Same same but different: Unconstitutional Constitutional Amendment Review in Anglophone (Kenya) and Francophone (Benin) Africa (working title)

Courts as guardians of the constitution are mandated to uphold the constitutional integrity and to advance constitutionalism. Their task as constituted powers is to operate within the frame designed by the constituent power. At times, the line between actively guarding the constitution and re-drafting the constitutional text is thin, especially if the judicial adventurism serves a potentially legitimate purpose. In Benin and Kenya, the respective courts have tested this line in their struggle against attempts by the political elite to effect opportunistic constitutional amendments. The countries have different approaches to constitutional review, drawn from the legal culture of their colonizers (civil law/common law) and their courts have creatively interpreted and applied the ‘unconstitutional constitutional amendment’ concept accordingly.[1] To oversimplify: the Constitutional Court in Benin extended the eternity clause, while the High Court in Kenya made the procedural requirements for constitutional amendments regarding certain matters more onerous than the constitution demanded. In putting themselves above the explicit wording of the constitution, they transformed themselves from constituted guardians to the constitution making power. Despite the different legal culture, the justification for their overly creative activities were very similar, rooted in their experiences under which the recent constitutions were drafted. The paper will introduce, analyze, and compare both the different approaches of both countries to the ‘unconstitutional constitutional amendment concept’ and its application by the courts.