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Part IV Independent Constitutional Institutions, 17 Constitutional Legitimacy and the Separation of Powers: Looking Forward

Michaela Hailbronner

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 22 January 2021

This chapter takes a critical look at a number of the themes running through the book. It begins by arguing that the basis for constitutional legitimacy in many African states is tied to the turn against past ‘regimes of horror’, rather than rooted in strong expressions of popular sovereignty, but that this may well provide a sufficiently strong basis for judicial authority nevertheless. It also demonstrates how the strong concern with avoiding past mistakes influences African understandings of the separation of powers as a predominantly negative concept, designed to restrain state and in particular executive power, rather than to guide and steer it—in contrast to the broad aspirational provisions included in many African constitutions today. Finally, the chapter cautions against rejecting too readily political question doctrines where other principled arguments for judicial deference are lacking. The chapter concludes with a call for more South–South comparisons.

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