2 How broad is the public interest test?
5 Judicial Review of Prosecutorial Decisions
6 Reasons, Guidelines, and Victims Appeals
7 Conclusion
Bibliography
16 Separation of Powers and the Position of the Public Prosecutor in Francophone Africa
1 Introduction
2 The Historical Origins and Evolution of the Public Prosecutor in France and Its Adoption in Francophone Africa
3 The Functions of the Public Prosecutor
4 The Anomalous Status of the Public Prosecutor: A Mix of Dependence and Independence
4.1 Relations with and independence from the executive
4.1.1 The constitutional power to appoint, promote, transfer, and discipline public prosecutors
4.1.2 The control exercised through subordination to the Ministry of Justice
4.2 Relations with and independence from the judiciary
5 Conclusion
Bibliography
17 Constitutional Legitimacy and the Separation of Powers: Looking Forward
1 Introduction
2 Constitutional Legitimacy Revisited
3 Separation of Powers and Socio-economic Rights
4. A Political Question Doctrine?
5 Final Remarks
Bibliography
Further Material
Index
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Table of Cases
Edited By: Charles M. Fombad
From:
Separation of Powers in African Constitutionalism
Edited By: Charles M. Fombad
Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Series:
Stellenbosch Handbooks In African Constitutional Law
Published in print:
03 March 2016
ISBN:
9780198759799
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