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.


Judicial Review and Presidential Elections in Africa

The popular election of presidents is one of the hallmarks of democracy in many presidential systems. But increasingly, as elsewhere, courts in Africa have been called upon to decide on the validity of elections and election results. In 2017, the Supreme Court of Kenya nullified the presidential election result when incumbent President Uhuru Kenyatta was declared the winner. In 2020, the Supreme Court of Malawi also affirmed the nullification of a presidential election decided by the High Court. There are also several cases where courts affirmed a contested presidential election, for example, in Ghana, Namibia, Zambia, and Zimbabwe, just to mention a few. In addition, in several cases courts have struck down electoral petitions on procedural grounds, without considering the merits. This paper will explore and examine three interrelated themes related to the judicial review of presidential elections in Africa. First, on what grounds do courts determine presidential election disputes? Second, how does the court’s “idea of democracy” build on and/or depart from the “law of democracy”? Third, what is the implication of judicial review of presidential elections for constitutionalism and democratic consolidation in the region? The paper concludes by suggesting that a dynamic judicial doctrine is necessary for adjudication of presidential election disputes for both the self-preservation of the judiciary and the maintenance of political and institutional stability necessary for sustainable constitutional democracy.

Constitutional Courts in time of Conflict: Examples from North Africa

Over the past decade, Arab constitutional courts dealt with a number of politically divisive questions in a context of crisis and conflict. They ruled on unconstitutional changes of government, governments’ competing claims for legitimacy, and issues of constitution-making. This paper examines three landmark cases from Egypt, Libya and Mauritania: The Egyptian Supreme Constitutional Court’s approach toward the military coup of 2013; The Libyan Supreme Court Constitutional Chamber’s ruling dissolving the elected parliament in November 2014 which paved the way for competing claims for legitimacy by two rival governments; The Mauritanian conseil constitutional rulings on the military coup of August 2008. While examining these cases the paper elaborates on the factors that determined the courts’ activism or self-restraint; their interpretive methods; implications of the courts’ rulings; and issues of enforcement and compliance. In concluding, the paper draws some tentative conclusions and lessons for the future of constitutional justice in the respective countries.