1.  Introduction

A recent history by Mark Massoud of the development of Sudanese law over the past decades records the author’s meeting with a respected Sudanese lawyer: ‘Law in Sudan?’ the lawyer asks, ‘Really? Your book will be a very short one!’¹

Yet, law is everywhere, as Massoud rightly points out,² and this volume confirms this. Each new regime, whatever its ideological pedigree, has to take a stance on the existing legal system and must reform and transform it to better achieve its goals. Military rulers are no exception in this regard and courts don’t usually stop working even in times of turmoil; indeed, as Ginsburg and Moustafa have demonstrated, courts often fulfil important functions even in authoritarian regimes.³ Whether they defer or stride ahead and make bold expansive decisions—sometimes successfully as in Ghana,⁴ sometimes less so as in Nigeria,⁵ to take two examples from this book—their presence indicates that law matters. And more than that: In the last two decades, African countries have undergone a new round of constitution-making, in many cases combined with a return to civilian and democratic forms of governance—going hand in hand with their international commitment under the auspices of the African Union to take action against ‘unconstitutional changes of government’.⁶ Constitutionalism is therefore increasingly taken seriously by African states and societies, in line with the international trend.

This volume focuses on the separation of powers in African systems. The conclusions of the individual authors, it seems fair to say, are often cautiously optimistic: problems remain, but in many African states things have improved. At the end of this volume, it therefore seems appropriate to take a step back and take a look at the picture Page Id: 385ReferencesConstitutive Act of the African Union (African Union) 2158 UNTS 3, UNTS Reg No I-37733, OAU Doc CAB/LEG/23.15 OXIO(p. 386) painted here from a broader comparative perspective. The question (foreshadowing the theme of the next volume) is then: What types of constitutional regimes do we see emerging in African states over the last two decades and what does this mean for constitutional courts in particular?

This conclusion can, of course, not provide a comprehensive answer to this question, which would require a monograph of its own. I therefore confine myself here to making two preliminary observations. The first concerns the role of constitutions as safeguards against past ‘regimes of horror’ (Scheppele)⁷ in the countries of sub-Saharan Africa and its consequences for the authority of constitutional courts⁸ in these countries. This comes, secondly, with a particular, very traditional conception of separation of powers as a device for preventing tyranny; and there are reasons to consider this conception as problematic.

Neither of these two observations is particularly surprising, once we think about it. More than anything else, the ghost of previous dictatorships today haunts African constitutionalism and those who write about it here. As Charles Fombad observes, contemporary African constitutions appear first and foremost as tools to

free the state and the people from the authoritarian and repressive logic of the colonial state which post-independence leaders perpetuated in order to maintain, like the colonial authorities did, a firm grip over everything and everybody within the state.⁹

The consequences of this understanding of African constitutionalism remain to be tested.

2.  Constitutional Legitimacy Revisited

Constitutions designed to guard against the return of past mistakes are not unique to Africa. In fact, most constitutions share the impulse to improve—otherwise, why enact a new constitution? From the US constitution, to the German Basic Law and the French Fifth Republic, to the constitutions drafted in Eastern Europe and Latin America in the 1980s and 1990s, there is an element in many constitutions currently in force of seeking to avoid past mistakes and setting out a new path for state and society. Yet the need for change can be more or less urgent and the change contemplated more or less comprehensive.

A number of factors influence the importance of a constitution in shaping state and society; amongst them are the magnitude of the historical evils experienced (with Germany at one end of the spectrum and South Africa somewhere close to it), but also the strength of the commitment to change in the population and amongst elites. The paradigmatic case for strong public entrenchment is revolutionary constitutionalism, (p. 387) which Stephen Gardbaum defines as the use of a ‘constitution-making process to attempt to institutionalize and bring to a successful conclusion a political revolution’.¹⁰ Given the strong presence of US concepts and constitutional history in African legal developments, as the repeated references in this volume reflect (see more below), it is important to take a closer look at revolutionary constitutionalism as a potential explanatory category in the African context. Key to revolutionary constitutionalism (at least in its US-influenced form)¹¹ is its insider–outsider dynamic to which Bruce Ackerman’s recent work points:¹² A movement of revolutionary outsiders who are initially not part of the ruling elites mobilizes against the existing regime, overcomes internal resistance and takes power, and in doing so lays down its vision for a better state and society in a constitution.

African constitutions have historically often emerged out of successful uprisings, and in Ackerman’s and Gardbaum’s taxonomy: revolutions,¹³ against the former colonial powers. Though many of them installed constitutions that adopted large parts of their colonial legal heritage, the change was nevertheless momentous. However, many post-independence constitutions were not successful in creating constitutionalism. Leaders of the former revolutionary movements often turned out not to want to restrain themselves in the legalistic corset of a constitution—after all, they themselves had succeeded in the revolution against the former colonial masters, and wished to exercise that hard-won authority. Sometimes they encountered resistance, however, and in response some African countries adopted new constitutions, often strengthening the executive. As this era ushered in some of the worst dictatorships on the globe, the third round of African constitution-making sought to end this trend and re-install multi-party democracies in African countries. The change sought was significant and often propelled by pressure of social movements on the governing elites. Yet, to a large degree, existing elites weren’t exchanged in this process and the typical insider–outsider dynamic of revolutionary constitutionalism with outsiders taking away power from insider elites was therefore absent. While a number of North African countries in the wake of the Arab Spring have taken the path of revolutionary constitutionalism,¹⁴ most sub-Saharan African constitutions since the 1980s have instead emerged out of a mix of insider reforms, internal and external political pressure, and elite construction.

An important exception seems to be the South African transition whose revolutionary basis Francois Venter may underestimate.¹⁵ Though the South African constitution (p. 388) was based on the interim constitution negotiated between the National Party (NP) and the African National Congress (ANC), we know now that the ANC’s commitment to constitutionalism was both more principled than strategic and also that it was, in nearly all respects, successful in its endeavour.¹⁶ This suggests that it may be more appropriate to treat South Africa as a genuine case of revolutionary constitutionalism than merely a negotiated transition.¹⁷ Here then, a revolutionary movement decided to entrench its revolutionary principles in a constitution, protected by a newly created constitutional court in a new state headed by the former revolutionaries (and soon without any participation by the NP, the former insiders). Yet, the South African case is rather unusual in this regard in sub-Saharan Africa.

Though public participation played a significant role in a number of recent African constitutions including the Kenyan and Benin constitutional processes, their insider–outsider dynamic is very different to the South African case.¹⁸ In most places, old (insider) elites have stayed on. Even where constitutions have been enacted after the death or removal of a previous authoritarian ruler, those who have given the impetus have more often than not been part of the old regime. Unsurprisingly, democratic elections in these countries routinely feature the reappearance of former military rulers as new democratic leaders. The recent Nigerian elections are a case in point, but other cases where former military leaders have stayed on or indeed consolidated power under new constitutions include countries as different as Ghana and Angola.¹⁹ And even in Namibia, whose history is closely linked to South Africa’s, the story unfolds somewhat differently: Though revolutionary outsiders, the resistance movement against South African occupation, the South West African Peoples’ Organisation (SWAPO), came to power after considerable foreign intervention and a freely elected Constituent Assembly was responsible for the drafting of the Namibian constitution, that constitution was heavily based on the 1982 Constitutional Principles, proposed by UN diplomat Martti Ahtisaari to the different parties in the conflict and never put to a referendum.²⁰ As a result, the new Namibian constitution is in important respects a product of international elites and as such not to the same degree rooted in the revolutionary commitment to a new society as the South African constitution.

(p. 389) These different pathways to constitutionalism influence the legitimacy of constitutional courts. The Namibian story illustrates the problems of ‘authenticity’²¹ a constitutional court can encounter, when it is asked to enforce a constitution, which is largely the product of elites, in a counter-majoritarian fashion. This becomes especially clear in the Namibian Supreme Court’s judgment in the Frank case where it was asked to strike down a deportation order for Ms Frank who was in a lesbian relationship with a Namibian woman.²² Ms Frank argued that she would have been able to marry her Namibian partner and thereby acquire a right to stay in the country if she were a man and that she should therefore enjoy the same protection under immigration law. As Nico Horn points out, there were good reasons to think her claim was well-founded as a matter of law:²³ While the Namibian constitution does not explicitly protect sexual orientation as a prohibited ground for discrimination, other important statutes at the time did and much suggested that the constitution drafters did not intentionally exclude sexual orientation from the constitutional list. Yet, the Namibian Supreme Court declined to protect Ms Frank and upheld the deportation order. What is remarkable about the decision, however, is not so much the fact that the Court did not protect Ms Frank in the context of strong political rhetoric against homosexuals, but its particular reasoning in doing so. It emphasized the key role of parliament under the Namibian constitution and invoked the customs and beliefs of the Namibian people:

[T]he Namibian courts have from the very beginning determined that in interpreting and applying the fundamental rights in Namibia, the value judgment that it has to make must take cognisance in the first place of the traditions, values, aspirations, expectations and sensitivities of the people of Namibia. There can be no doubt about the need to apply this principle of interpretation in Namibia. A refusal or failure to do so, would strengthen the perception that the Courts are imposing foreign values on the Namibian people. This will bring the Courts as well as the Constitution into disrepute and undermine the positive role it has played in the past and must continue to play in the future in regard to the maintenance and development of democratic values and fundamental human rights.

An explicit comparison with the South African constitution precedes this passage, which, so the Justices argue, assumes a different, considerably stronger status. Whatever the merits of this line of argument, the explicit comparison to South Africa makes it clear that the Namibian Justices understand their own authority more weakly than do their South African colleagues—as the comparison with the later South African litigation on same-sex marriage and its court’s rather bolder conception of the judicial role confirms.²⁴

Page Id: 389ReferencesChairperson of the Immigration Selection Board v Frank and Khaxas, Case No SA 8/99, [2001] NASC 1, 2001 NR 107 (SCA), 5th March 2001, Namibia; Supreme CourtFourie and Bonthuys v Minister of Home Affairs and Director General of Home Affairs, Judgment, Case No 232/2003, [2004] ZASCA 132, [2005] 1 All SA 273 (SCA), 2005 (3) SA 429 (SCA), 2005 (3) BCLR 241 (SCA), 30th November 2004, South Africa; Supreme Court of Appeal [SCA]Minister of Home Affairs and Director General of Home Affairs v Fourie and Bonthuys, Application for leave to appeal, appeal, and cross-appeal, Case CCT 60/04, [2005] ZACC 19, [2005] ZACC 20, ILDC 282 (ZA 2005), 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC), 1st December 2005, South Africa; Constitutional Court [CC] ILDC(p. 390) Unsurprisingly, the past decades of authoritarian rule and human rights abuses largely rule out another traditional path to constitutionalism described by Ackerman, the path of insider reforms, which nevertheless preserve key achievements and traditions of the past.²⁵ For even where insiders have stayed on and enacted reforms, this hasn’t been accompanied by the urge to preserve long-lived traditions along the lines of the British constitutional conventions or entrenched principles of common law. Insofar as old principles are preserved and still applied, this represents more of an acknowledgment of certain established international standards, sometimes accompanied by appeals to take these more seriously, rather than a celebration of a tradition that has truly become one’s own.

However, the turn against the past can itself serve as a powerful basis for constitutional legitimacy and the authority of constitutional courts, even in the absence of a revolutionary shift of the sort described earlier.²⁶ And this, too, casts courts in a particular role: Not as guardians of the revolutionary principles adopted by the mobilized people, but as guardians against a shared grievous past or, as Kim Scheppele has called this, against past ‘regimes of horror’.²⁷ This turn against the past can of course, as noted above, be reinforced by other factors. But again, such other factors are not limited to its reinforcement through revolutionary mass movements akin to what has happened in the United States. Nor does such a lack of a grounding of African constitutions in revolutionary mass movements imply that there can be no basis for constitutional supremacy in popular sovereignty. A number of African states such as Benin or Kenya, and to a lesser extent Ghana, have drafted constitutions with broad public participation and submitted them to referenda, thus using popular sovereignty to further entrench the constitutional appeal for change.²⁸ This can matter for the authority of constitutional courts in these systems.

Much suggests, for example, that Benin’s Constitutional Court, one of the most successful courts on the continent, can build its authority on its constitution’s strong and publicly entrenched stance against past dictatorships and oppression. Besides developing a significant human rights record, the Constitutional Court of Benin has declared attempts to revise the constitution so as to allow the incumbent president Yayi to stand for a third term, as well as public calls for the president to do so, as unconstitutional.²⁹ Invoking the preamble to Benin’s constitution and its explicit Page Id: 390ReferencesDossa, Decision No DCC 14-156, 19th August 2014, Benin; Constitutional CourtHouenou and Ahouandogbo, Decision No DCC 14-199, 20th November 2014, Benin; Constitutional CourtPresident of Benin, Decision No DCC 11-067, 20th October 2011, Benin; Constitutional Court(p. 391) opposition to arbitrary personal rule and dictatorship, in limiting constitutional amendments the Court adopted a conception akin to a ‘militant democracy’³⁰—a bold step for any constitutional court and a successful one in Benin: As of July 2015, it seems that President Yayi has indeed renounced his claims to stand for a third term.

The Ghanaian Court’s decision to invalidate the declaration of a public holiday for the celebration of the 1981 coup by Jerry Rawlings provides another example for the role courts can play as guardians against past dictatorships.³¹ Invoking the new constitution’s explicit turn towards constitutionalism and its incompatibility and break with past military rule, the Ghanaian Court could make a powerful argument for the invalidation of a national holiday celebrating the coup—otherwise hardly a subject that invites expansive judicial oversight. As a result, the government did not dare to challenge the Court on this important matter of political symbolism.

And Kenyan courts, too, have occasionally taken the high road of preventing the repetition of past mistakes the new Kenyan constitution explicitly seeks to avoid. The widely discussed decision of the High Court at Nairobi to disqualify Mumo Matemu from his appointment as Chairman of the Ethics and Anti-Corruption Commission (EACC) on grounds of personal integrity reads along these lines. Drawing on the 2010 Kenyan constitution’s explicit turn against corruption (‘ … Kenyans were singularly desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern us or hold public office’),³² the High Court invalidated the appointment of Matemu. Though this decision was not upheld on appeal, the matter went to the Supreme Court and the public attention attracted by the case eventually led to the resignation of Matemu from the appointment. This, too, represents judicial success.

But, and this is of course not surprising, in other cases and other courts the basis for judicial authority will be less strong. Threats and backlash against courts that take decisions uncomfortable for those in power are still a real possibility in many African states, as we see in events ranging from court packing in Zimbabwe to rhetorical attacks on individual judges in Namibia and the ousting of jurisdiction in favour of other institutions in Ethiopia to the straightforward defiance of certain judgments in Nigeria.³³ Whatever their differences, these countries share a lack of a strong independent basis for constitutional authority.

Page Id: 391ReferencesNew Patriotic Party v Attorney General, [1993-1994] 2 GLR 35, Ghana; Supreme CourtTrusted Society of Human Rights Alliance v Attorney General of Kenya and ors, Petition 229 of 2012, [2012] eKLR, 20th September 2012, Kenya; Nairobi; High Court(p. 392) 3.  Separation of Powers and Socio-economic Rights

As we attempt to better understand constitutional legitimacy in Africa, it is also important to pay attention to the precise things current African constitutions are entrenching, which courts can therefore claim special authority to enforce. In this regard, it is important to note that nearly all authors in this volume understand the separation of powers primarily as a tool of restraint, checking powerful executives and ultimately preventing abuse of power and tyranny: ‘Its main goal, the prevention of tyranny, is as potent today as it was many centuries ago’ concludes Fombad in Chapter 2.³⁴ That the separation of powers must be understood in this traditional, reactive way, however, is not a foregone conclusion—another prominent understanding of that concept, as it emerges in nineteenth-century German constitutionalism³⁵ for example or as a consideration in Locke’s famous early conception of separation of powers,³⁶ is the rational ordering of the state and ultimately governmental efficiency.

This negative conception of separation of powers influences what and how much courts can do.³⁷ As we have seen, the strong focus on restraining concentrations of executive power and preventing dictatorships makes claims to third presidential terms or the celebration of military coups particularly appropriate subjects for quite expansive judicial intervention, and the same might apply to the strengthening of executive power in other contexts. This firm core of what constitutions are for does not, however, necessarily encompass the much more comprehensive set of rights many African constitutions today incorporate, and this seems important.

The inclusion of second- and third-generation rights has generally become a hallmark of African constitutionalism in the recent decades. Not only internationally renowned constitutions like the South African constitution incorporate long lists of socio-economic rights, but so do the African Charter of Human and Peoples’ Rights and many other African constitutions such as the Ghanaian and the Kenyan constitutions, both of which include a considerable list of positive, social rights. Moreover, even if explicit social rights are not mentioned in the text, there is often a catalogue of directive principles such as in the Nigerian constitution, which have served in other jurisdictions around the world, such as Germany³⁸ or India,³⁹ as a basis for expansive Page Id: 392ReferencesHartz IV, 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09, BVerfGE 125, 175, NJW 2010, 505, NZS 2010, 270, DVBl 2010, 314, DÖV 2010, 324, NVwZ 2010, 580 (Ls), 9th February 2010, Germany; Constitutional Court [BVerfG](p. 393) judicial action and the judicial enforcement of socio-economic interests. This fits into a broader global trend towards an understanding of constitutions as ‘transformative’ or ‘post-liberal’,⁴⁰ in other words as tools for broader social changes, going beyond the traditional model of Western constitutionalism, represented most famously in the nineteenth-century US understanding of constitutionalism and the separation of powers as tools to prevent a concentration of powers and protect individual freedom (understood in negative, formal terms).⁴¹

The prevailing negative or traditional understanding of separation of powers in this volume therefore ill fits this broader, aspirational character of many African constitutions. Of course, the broken promises of many authoritarian rulers in the past and their failure to deliver on them have painfully demonstrated that unified executive power is no road to economic success, and some may invoke Amartya Sen’s famous, if contested claim that famines do not happen in democracies.⁴² The strong suspicion directed towards powerful presidents hence makes sense not only to those who view government as a threat to freedom, but equally to those who seek a state which has the power to efficiently pursue social and economic change. Yet, accepting this does not necessarily imply a turn to the purely negative conception of separation of powers prevalent in this volume. The adoption of broad, aspirational constitutions in many African states suggests that we may need to pay more attention to efficiency and good organization rather than merely avoiding concentrations of power, particularly in the executive branch. Such a more positive understanding of the separation of powers would then not only address the question what must not be done under any circumstances, in particular by the executive, but also what governments must do and how they might realistically go about achieving it. The principle of separation of powers would then less be a device to draw boundaries between state and individual than a guideline for governments (including the executive) on how to build a new state.

As it is, the prevailing negative conception of powers suggests that courts may have a harder time justifying judicial action in safeguarding socio-economic rights than with regard to more classic civil political rights and when it comes to policing executive power. Yet, much will depend on the political context, both at the time of constitutional drafting and when courts have to adjudicate claims. The South African case demonstrates that socio-economic rights may well be part of a strong public consensus about what constitutionalism must mean, too, and that socio-economic rights are not necessarily lesser rights.⁴³ Yet, where judicial authority is weaker and such rights less entrenched such as in Nigeria, courts tend to do much less.⁴⁴ It thus remains to be seen (p. 394) how aggressively African courts will come to enforce their transformative constitutions—the trend is clearly going in the direction of stronger judicial involvement, but setbacks are to be expected and in many states recovering from past dictatorships, socio-economic rights may not yet be at the forefront of what courts are publicly expected to be doing. Still, examples like India suggest that this could change rapidly.⁴⁵

4. A  Political Question Doctrine?

In line with the international development, one example for the increasing rise of judicial power is the trend in African courts towards the rejection of a political question doctrine. While some in Kenya or Nigeria still advocate the use of a political question doctrine,⁴⁶ the concept has become increasingly contested. Already in 1993, the Ghanaian Supreme Court rejected its application in its above-mentioned case on the declaration of a public holiday: ‘ … by articles 1 and 2 of the Constitution, 1992, that doctrine cannot have any application to us here in Ghana.’⁴⁷ Similarly, the South African Constitutional Court has so far not explicitly applied a political question doctrine and former Constitutional Court Justice, Ackerman J, has publicly argued against its adoption on the grounds that ‘[i]n a substantive constitutional state such as ours, there can be no so-called “political question” doctrine leading to a conclusion different to that dictated by the Constitution’.⁴⁸

There are some reasons to consider this disappearance of the political question doctrine not as an unequivocal progress, at least insofar as it represents a lack of attention to doctrines of judicial deference that are not merely about cowardice or politically prudent retreat. As James Fowkes points out, constitutional courts are often dependent on the support of other actors if they want to achieve real change and there are therefore good arguments for a more coordinated, dialogic understanding of executive/legislative–judicial relations in Africa.⁴⁹ If one adopts this view, much suggests that there is a need for a jurisprudential tool that enables courts to take a principled stance on the question in which areas and when they should defer to other institutions. This does not have to take the form of the political question doctrine in its classical form, in the sense of exempting certain questions entirely from judicial scrutiny, but could entail softer standards for more lenient or exceptional (rather than no) judicial control. What matters is that there is a recognized set of arguments and the political question doctrine in its classical form is one standard tool in this regard. Abandoning the doctrine is therefore troublesome as long as it is not accompanied by the development of alternative standards of principled deference. The German case (p. 395) illustrates the consequences of rejecting a political question doctrine without replacing it by some other well-recognized set of arguments to assess when judicial deference is appropriate and when it is not: The German Constitutional Court decides largely on a case-by-case basis when deference is appropriate and often lacks convincing and well-established doctrinal concepts to justify what it is doing.⁵⁰

This is not only problematic in Germany with its powerful constitutional court. African courts in particular need a good sense of strategy if they are to build up and preserve their hard-won authority and make a real impact on society. But strategy without any theoretical legal underpinnings can endanger a court’s public standing: Adjusting their understanding of constitutional law to the political context and pressures of the moment makes courts look weak and unprincipled, even though good ‘situation-sense’⁵¹ is key not only to common law judging.⁵² A set of institutional principles when to exercise deference, such as a political question doctrine, therefore fulfil an important function by offering courts that play strategic games⁵³ publicly acceptable reasons for principled withdrawal and constitutional avoidance. In their best form, they can offer a set of institutional arguments that are not always part of the vocabulary of interpretation in ‘a substantive constitutional state’ because such considerations don’t naturally enter an interpretation of individual rights. And principled withdrawal not only looks better for courts seeking to preserve their public authority, it also can offer means to distinguish good reasons to defer to another branch from bad reasons. For all these reasons, African courts might want to be careful in discarding political question doctrines too readily where there is no other set of principled arguments for judicial deference in place.

5.  Final Remarks

Assessing constitutionalism in Africa remains therefore very much an unfinished task. As Francois Venter argues in his chapter, understanding African constitutionalism along the lines of the US and British models in many ways doesn’t fit the realities on the ground.⁵⁴ Yet, this should perhaps trouble us less. For one thing, it is not clear how useful US constitutionalism is as a model to aspire to and use as a point of comparison. Working constitutionalism is not predicated on the existence of a 200-year old document as hard to amend as the US constitution is nor on its grounding in a constitutional moment of heightened mass mobilization and public deliberation. Constitutions like the German Basic Law or the Canadian Charter lack a similar basis in a popular sovereignty and may still become, after some time, a basis for strong (p. 396) constitutionalism. This is not to say that public deliberation and participation in the drafting and confirmation per referendum are not good things that may help strengthen the public commitment to the constitutional commitments undertaken. They are; they are just not the only path to successful constitutionalism.

Furthermore, the value of the US constitution as a model and comparative counter-point for African countries seems increasingly doubtful for various reasons. Not only is the US constitution in many ways outdated and fails to provide guidance on such important features of modern democratic systems as political parties, it is also mired in a reactive conception of the federal state that understands itself primarily in terms of restraint on state power rather than a more comprehensive roadmap to a better society. This fits with the understanding of separation of powers of many of the authors represented in this volume, but it no longer fits with the forward-looking spirit of many African constitutional texts.

Something similar applies to the British or French systems, both of which are frequently referenced in this volume and African legal writing more broadly (as indeed holds for former colonies of other states such as Portugal). Though the colonial roots of most African states in British and French law continue to shape their understanding of law and the judicial role, both systems are in different ways idiosyncratic. The lack of a written constitution in Britain and the embeddedness of the French Conseil Constitutionnel in the very particular bureaucratic culture of French professional elites make both systems unusual; insofar as they work, this has much to do with their particular traditions and institutional cultures that have not always migrated well to their African colonies, as the discussion about the role of the public prosecutor in this volume demonstrates.⁵⁵ There are better examples to look at elsewhere for the kind of comprehensive conception of constitutionalism characteristic of many contemporary African constitutions. In particular South–South comparisons with countries such as India, Brazil, or Colombia as well as other African countries will therefore today often be more useful than yet another reference to Montesquieu, Madison, or the Federalist Papers. This volume only begins to lay the kind of foundation necessary for that work.