The Identity of the Constitutional Subject and the Construction of Constitutional Identity: Lessons from Africa

The identity of the constitutional subject has unique ties with constitutional identity. The existence of a “common African identity” has been used to imagine a continental constitutional system based on the values of human rights, democracy, and the rule of law. Although the identity of the constitutional subject helps to imagine a cosmopolitan constitutional identity at the continental level, it influences constitutional identity at the national level differently. In Ethiopia, its Constitution starts with “We the Nations, Nationalities, and Peoples” rather than “We the People”; in Nigeria, a constitutional theocracy co-exists with constitutional democracy; in Kenya, courts have used constitutional history as a foundation of their basic structure doctrine. Through these case studies, I will show how the identity of the constitutional subject helps to construct a constitutional identity and how this, in turn, impacts constitutional practice differently.