Marbury in Africa Judicial Review and The Challenge of Constitutionalism in Contemporary Africa

Marbury in Africa: Judicial Review and the
Challenge of Constitutionalism in
Contemporary Africa
H. Kwasi Prempeh*
I. INTRODUCTION.................................................................................2
II. THE FAILURE OF CONSTITUTIONALISM IN AFRICA BEFORE
THE 1990S ......................................................................................10
A. The (Un)Making of Constitutional Law in Early
Postcolonial Africa...............................................................12
B. The Search for Explanation .................................................18
C. The Colonial Legacy and the Politics of
Postcolonial Development ...................................................21
1. The Challenge of Nation Building and
Development................................................................21
2. The Colonial Legal Order in the Service of the
Postcolonial State.........................................................24
3. The Death of Constitutionalism in Africa...................28
III. PROSPECTS FOR CONSTITUTIONALISM IN CONTEMPORARY
AFRICA ...........................................................................................36
A. “Constitutions Without Constitutionalism”?......................40
1. A Case of African Exceptionalism?............................41
2. A New “Constitutional Moment” in Africa................42
3. The Tentative Record: Ghana’s Resurgence..............49
B. Reforming Authoritarian Politics Without
Reforming the State ..............................................................53
IV. THE PERILS OF JURIDICAL CONSTITUTIONALISM IN AFRICA ........57
A. Demand Side Challenges to Judicial Review in
Africa.....................................................................................58
B. The Supply Side of the Problem: Judging Africa’s
Judiciary................................................................................61
* Associate Professor of Law, Seton Hall University School of Law. J.D., Yale
Law School. My thanks to my colleagues Michelle Adams, Tristin Green and Charles
Sullivan and to Mary Dudziak of the University of Southern California Law Center for their
very helpful comments on previous drafts of this Article. I also benefited from comments
and suggestions I received on a very early draft of this Article from my colleagues at the
January 2005 Seton Hall Faculty Scholarship Retreat. Research for this Article was supported
by the Seton Hall Law School Faculty Development Fund.
1
2 TULANE LAW REVIEW [Vol. 80:1
1.
The Challenge of Social Legitimacy ..........................61
2.
The Challenge of Judicial Independence....................66
3.
The Challenge of Judicial Accountability ..................68
4.
The Challenge of Jurisprudence..................................71
a. The Common Law in a Constitutional
Era ..................................................................72
b. The Problem of Cultural Relativism...............79
V. CONCLUSION ..................................................................................83
I. INTRODUCTION
In American politics and constitutional discourse, an enthusiastic
celebration of judicial review as an unmitigated virtue is these days an
indulgence largely for the uninitiated. Within the American legal
academy, not only has Chief Justice Marshall’s famed opinion in
Marbury v. Madison1 lost much of its iconic aura,2 there is now
grumbling, from both the Left and the Right, about “taking the
constitution away from the courts.”3 Not so in the rest of the world.
Around the globe, popular as well as academic interest in courts and
judicial review is growing,4 the offspring of a “wave” of
1. 5 U.S. (1 Cranch) 137 (1803).

2. See, e.g., Sanford Levinson, Why I Do Not Teach Marbury (Except to Eastern
Europeans) and Why You Shouldn’t Either, 38 WAKE FOREST L. REV. 553, 574 (2003)
(“Marbury should join” other “esoteric” cases “in well-deserved obscurity.”); Michael J.
Klarman, How Great Were the “Great” Marshall Court Decisions?, 87 VA. L. REV. 1111,
1113 (2001) (“Marbury, it turns out, is a great deal less important than is commonly
supposed.”). For a classic analysis and critique of Marbury, see William W. Van Alstyne, A
Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 3.
3. See generally MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS (1999) (advocating a populist interpretation of the United States Constitution). For
the view from the right, see ROBERT H. BORK, COERCING VIRTUE: THE WORLDWIDE RULE OF
JUDGES (2003) (arguing that judges in the United States and certain other western
democracies have seized authority that properly belongs to the people and their elected
representatives).
4. See generally CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS,
AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE (1998) (discussing the role of the courts
in protecting individual rights in the United States and considering whether an individual
rights revolution would be viable in Great Britain and India); TOM GINSBURG, JUDICIAL
REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003) (analyzing
the origins of judicial power in new democracies, its development in the early states of
democratization, and the political conditions favorable to the expansion of judicial power);
THE GLOBAL EXPANSION OF JUDICIAL POWER (C. Neal Tate & Torbjörn Vallinder eds., 1995)
(collecting works discussing the rise of judicial review in countries outside of the United
States); RAN HIRSCHL, TOWARD JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE
NEW CONSTITUTIONALISM (2004) (“Around the globe, in more than eighty countries and in
several supranational entities, constitutional reform has transferred an unprecedented amount
of power from representative institutions to judiciaries.”); HERMAN SCHWARTZ, THE
2006] MARBURY IN AFRICA 3
democratization that has spread since the last two decades of the
twentieth century.5 Sub-Saharan Africa is one region of the world
where Marbury’s legacy6 is enjoying a quiet resurgence.7 Since the
early 1990s, several of sub-Saharan Africa’s forty-something states
have experienced a return to open and competitive politics.8 Military
regimes, one-party rule, and “life presidents,” once the norm in
postcolonial Africa, have given way to elected and term-limited
presidents and representative parliaments in countries like Nigeria,
Ghana, Kenya, Senegal, Mozambique, Zambia, Tanzania, Malawi,
Benin, Uganda, and Mali.9
As elsewhere in the postauthoritarian world, the democratic gains
and strides made in Africa have been underwritten by constitutional
reforms. One common feature of these reforms has been the
empowerment of Africa’s judiciaries. Africa’s revised constitutions
grant designated national courts plenary authority to interpret and
enforce new bills of rights and other constitutional guarantees.10
Already, there are indications that Africa’s judges may be feeling quite
surefooted about their newly enhanced constitutional powers.
In Ghana, for example, where a new constitution restored
democratic politics and civil liberties in 1993, the country’s supreme
court enjoined the publicly funded celebration of the anniversary of the
coup d’état that abolished the country’s last republican constitution.
Rejecting political question objections raised by the government, the
Ghana court held that the planned celebration was inconsistent with
STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST-COMMUNIST EUROPE (2000) (discussing the

recent history of judicial review in Eastern Europe).
5. See generally SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN
THE LATE TWENTIETH CENTURY (1991) (discussing the “wave” of countries that transitioned
from nondemocratic to democratic political systems between 1974 and 1990).
6. In crediting Marshall’s opinion in Marbury with originating judicial review, I
merely follow the conventional rendering of the story. For the contemporary historical view,
see, for example, R. KENT NEWMYER, JOHN MARSHALL AND THE HEROIC AGE OF THE
SUPREME COURT 170 (2001) (“[J]udicial review as Marshall expounded it in Marbury was in
fact not radical, not definitive . . . and not original.”).
7. See generally J. Oloka-Onyango, Constitutionalism in Africa: Yesterday, Today
and Tomorrow, in CONSTITUTIONALISM IN AFRICA: CREATING OPPORTUNITIES, FACING
CHALLENGES 1 (J. Oloka-Onyango ed., 2001) [hereinafter CONSTITUTIONALISM IN AFRICA].
8. See generally STATE, CONFLICT, AND DEMOCRACY IN AFRICA (Richard Joseph ed.,
1999) (evaluating the democratic opportunities and progress of African nations during the
1990s).
9. Claude Ake, Rethinking African Democracy, in THE GLOBAL RESURGENCE OF
DEMOCRACY 71 (Larry Diamond & Marc F. Plattner eds., 1993); Editorial, An African
Success Story, N.Y. TIMES, Jan. 8, 2001, at A16.
10. See, e.g., Christopher S. Wren, Katutura Journal: For Namibians, After the
Battles, a Civics Class, N.Y. TIMES, Mar. 19, 1991, at A4.
the democratic ethos of the country’s new constitution.11 In Malawi,

whose long-reigning autocrat was forced to submit to democratic
elections in 1994 and was later defeated in the ensuing elections,12 the
courts enjoined as unconstitutional certain actions of the country’s
successor president, including an order banning public protest against
a proposed constitutional amendment to extend a two-term limit on
presidential tenure.13 In 2001, a judge in Zambia similarly forbade the
country’s president and his allies in the ruling party from expelling
certain party members who had opposed a plan to amend the national
constitution to allow the president to stand for a third term.14 Courts
and judges in these and other African countries have enforced similar
constitutional strictures against elected presidents, legislatures, and
ruling parties in a number of recent cases.15
The significance of these decisions cannot be overstated,
rendered, as they were, by judiciaries that have long been regarded,
correctly so, as marginal or inconsequential to the business of
government in Africa. Significantly, in most of these cases, not only
were the courts able to say “no” to popularly elected presidents, but
their “no” generally stuck.16 In Ghana, for example, the country’s
elected president at the time—the same former soldier who had led the
last coup—publicly and angrily denounced as a “judicial coup d’état”
the supreme court’s ruling enjoining state-funded commemoration of
the December 31, 1982 coup. Still, the government complied with the
11. New Patriotic Party v. Attorney-Gen., [1993-95] S. Ct. G.L.R. 1 (Ghana).

12. See Editorial, Malawi, Freed from Its Liberator, N.Y. TIMES, May 21, 1994, at 20.
13. State v. President of Malawi (Ex parte The Malawi Law Society), reported in 4
COMMONWEALTH HUM. RTS. L. DIG. 3, 4-15 (2003), available at http://www.worldlii.org/int/
cases/ICHRL/2002/15.html.
14. Int’l Comm’n of Jurists, Zambia: Attacks on Justice 407 (2002), available at
http://www.icj.org/IMG/pdf/zambia-2.pdf (“[T]he Lusaka High Court derailed an attempt by
the ruling MMD [Movement for Multi-Party Democracy] to sack dissident legislators, who
had been opposed to President Chiluba’s bid for a third term in office. . . . In his ruling, High
Court judge Tamula Kakusa declared that the 21 legislators were still members of the MMD
party.”).
15. For example, in Uganda, the constitutional court declared unconstitutional a
section of a new political parties law that would have allowed limited political party
organization and activity at the national, but not local, level. Ssemogerere v. Attorney-Gen.,
Const. Pet. No. 5 of 2002 (Const. Ct., Uganda) (unreported), discussed in Barya v. Attorney
Gen., Const. Pet. No. 7 of 2002 (Const. Ct., Uganda). Zambia’s Supreme Court has struck
down a provision in the Public Order Act requiring anyone who wished to hold a public
meeting or protest to obtain a police permit as violative of the rights of freedom of expression
and assembly. Mulundika v. People, (1995/1997) Z.L.R. 20 (Zambia). The court cited as
grounds for its judgment the failure of the law to provide safeguards against arbitrary denial
of permits by the police. Id. at 30-32.
16. The idea of conceptualizing judicial independence as involving courts being able
to say “no” and making it “stick” is elaborated in C. Larkins, Judicial Independence and
Democratization: A Theoretical and Conceptual Analysis, 44 AM. J. COMP. L. 610 (1996).
court order, as it did other adverse judicial rulings in important

constitutional cases.17
Do these court rulings foreshadow or exemplify the emergence in
contemporary Africa of a new regime of rights, limited government,
and the rule of law? Does the constitutional empowerment of Africa’s
judiciaries, via judicial review and justiciable bills of rights, represent
hope for the triumph of constitutionalism on the continent? Are
Africa’s days of “constitutions without constitutionalism”18 over? In
short, has a new dawn of constitutionalism finally arrived in Africa?
These questions matter, and not only because the prospect of
constitutionalism in Africa matters, but also because constitutions, bills
of rights, and judicial review are not new phenomena in Africa.19 In
Africa’s postcolonial history, nearly every country has experienced the
phenomenon of a formal constitution existing side-by-side with
authoritarianism.20 In countries such as Nigeria and Ghana, where the
national experience since the 1960s has been one of an alternating
cycle of (long) military and (short) democratic rule, the current
constitutions represent their fourth or fifth attempt at constitutionalism
since independence.21 This record of failure of constitutionalism
naturally evokes, among observers of the modern constitutional
processes unfolding in Africa, a degree of pessimism regarding the
viability of the contemporary project. Indeed, to be credible, an
17. See H. KWASI PREMPEH, TOWARD JUDICIAL INDEPENDENCE AND ACCOUNTABILITY

IN AN EMERGING DEMOCRACY: THE COURTS AND THE CONSOLIDATION OF DEMOCRACY IN
GHANA 47 n.65 (1997) (listing other constitutional cases that resulted in adverse judgments
against the government).
18. H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections on
an African Political Paradox, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE
CONTEMPORARY WORLD 65-80 (Douglas Greenberg et al. eds., 1993).
19. See generally WILLIAM BURNETT HARVEY, LAW AND SOCIAL CHANGE IN GHANA
(1966) (discussing the rule of law in Ghana in the early postcolonial period); B.O.
NWABUEZE, JUDICIALISM IN COMMONWEALTH AFRICA: THE ROLE OF COURTS IN GOVERNMENT
(1977) (discussing the judicial role in the constitutional governments of commonwealth
Africa); James C.N. Paul, Some Observations on Constitutionalism, Judicial Review and
Rule of Law in Africa, 35 OHIO ST. L.J. 851, 853 (1974) (“In Africa, the question of whether
governments are to be accountable to legal standards . . . has been identified by many
outstanding jurists and political leaders as one of the most important problems of political
development.”); Robert B. Seidman, Judicial Review and Fundamental Freedoms in
Anglophonic Independent Africa, 35 OHIO ST. L.J. 820, 820 (1974) (“The governments of
independent Africa took office under constitutions in the main designed by departing colonial
civil servants and imposed as a condition for independence.”).
20. See, e.g., Editorial, Trouble in Zambia, N.Y. TIMES, Dec. 28, 1997, § 4, at 8
(discussing Zambia’s president Frederick Chiluba attempt to rewrite the constitution to
prohibit certain opposition party members from running for president).
21. Agence France-Presse, First Peaceful Power Shift Is Welcomed by Ghanaians,
N.Y. TIMES, Dec. 31, 2000, § 1, at 12.
assessment of the prospects of constitutionalism in contemporary

Africa must contend with the past history of failure.
In this Article, I make two broad claims: first, that the social and
political contexts of the current constitutionalism project in Africa are
different in fundamental respects from those of past periods and thus
indicate conditions favorable to the emergence of constitutionalism in
Africa’s new democracies; second, that, while current trends represent
a significant new opportunity—a “constitutional moment”22 —to build
constitutionalism in Africa, the model that Africa’s lawyer-dominated
reformers appear to have settled on—juridical constitutionalism—is a
“quick fix” that fails to engage or redress persistent defects in the
structure and distribution of power in the postcolonial African state.
By ignoring the promise of structural constitutionalism, which would
constrain executive hegemony and the centralized unitary state
through horizontal and vertical dispersion of governmental power, and
focusing instead on judicial protection and enforcement of enumerated
rights, Africa’s current constitutional reform project places undue faith
in judicial review. This preoccupation with judicial review also fails to
take into account longstanding limitations that confront constitutional
litigation and adjudication in Africa; limitations that still hamper the
ability of Africa’s courts to deliver on the promise of constitutionalism.
In Part I of this Article, I examine why judicial review and
constitutionalism have hitherto failed to emerge or survive in Africa,
despite the seeming obsession with constitutions and constitution-
making on the part of Africa’s political elites. In particular, I critically
evaluate the view—widely held among African lawyers—that the
African judiciary bears a substantial, if not the primary, portion of the
blame for the demise of constitutionalism in the early decades of
African independence. In examining the empirical bases of this claim,
I review a sample of influential constitutional cases decided by various
national courts in common law Africa in the early postcolonial period.
Placing these cases within their relevant historical, social, and political
contexts, I argue that the problem with the African judiciary during
this period was not, as the lawyer-critics allege, a matter simply or
primarily of “bad” judges or “bad” doctrine, but rather one of a severe
deficit of empirical legitimacy for constitutionalism that resulted from
22. The term “constitutional moment” is Bruce Ackerman’s famous coinage to

describe episodic points in a country’s constitutional history when previously settled
understandings as to the nature and structure of the constitutional order are repudiated
without recourse to the formal amendment procedure and replaced by new understandings
that are widely accepted as legitimate. See generally BRUCE ACKERMAN, WE THE PEOPLE:
TRANSFORMATIONS (1998).
the successful mobilization by Africa’s political elites of the ideology

of “development” to underwrite their authoritarian projects. I argue
that by sourcing their legitimacy in supraconstitutional values rooted
in the material condition and needs of the people, the new managers of
the postcolonial African state created for the judiciary a “counter-
majoritarian difficulty”23 of sorts that the latter could not have
reasonably overcome. I offer support for this view by examining the
legacy of colonialism in Africa and how the developmental challenges
that colonialism left in its trail facilitated the twin processes of
delegitimization of constitutionalism, on the one hand, and the
legitimization of authoritarianism, on the other. I suggest that blaming
the judiciary for the failure of constitutionalism misdiagnoses the
problem and leads the way, misguidedly, to a “technocratic,” rather
than a structural, solution to the problem of constitutionalism in Africa.
Part II of this Article brings the discussion to the present to
address whether prospects for constitutionalism in Africa have
brightened or whether the recent constitutionalism revival is yet
another false start. I approach this question by focusing some critical
light on a particularly fatalistic position taken by Kenyan legal scholar
H.W.O. Okoth-Ogendo.24 Okoth-Ogendo disputes the viability of
constitutionalism in Africa in light of the absence of a tradition of
constitutionalism and the “dismal” socioeconomic conditions in which
the average African continues to live.25 In rejecting such pessimism, I
point out critical differences between the social and political contexts
of the contemporary project and those of the past, noting, in particular,
the significance of the passing of Africa’s “Founding Fathers” from the
political scene, the emergence of presidential term-limits as a norm in
Africa’s new democracies, and the growth of a civic-minded civil
society. Although I reject Okoth-Ogendo’s pessimism, I recognize
defects in the current constitutional reform agenda, which exist despite
the favorable trends and opportunities. Specifically, I note that while
revised constitutions in Africa have democratized access to political
power and empowered national judiciaries to enforce bills of rights,
they have done little else to reconfigure, horizontally or vertically, the
distribution of power and authority within the postcolonial state.
Rather, Africa’s current constitutions have preserved the centralizing
tendencies of the founding elites. As a result, the state in Africa
remains highly centralized, presidents continue to wield disproportionate
23. The term is, of course, Alexander Bickel’s. See ALEXANDER M. BICKEL, THE
LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (2d ed. 1986).
24. Okoth-Ogendo, supra note 18, at 80.
25. Id.
power and resources, parliaments remain functionally weak (if more

representative), and “winner-take-all” politics are still the order of the
day.26 The burden of policing and checking the abuse of power in
contemporary Africa thus rests uneasily on the shoulders of private
litigants and the judiciary.
Finally in Part III of this Article, I examine the perils inherent in a
policy of resting the future of African constitutionalism too heavily on
judicial review. I highlight the challenges that confront constitutional
litigation and adjudication in Africa. In particular, I identify
deficiencies in the jurisprudential or doctrinal outlook, social
legitimacy, and independence of Africa’s courts and how these might
undercut the ability of judicial review to advance constitutionalism in
Africa.
The prescriptive logic of this Article urges constitutional
architects committed to building constitutionalism in Africa to pursue
their goal not only through judicial empowerment and democratization
of politics (though both are necessary), but, more importantly, by
reconfiguring the postcolonial state and the vertical and horizontal
distribution of power within it. In addition, by highlighting
deficiencies in the judicial realm, I aim not only to make the case for
devoting substantially more attention and investment to African
judiciaries, but also to suggest realism about the possibilities of judicial
review in Africa.
Within the growing scholarship on comparative constitutionalism
spawned by the globalization of judicial review, developments in
Africa—outside South Africa—have received virtually no airing.27
This Article thus serves the additional purpose of expanding the
ongoing comparative discourse to incorporate the African experience.
As such, it also aims to refute the presumption of African
exceptionalism that often provides a colorable excuse for the persistent
marginalization of Africa within comparative discourses.28
26. See Muna Ndulo, The Democratization of Process and Structural Adjustment in
Africa, 10 IND. J. GLOBAL LEGAL STUD. 315, 320 (2003) (“Frequently, the candidate of a
political victory assumes a ‘winner-take-all’ mentality with respect to patronage, wealth, and
resources, as well as the prestige and prerogative of office.”).
27. See Mary L. Dudziak, Who Cares About Courts? Creating a Constituency for
Judicial Independence in Africa, 101 MICH. L. REV. 1622, 1630 (2003) (reviewing JENNIFER
A. WIDNER, BUILDING THE RULE OF LAW: FRANCIS NYALALI AND THE ROAD TO JUDICIAL
INDEPENDENCE IN AFRICA (2001) (“Amidst the blossoming of comparative scholarship, most
of the continent of Africa is usually overlooked, as if it were a legal ‘Heart of Darkness,’ as if
it were a lawless world.” (internal citation omitted)).
28. As social scientists C.R.D. Halisi and Scott Bowman have observed, African
exceptionalism—the “idea that the problems that plague Africa are uniquely African” and
thus must be analyzed without reference to or reliance on “universal categories of
Discussions about Africa often run afoul of the injunction against

making generalizations based on a single common attribute, such as
geography. I have tried to heed this injunction. Thus, while I refer
repeatedly in this Article to a seemingly undifferentiated Africa, I have
in mind, and this Article focuses on, a more narrowly defined Africa.
The Africa that forms the subject of this Article comprises countries
that share the following characteristics relevant to our discussion: first,
their legal systems follow the common law tradition owing to a
common experience of English colonialism;29 second, they each have
a history of failed attempt(s) at constitutionalism; and, third, they each
have a recent and ongoing experience of democratization and
constitutional reform. Within this group, I will frequently use the West
African country of Ghana for illustrative purposes.30
explanation”—“has become the golden rule of analysis” for many students and observers of
Africa. Halisi and Bowman, Theory that Matters: The Intellectual Legacy of Richard L.
Sklar, in AFRICAN POLITICS IN POSTIMPERIAL TIMES: THE ESSAYS OF RICHARD SKLAR, at lxi
(Toyin Falola ed., 2002). Halisi and Bowman note, accurately, that, “Far too frequently,
claims of African exceptionalism mask a failure to grasp the universal in the particular.
Conversely, imported theories that purport to explain African politics often do violence to the
particular. The objective of social-scientific research . . . lies between these two extremes.
One must first understand a subject in all of its peculiarities by studying it on its own terms.
Then, and only then, can one hope to explain its theoretical significance.” Id.
29. For a discussion of contemporary democratic and constitutional reform in
Francophone Africa, see Christopher Fomunyoh, Democratization in Fits and Starts, 12 J.
DEMOCRACY, July 2001, at 37; see also Bruce A. Magnusson, Testing Democracy in Benin:
Experiments in Institutional Reform, in STATE, CONFLICT, AND DEMOCRACY IN AFRICA, supra
note 8, at 217.
30. The choice of Ghana is not arbitrary. Once considered by Britain as its “model
colony,” “Ghana has always exerted a greater influence over African affairs and over external
perceptions of the continent than its limited size and population . . . might lead one to
expect.” PAUL NUGENT, BIG MEN, SMALL BOYS AND POLITICS IN GHANA: POWER, IDEOLOGY
AND THE BURDEN OF HISTORY, 1982-1994, at 9-10 (1995). Starting in March 1957, when she
became the first sub-Saharan African country to gain sovereign statehood, Ghana (formerly
the Gold Coast) has earned a reputation in African politics as a trendsetter of sorts. See
TAPAN BISWAL, GHANA: POLITICAL AND CONSTITUTIONAL DEVELOPMENTS 2 (1992) (“In
many ways Ghana has been a pioneer state in Africa. Ghana was the first African state to
gain independence; the first to initiate single-party rule; the first to experiment with a
mobilizing ideology; the first to suffer the effect of rapid economic deterioration; among the
first to succumb to military intrusion in the political sphere; and the first to undergo a
peaceful transition to civilian rule.”). Since the early 1990s, Ghana has recovered from the
economic and political doldrums, becoming, once again, “an example and a beacon of hope
for the rest of Africa.” Press Statement, Dir., Ctr. for Democracy & Dev., Kayode Fayemi,
Reflections on Ghana’s Recent Elections (Dec. 10, 2004), available at
http://www.cdd.org.uk/resources/press_statements/dec04ghanareflections.htm.
II. THE FAILURE OF CONSTITUTIONALISM IN AFRICA BEFORE THE

1990S
Constitutions and judicial review are not new items on the
agenda of postcolonial Africa. Newly minted constitutions
accompanied African states at independence,31 formally registering, in
each case, the change in the juridical status of the relevant territory
from a colony to a sovereign state.32 Since their founding constitution,
many African states have undergone a succession of constitutions and
constitutional revisions, each new one marking, almost ritualistically,
the birth of a “new” regime. Even military juntas, at whose hands
many African constitutions have died a premature death, have been
mindful to “relegitimize” their authority and restore legality by
pronouncing a new Grudnorm,33 often as their first official act.34 And
upon their exit, where that has occurred, Africa’s military regimes have
themselves left a legacy of new, often more “democratic,”
constitutions almost as recompense for their earlier acts of usurpation.
Although the purposeful installation of constitution after
constitution might suggest that the installers attach some substantive
value to written constitutions, in Africa such documents have generally
failed to matter, much less promote constitutionalism. Indeed Africa’s
past constitutions have failed to engender within their respective
publics a discourse about constitutionalism or the constitution itself,
except such professional dialogue as is customary among the small
community of specialist lawyers and judges for whom textual study
and episodic use of the constitution are a vocational imperative.
Outside this narrow circle of legal technicians, however, Africa’s
constitutions have gone largely unnoticed.
The avoidance of meaningful discourse about African
constitutions is especially noticeable in scholarship about the politics
31. See, e.g., Victor T. Le Vine, The Fall and Rise of Constitutionalism in West
Africa, 35 J. MOD. AFR. STUD. 181, 183-87 (1997); William Dale, The Making and Remaking
of Commonwealth Constitutions, 42 INT’L & COMP. L.Q. 67, 67 (1993).
32. See, e.g., GHANA CONST. pmbl. (1960), reprinted in LESLIE RUBIN & PAULI
MURRAY, THE CONSTITUTION AND GOVERNMENT OF GHANA 256 (“We the people of Ghana
. . . exercise . . . our undoubted right to appoint for ourselves the means whereby we shall be
governed.”).
33. The term is used by legal philosopher Hans Kelsen to denote the fundamental
norm upon which a legal system is based. HANS KELSEN, GENERAL THEORY OF NORMS 252-
64 (Michael Hartney trans., 1991).
34. Kelsen discusses the legitimating force of establishing a new norm after coup
d’état. HANS KELSEN, GENERAL THEORY OF LAW AND STATE 117 (Anders Wedberg trans.,
1961) (stating that “[u]sually, the new men whom a revolution brings to power annul only the
constitution and certain laws of paramount political significance, putting other norms in their
place” to promote the legitimacy of a constitution that was illegitimately created).
and governance of African states. Social scientists seeking to describe

or understand the drivers of politics, governance and political behavior
in African states have generally disregarded the national constitution
or, for that matter, the courts, implicitly conveying the opinion or
impression that neither the operation of the constitution nor judicial
activity holds much explanatory power regarding the ebb and flow of
African politics.35 The “inquiring student of African politics,” who
wished to understand the “central characteristics and drivers” of
politics in an African state, was instructed to “read Machiavelli or
Hobbes [rather] than the constitutions” of African governments.36
Among Western legal scholars writing about law and Africa, interest in
African public law seemed to have tapered off by the end of the 1970s,
after the initial burst of activity following the end of colonialism in the
1960s. Even Africa’s own legal scholars are only now returning to
explore again the possibilities of constitutional law.
In light of the renewed spate of activity in constitution-making
and constitutional reform in a number of African states, the question,
“Who or what killed earlier hopes for constitutionalism in Africa?”
must assume more than academic import. Opinions and viewpoints
necessarily differ.37 Among the rival viewpoints, however, the opinion
shared by Africa’s lawyers and jurists deserves particular attention
because of the prominent role this class of Africans has played in
contemporary constitutional reform processes.38 How Africa’s
lawyers see and interpret the past is therefore likely to have
exceptional influence over the content and direction of contemporary
reform.
Africa’s common law lawyers often turn to the pages of national
law reports from the early postcolonial period for an explanation of
why past attempts at constitutionalism failed. Upon studying the
evidence, Professor Robert Seidman provides this summation: “The
judicial response in Africa to claims that fundamental freedoms have
been violated . . . has been almost without exception in favor of
35. For an important recent departure from the general neglect of African courts by
social scientists, see generally WIDNER, supra note 27.
36. ROBERT H. JACKSON AND CARL G. ROSBERG, PERSONAL RULE IN BLACK AFRICA:
PRINCE, AUTOCRAT, PROPHET, TYRANT 266 (1982).
37. See, e.g., Le Vine, supra note 31, at 181.
38. See Okechukwu Oko, Consolidating Democracy on a Troubled Continent: A
Challenge for Lawyers in Africa, 33 VAND. J. TRANSNAT’L L. 575, 583-84 (2000) (“Lawyers
. . . have the capacity to check the arbitrary powers of government, expand and protect
citizens’ rights, reform legal institutions, rejuvenate the civil society, and induce attitudinal
changes necessary to sustain democracy.”).
governmental action and against the claim of freedom.”39 This datum

is seized upon by a number of African lawyers to indict the judiciary
for the failure of constitutionalism to date. In a recent article, African
human rights lawyer Chidi Odinkalu states this position with particular
conviction:
[T]he first generation of the Constitutions and Bills of Rights in
Common Law Africa was destroyed not so much by the intolerance of
the executive as by the enthusiastic abdication of judicial
responsibilities by the persons and institutions mandated under those
Constitutions to perform them, coupled with a readiness to share across
national borders the wrong models and bad precedents.40
The underlying opinion, if not the tone, of Odinkalu’s statement
is one that is widely shared by his professional peers across common
law Africa. Support for this view is often garnered from a string of
landmark cases decided by Africa’s national courts within roughly the
first decade after independence. In the next Subpart, I examine a
representative sample of these cases.
A. The (Un)Making of Constitutional Law in Early Postcolonial

Africa
In 1961, the Supreme Court of Ghana heard independent Africa’s
first major constitutional challenge against presidential and legislative
power. The case was Re Akoto.41 Akoto arose out of the enforcement
by Ghana’s first postcolonial government of a preventive detention
law.42 Enacted in 1958, only one year after the country’s
independence, and fashioned after colonial era ordinances,43 the law
gave the President power to order the detention of any citizen of
Ghana for up to five years if he was “satisfied that the order [was]
necessary to prevent [the person detained from] acting in a manner
prejudicial to the defense of Ghana or the relations of Ghana with
39. Seidman, supra note 19, at 827.

40. Chidi Anselm Odinkalu, The Judiciary and the Legal Protection of Human
Rights in Common Law Africa: Allocating Responsibility for the Failure of Post-
Independence Bills of Rights, 8 AFR. SOC’Y OF INT’L & COMP. L. PROC. 124, 136-37 (1996).
41. [1961] G.L.R. (pt. II) 523. The case and related facts are extensively discussed in
HARVEY, supra note 19, at 281-95, and F.A.R. BENNION, THE CONSTITUTIONAL LAW OF
GHANA 220-26 (1962).
42. The relevant provisions of the Act are reproduced in BENNION, supra note 41, at
221.
43. See HARVEY, supra note 19, at 282-83 (discussing colonial ancestor to the
Preventive Detention Act).
other countries or the security of the State.”44 The act did not require a
declaration of an emergency as a predicate for its application.45
The Akoto petitioners were eight members of Ghana’s opposition
party who had been detained under the law.46 Their application for a
writ of habeas corpus was first refused by the High Court, the superior
court of first instance in Ghana.47 The petitioners then proceeded by
appeal to the Supreme Court, asking it to overturn the judgment of the
lower court on the ground that the preventive detention law was
unconstitutional.48 In a unanimous decision, the Ghana Supreme
Court rejected the petitioners’ appeal.49
Ghana’s constitution at the time, successor to the independence
constitution of 1957,50 granted the Supreme Court power to adjudicate
“whether an enactment was made in excess of the powers conferred on
Parliament by or under the Constitution.”51 In support of their
contention that the preventive detention statute was unconstitutional,
the Akoto petitioners argued that enforcement of the law infringed
certain “fundamental principles” set forth in the constitution and which
the President was sworn to uphold.52
Indeed, under the constitution, the President, prior to assuming
office, was required to make a “solemn declaration” of his
“adherence” to certain “fundamental principles.”53 The relevant text
read as follows:
Immediately after his assumption of office the President shall make
the following solemn declaration before the people—
On accepting the call of the people to the high office of President of
Ghana, I [name of President] solemnly declare my adherence to the
following fundamental principles—
That the powers of Government spring from the will of the people
and should be exercised in accordance therewith.
That freedom and justice should be honoured and maintained.
....
That no person should suffer discrimination on grounds of sex, race,
tribe, religion or political belief.
....
44. BENNION, supra note 41, at 221.

45. HARVEY, supra note 19, at 284.
46. Id. at 285-86.
47. Id. at 285.
48. Id. at 286.
49. Re Akoto et al., [1961] G.L.R. (pt. II) 523, 535.
50. RUBIN & MURRAY, supra note 30, at 8.
51. GHANA CONST. art. 42, § 2 (1960).
52. Akoto, [1961] G.L.R. at 533.
53. Id. at 534.
That subject to such restrictions as may be necessary for preserving

public order, morality or health, no person should be deprived of
freedom of religion or speech, of the right to move and assemble
without hindrance or of the right of access to courts of law.
That no person should be deprived of his property save where the
public interest so requires and the law so provides.54
According to the petitioners, the foregoing provisions, contained
in article thirteen, section one of the Constitution, constituted a bill of
rights and thus operated as a limitation on executive and legislative
power.55 On this view, the preventive detention law was
unconstitutional because it infringed, and purported to authorize the
president to infringe, the “fundamental principles,” in violation of the
“solemn declaration” made by the president.56 Petitioners’ counsel57
“made extensive use of American constitutional cases and materials in
urging upon the Supreme Court an extensive power of judicial review
of legislation.”58
The Ghana Supreme Court rejected as “untenable” the
petitioners’ argument that the president’s solemn declaration to adhere
to certain “fundamental principles” transformed those principles into a
justiciable bill of rights.59 In the Court’s view, the president’s solemn
declaration was akin to the “coronation oath” of the British monarch.60
As such, it imposed on the president of Ghana only a moral, but not
legally binding obligation.61 According to the Court, the fundamental
54. GHANA CONST. art. 13, § 1 (1960).

55. Akoto, [1961] G.L.R. at 533.
56. Id.
57. The Akoto petitioners were represented by Dr. Joseph B. Danquah, at the time the
leading opposition politician. S.K.B. Asante, Vice President of the Ghana Acad. of Arts &
Sci., Reflections on the Constitution, Law and Development, Address Before the J.B.
Danquah Memorial Lectures (2002), at 1-4, available at http://ghana.fes-international.de/
attach/constitution_law.pdf. He would later die in detention, a victim of the same law he had
unsuccessfully tried to defeat in Akoto. See id. The Government was represented by its
Attorney General, Geoffrey Bing, a former Labour MP in the U.K. Parliament. Id. at 3.
58. HARVEY, supra note 19, at 287.
59. Criticizing the Court’s decision in Akoto, Professor Robert B. Seidman has
argued as follows:
The Court blinded itself to alternative possible solutions—for example, to create
out of Article 13 a presumption that the President would not violate his oath.
Using that presumption at least to read into the Preventive Detention Act a
violation of that oath would have required no greater strain on its language than
occurs whenever a court reads a mens rea requirement into a criminal statute that
on its face imposes liability without fault.
Seidman, supra note 19, at 847.
60. [1961] G.L.R. at 535.
61. Id. This reading of the “fundamental principles” appears to contradict statements
made by the Nkrumah government explaining to the Ghanaian public aspects of the proposed
principles provided, at best, “a political yardstick by which the conduct

of the Head of State can be measured by the electorate.”62 The remedy
for an alleged breach of any of the fundamental principles was
therefore “through the use of the ballot box, and not through the
courts.”63
Without any of the limitations that might be imposed by a bill of
rights, the Ghana Constitution of 1960, as interpreted by the courts,
left the president and legislature practically unrestrained in their
exercise of power. Politics, and not some “higher law,” was left as the
only check against abuse of presidential or legislative power, but in
Kwame Nkrumah’s Ghana even that option would soon be closed off
by the use of the Preventative Detention Act to imprison political
opponents.64
The use of colonial-style criminal legislation to suppress political
opposition in independent Africa was sustained against similar
constitutional challenges by other national courts during this period.
republican constitution before it was submitted to a national referendum. In a White Paper,

the government had explained the import of fundamental principles as follows:
The proposed Constitution for Ghana is based upon Freedom and Justice and it is
therefore desirable that these principles should be elaborated and protected by the
Constitution.
The existing [1957] Constitution does make certain provisions in this
regard. For example, there is a provision preventing the expropriation of property
without compensation. Laws based on religious or racial discrimination are
prohibited and the position of Chieftaincy is guaranteed.
In the draft Constitution these provisions, and a number of others, are set out
in Article 14 [appearing as Article 13 in the final Constitution].
HARVEY, supra note 19, at 418 (reproducing Government Proposals for a Republican
Constitution, White Paper No. 1/60) (emphasis added). In a contemporaneous public
address, Nkrumah himself also stated that “‘[t]he Constitution is based firmly on the Rule of
Law and leaves no scope for arbitrary action or for discrimination against any individual or
community. This is underlined by the requirement which is contained in the proposals, that a
new President must declare his adherence to certain fundamental principles.’” RUBIN &
MURRAY, supra note 30, at 39 (quoting Kwame Nkrumah broadcast address (Mar. 6, 1960)).
Furthermore, a government pamphlet explaining the proposals, included in a question-and-
answer section the assurance that “‘[t]he rights of the people are firmly entrenched in the
Constitution and in particular in Article 14 [Article 13 in the final text].’” Id. at 39.
62. [1961] G.L.R. at 535.
63. Id.
64. Arrest or detention under the Preventive Detention Act brought with it certain
collateral consequences, including, notably, disqualification of persons so detained from
contesting national legislative elections. In addition, a member of Parliament against whom
an order of detention had been issued lost his seat. By the combination of these provisions,
the preventive detention law became an effective weapon in the destruction of formal
opposition in Nkrumah’s Ghana, paving the way eventually to a one-party state in 1964.
HENRY L. BRETTON, THE RISE AND FALL OF KWAME NKRUMAH: A STUDY OF PERSONAL RULE
IN AFRICA 60-61 (1966). The country was already a de facto one-party state by 1962. Id. at
100.
In Director of Public Prosecutions v. Obi, for example, the petitioner,

then a legislator in Nigeria’s federal parliament, was charged with
sedition for distributing a pamphlet titled, “The people: Facts you
must know.”65 The pamphlet contained an assertion that government
ministers were motivated by self-interest, rather than the national
interest, in the performance of their duties. The offense of sedition had
first been introduced during the colonial period to stem growing
nationalist agitation, and the statute under which the petitioner was
charged was identical to its colonial antecedent. Under the statute, the
crime of sedition was committed if a statement brought the
government into ridicule or discredit. The truth or falsity of the
statement was immaterial, as was whether the statement did or did not
provoke a public disturbance. The Nigerian Supreme Court in Obi
held that the statute was constitutional on the ground that it was
justifiable in a democratic society to take reasonable precautions to
preserve public order. The court based its decision on the Schenck
“dangerous tendency”66 test that had then long been discarded in the
United States.67
Far more radical and audacious acts by other African chief
executives received similar judicial approval in their national courts.
For example, in February of 1966, Prime Minister Obote of Uganda,
reacting to a vote of censure passed against him in the legislature,
unilaterally abolished his country’s constitution that had been in force
since 1962, summarily dismissed its nonexecutive president, and
assumed total power—all in the name of “‘national stability . . . and
tranquility,’ and in furtherance of ‘the wishes of the people of this
country for peace, order and prosperity.’”68 A month later, without
recourse to the amendment procedure of the 1962 constitution but
using, instead, a “national assembly” he had convened, Obote
proclaimed a new “revolutionary” constitution, which confirmed him
65. [1961] N.L.R. 458 (Nigeria).

66. In Schenck v. United States, 249 U.S. 47, 49, 52 (1919), the government upheld
Schenck’s espionage convictions for distributing a pamphlet that encouraged resisting
military conscription, over a First Amendment challenge, by considering “whether the words
used [were] used in such circumstances and [were] of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
prevent.” Id. at 52. The Court concluded that if a speech or publication has the “tendency
and the intent” to encourage a crime, that “we perceive no ground for saying that success
alone warrants making the act a crime.” Id.
67. See PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL
DECISIONMAKING 337-39 (3d ed. 1992) (discussing subsequent United States Supreme Court
decisions and scholarly criticism that undermine the test in Schenck).
68. See B.O. NWABUEZE, PRESIDENTIALISM IN COMMONWEALTH AFRICA 344-45
(1974).
in power as executive president.69 In effect, the Ugandan prime

minister had used his incumbency to engineer a coup d’état against the
established constitutional order, assuming, in the process, far-reaching
powers not otherwise authorized under the prior constitution. His
actions were nonetheless approved by Uganda’s high court in Ex Parte
Motavu.70
The Ugandan court acknowledged that, “[t]here were no
pretensions on the part of the Prime Minister to follow the procedure
prescribed by the 1962 Constitution.”71 This fact, however, was not
enough to cause the Court to invalidate the change in the constitutional
order wrought by the prime minister’s unilateral act.72 In the Court’s
view, the 1962 Constitution of Uganda had been “abolished as a result
of a victorious revolution” and had thus ceased to exist.73 The same
“victorious revolution” had made the newly proclaimed 1966
Constitution a legally valid constitution.74 The Court relied on
Kelsen’s Pure Theory of Law.75
Similarly, President Kaunda of Zambia’s plan to turn the country
into a de jure one-party state encountered no judicial resistance. In
Nkumbula v. Attorney-General, the Zambia Court of Appeal dismissed
the petitioner’s argument that the president’s one-party plan threatened
existing constitutional guarantees of freedom of association.76 The
petitioner’s claim faced obvious ripeness problems, as the President’s
plan had yet to be implemented at the time of the suit. But the opinion
of the court dismissing the claim was far reaching in its conception of
the breadth of the government’s powers: “[I]t is unthinkable to
suggest that the government of a country elected to run an ordered
society is not permitted to impose whatever constitutional restrictions
on individual liberties it regards as necessary to enable it govern to the
best advantage for the benefit of the society as a whole.”77
69. See Paul, supra note 19, at 857 n.22 (quoting Prime Minister Obote of Uganda).
70. Uganda v. Comm’r of Prisons (Ex parte Matovu), [1966] E.A.L.R. 514.
71. Id. at 535.
72. Id. at 537 (“[T]he 1966 Constitution was the product of a revolution. . . .
Although the product of a revolution, the Constitution is none-the-less valid in law because in
international law revolutions and coups d’etat are the recognised methods of changing
governments and constitutions in sovereign states.”).
73. Id. at 539.
74. Id.
75. Id.; see also HANS KELSEN, PURE THEORY OF LAW 1 (Max Knight trans., Univ.
Cal. Press 1967) (1960) (studying how the law exists in reality, rather than what the law
ideally ought to be, and paying particular attention to the origins of the legitimacy of
constitutions).
76. (1972) Z.L.R. 204, 215 (Zambia).
77. Id. at 210.
The methods approved by the respective national courts in Akoto

(preventive detention), Obi (sedition), Ex Parte Matovu (coup d’état),
and Nkumbula (one-party state) would become characteristic of
government and politics in Africa in the period between 1957 and
1990. Significantly, the courts in these cases, as in countless others
throughout postcolonial Africa, did not use political question reasoning
or other strategies of judicial avoidance to refuse entanglement in the
political controversies of the day. They adopted, instead, a policy of
absolute affirmative deference to the judgment of the dominant
politicians of the day.
B. The Search for Explanation

What explains the results in cases like Akoto, Ex Parte Matovu,
and Nkumbula—landmark cases that defined (or perhaps merely
described) the relationship between law and politics in Africa for much
of the postcolonial period? Why did Africa’s courts so readily
subordinate the constitution, law, and judicial power to politics and the
will of ruling politicians?
The commentary generated by these cases, both around the time
they were rendered and more recently, has focused largely on the
doctrinal, reflecting the fact that lawyers have authored most of such
commentary. From that perspective, the dominant opinion blames
these judicial decisions and the general impotence of African
constitutional law on a combination of what might be called “bad”
judges and “bad” jurisprudence. For example, one of Africa’s most
influential legal scholars of an earlier generation, Nigerian Professor
Ben Nwabueze, identifies “the primary reason” for the
“unsatisfactory” performance of Africa’s postcolonial judiciaries as
their “inherited common law attitude towards the judicial function,” an
attitude characterized by “literalness and analytical positivism in the
interpretation of the law” and a “narrowness of outlook towards
problems presented for decision.”78 Similarly, Professor Robert B.
Seidman, writing in the 1970s, described African judges as “supine in
their posture toward laws challenged on constitutional grounds,”79
blaming the general tenor of African judicial decision-making during
this period on narrow legalistic reasoning by Africa’s appellate judges,
the judges’ socialization in the colonial legal order, and their upper-
class values.80
78. Nwabueze, supra note 19, at 310.

80. Id. at 834-45.
Within domestic communities of lawyers in contemporary Africa,

there is widespread agreement with the basic thrust of Chidi
Odinkalu’s criticism that, “the judiciary in many of these countries
deliberately and knowingly abdicated its constitutional role to protect
human rights.”81 In Ghana, for example, where Akoto is often recalled
with exceptional opprobrium,82 a judge of Ghana’s supreme court
recently expressed regret that, “in the Akoto case, our Supreme Court
missed the opportunity to designate article 13 of the 1960 Constitution
as a Bill of Rights.”83 Another legal commentator has expressed
disappointment that the “judiciary . . . that the citizen looked up to for
the protection of his liberty and fundamental rights failed him
miserably in the Re Akoto case.”84
There is no question that English juristic ideas and methods have
exerted a strong influence on judicial attitudes in common law
Africa.85 In Akoto, for example, the Court relied on the wartime
English case of Liversidge v. Anderson86 to support its conclusion that
the truth or reasonableness of the grounds adduced for a detention
order was not a proper matter for judicial review.87 The Akoto Court
also found it significant that the constitutional text, on the strength of
which petitioners sought to impose a judicially enforceable duty on the
president, had employed the precatory “should” instead of the
mandatory “shall.”88 To the Court, this was proof that the disputed
“fundamental principles” to which the president had sworn adherence
did not have the force of legal compulsion or obligation behind
them.89
Still, to blame Akoto and its generation of cases on the influence
of English interpretive methods or “bad” jurisprudence is to render far
too simplistic an account of the matter. It is not clear that cases like
Akoto and Ex Parte Matovu would have been decided differently but
81. Odinkalu, supra note 40, at 124.

82. See S.Y. BIMPONG-BUTA, THE LAW OF INTERPRETATION IN GHANA: EXPOSITION
AND CRITIQUE 320 (1995) (calling the decision “spineless”). Peter Omari also writes: “Three
things must be held responsible for the inadequacy of the 1960 Constitution and for the
Ghanaian’s loss of liberty under that Constitution—President Nkrumah, the Justices of the
Supreme Court and Parliament. Of these three the judiciary must take most of the blame.” T.
PETER OMARI, KWAME NKRUMAH: THE ANATOMY OF AN AFRICAN DICTATORSHIP 13 (1970).
83. New Patriotic Party v. Inspector Gen. of Police, Ghana Sup. Ct., Suit No. 4/93, 30
Nov. 1993 (unreported), discussed in BIMPONG-BUTA, supra note 82, at 314.
84. BIMPONG-BUTA, supra note 82, at 314 n.19 (italics in original).
85. See discussion infra Part IV.B.
86. (1941) All E.R. 338 (H.L.) (appeal taken from Eng.).
87. Re Akoto, [1961] G.L.R. 523, 529.
88. Id. at 525.
89. Id.
for the influence of bad doctrine. Judicial deference to the will of

dominant politicians can be observed even in jurisprudential cultures
where the force of Austinian positivism90 or of Diceyian constitutional
thought91 is remarkably weak.
In the end, the judge-centered explanation for the failure of
judicial review and constitutionalism in postcolonial Africa must fail
because it approaches the study of judicial power—and, for that
matter, of constitutionalism—primarily as a self-contained legal
phenomenon detached from the social, political, and economic forces
that define the institutional context within which courts must operate.
In that regard, the solution or prescription that the judge-centered
explanation offers to the problem of constitutionalism in Africa is
necessarily limited and primarily technocratic.
Further, the judge-centered view fails, importantly, to query the
empirical legitimacy of constitutionalism and, for that matter, of
judicial review during Africa’s early postindependence period. As a
matter of fact, the judge-centered view is absolutely unconcerned with
matters of legitimacy—except in the narrow legalistic sense. Yet, once
cases like Akoto are situated and analyzed within their relevant
historical, socioeconomic, and political contexts, it becomes clear that,
from the very beginning, the courts, and for that matter
constitutionalism in postcolonial Africa, faced a profound crisis of
legitimacy—a “countermajoritarian difficulty,”92 as it were. As long as
this deficit of legitimacy persisted, neither judicial review nor
constitutionalism had much chance of gaining a firm footing in
Africa.93
To understand the sources of this problem and their implications
for constitutionalism in the early decades of postcolonialism, we must
examine the nature and context of the politics of this period, an
90. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED

(Wilfrid E. Rumble ed., 1995) (espousing the “command theory” of law).
91. See generally A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION (10th ed. 1965) (discussing the role of the common law and courts in the
English constitutional scheme).
92. BICKEL, supra note 23, at 16.
93. See HENRY L. BRETTON, POWER AND POLITICS IN AFRICA 162 (1973) (“Legal
arrangements and dispositions are quite ineffectual if they are utterly devoid of
legitimacy or social relevance.”). Bretton adds, instructively, that, “As commonly
understood, legitimacy derives from proven, verified, popular acceptance of the basic
principles of government, of the broad outlines of a constitution, and of the principal
personages associated with their implementation.” Id.
endeavor which, in Africa’s case, must begin necessarily with the

colonial experience.94 I turn to that subject in the following section.
C. The Colonial Legacy and the Politics of Postcolonial

Development
1. The Challenge of Nation Building and Development
Colonialism in Africa left in its wake immense challenges in
multiple areas. The two most pressing of the challenges, at least in the
estimation of the first generation of African leaders, were nation-
building and social and economic development.
The colonial project in Africa consisted in the coercive
administration as a centralized unit of a collection of disparate peoples,
some of them with long precolonial histories of autonomous existence
and mutual rivalry. With independence won, the foremost challenge
for Africa’s new ruling class was how to “hold together” and mold into
a nation what was, in essence, a patchwork of separate groups
involuntarily placed under a common sovereign by colonial design (or
in some cases, by colonial accident). As Kwame Anthony Appiah has
noted, “Europe left Africa at independence with states looking for
nations.”95
Yet there was no question of undoing the legacy of colonialism.
Within the various colonies, it had become clear even before the
process of decolonization was complete that the African nationalist
elite at the head of the anticolonial resistance—and heirs apparent to
the colonial authorities—had no intention of dismembering the
colonial state and returning to precolonial formations. To all intents
and purposes, the colonial project, however objectionable, was a fait
accompli, and Africa’s anticolonial elites (and postcolonial rulers) had
94. See K.A. BUSIA, THE CHALLENGE OF AFRICA 51 (1962) (“It is impossible to
understand our contemporary [African] society without considering [colonialism’s]
impact.”); Sklar, The Colonial Imprint on African Political Thought, in AFRICAN POLITICS
IN POSTIMPERIAL TIMES, supra note 28, at 208 (“Until the centrality of colonialism, its
‘epochal’ nature, and transformative influences have been deeply and objectively
investigated by African scholars, the demon of colonialism—the psychology of
dependence—cannot be exorcised from African political thought.”)
95. KWAME ANTHONY APPIAH, IN MY FATHER’S HOUSE: AFRICA IN THE PHILOSOPHY
OF CULTURE 162 (1992). See also Arnold Rivkin, The Role of Institution-Building in Africa,
in NATIONS BY DESIGN: INSTITUTION BUILDING IN AFRICA 8 (Arnold Rivkin ed., 1968)
(quoting a statement by the first President of Ivory Coast, Houphouët-Boigny:
“Independence has only bequeathed statehood to us; it remains for us to create nations
transcending the tribal level . . . .”) (internal citation omitted).
every intention of holding on to the colonial inheritance.96 The

question was how to accomplish that task.
Compounding the challenge of nation-building was the massive
deficit in social and economic development that was passed on to the
new African elites along with the colonial state. According to Kwame
Appiah, “The colonial states were made for raising—not spending—
government revenues.”97
[O]nce roughly half of the colonial government revenues had been
spent on paying for expatriate bureaucrats and another sixth had been
spent on servicing loans raised for capital expenditures, many of which
were in the interest of control rather than development, there was little
left for the cultivation—through education, health, and social
services—of human capital.98
In consequence, Africa’s new states emerged from colonialism with
monumental needs in health, education, domestic industrial output,
employment, public infrastructure, and indigenous control of the
economy.99
For Africa’s founding elites, the urgency of the twin challenges of
nation building and development assumed the character of a national
emergency. The metaphor of war—“war against illiteracy,” “war
against disease”—was one that was commonly invoked by
postcolonial African governments to underscore this fact. The crucial
question, however, remained what model of state and economic
organization would best meet this challenge. Various factors conspired
to make the authoritarian model the easy choice.
Within the founding generation, the dominant opinion (but one
that was contested even then) was that multiparty democracy and
decentralization of power would encourage partisan mobilization and
resurrection of those precolonial identities and multiple sovereignties
that colonialism had suppressed but never completely extinguished:
“[t]he theory of the single-party regime as the authentic embodiment
of the aspirations of nationalism achieved wide currency.”100
Demands for “federalism” or “a reasonable degree of provincial
devolution”101 to accommodate postcolonial society’s disparate
96. CHRISTOPHER CLAPHAM, AFRICA AND THE INTERNATIONAL SYSTEM: THE POLITICS
OF STATE SURVIVAL 35 (1996).
97. APPIAH, supra note 95, at 164.
98. Id.
99. See B.O. NWABUEZE, CONSTITUTIONALISM IN THE EMERGENT STATES 99 (1973).
100. Crawford Young, The Third Wave of Democratization in Africa, in STATE,
CONFLICT, AND DEMOCRACY IN AFRICA, supra note 8, at 286.
101. W. ARTHUR LEWIS, POLITICS IN WEST AFRICA 55 (1965) (describing and criticizing
the nature and politics of the postcolonial African state).
territorially based subnational communities were summarily dismissed

as secessionist-inspired “tribalism,” as were proposals that traditional
authorities be integrated into the local government system, as many
had been co-opted to do under the English colonial policy of “indirect
rule.”102
The African elites’ preference for centralized power in the name
of nation-building was reinforced on the economic side by the
argument that the absence, at the time of independence, of an
indigenous capitalist class with the means or scale of operation
necessary to lead rapid economic development103 left the state no
choice but to step into the void. State-led development, which meant
central planning, thus became the preferred model of economic
organization.
On both the nation building and economic organization sides of
the issue, the preference of African elites for command-and-control
solutions had behind it the added authority of influential academic
opinion in the West. The scholarly works of such respected Western
social scientists as Samuel Huntington,104 Immanuel Wallerstein,105
and Thomas Hodgkin,106 all provided powerful and positive citations
for the practitioners and supporters of one-party rule and “strong state”
ideology in postcolonial Africa. The few dissenting, but prescient,
voices that warned Africa’s new elites to shun the path of
authoritarianism or unitary centralism were ignored.107
102. See Marina Ottaway, Ethnic Politics in Africa: Change and Continuity, in STATE,
CONFLICT, AND DEMOCRACY IN AFRICA, supra note 8, at 302-03 (“Newly independent African
countries . . . vehemently rejected ethnic nationalism as a threat to the state and continued
modernization of Africa. . . . [I]f Africans did not identify exclusively with the state to which
they belonged, they were considered primitive.”).
103. The New Partnership for Africa’s Development (NEPAD), The New Partnership
for Africa’s Development (NEPAD) in Brief 5 (Oct. 2001), available at http://www.nepad.
org/2005/files/documents/inbrief.pdf (“At independence, virtually all the new states were
characterised by a shortage of skilled professionals and a weak capitalist class, resulting in a
weakening of the accumulation process.”).
104. See SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES 175
(1968) (arguing that some modernizing states with traditional value systems cannot transition
to a system in which authority is “derive[d] from representative sources”).
105. See IMMANUEL WALLERSTEIN, AFRICA: THE POLITICS OF INDEPENDENCE 89
(1961) (“[I]f citizens tend regularly to question not only the wisdom of the government’s acts
but its very right to engage in these acts, what can those who are interested in creating a
nation do to enhance this acceptance, to diminish this questioning of the very basis of
authority?”).
106. See THOMAS HODGKIN, AFRICAN POLITICAL PARTIES: AN INTRODUCTORY GUIDE
160 (1961) (“The need to carry out a wide range of new and difficult tasks tends further to
stimulate the reinforcement of the central power.”).
107. Prominent among the “dissenters” was Nobel Prize economist W. Arthur Lewis.
A Caribbean of African descent, Arthur Lewis advised a number of African governments in
For postcolonial states, proof of the normative superiority of the

command-and-control model of economic organization was
supposedly self-evident in the big postwar leaps in economic growth
and industrialization that were, at the time, associated with the
countries of the Soviet bloc and China.108 From the West, the
impressive post war reconstruction of Europe under the Marshall Plan
and the success of New Deal interventionism in rescuing the United
States from the Depression went to reinforce the belief, widespread in
postcolonial society, that the state had the superior capacity—and a
duty—to organize and lead economic development.
The decision in favor of authoritarianism was made easier by the
fact that, with that choice, Africa’s founding elites would not have to
reinvent the wheel. The colonial model and its institutional bequest
were readily at hand. Colonialism had left “a machinery of
government in working order,”109 thus obviating the need to create a
new one from scratch. Even more important, the infrastructure and
example of the colonial state, with its unitary, centralized executive
(the colonial governor), centralized bureaucracy, subordinate courts,
compliant chiefs, and the exclusion of an organized opposition party,
almost perfectly answered the needs of Africa’s founding elites.
Yet retention of the institutions of the colonial state was not
without its contradictions. In particular, it had profound implications
for the rule of law—and thus, the role of the courts—in the new
postcolonial project. The tension pitted the colonial legal order against
the new constitutions bequeathed to the sovereign African state on the
eve of independence.
2. The Colonial Legal Order in the Service of the Postcolonial State

The colonial state in Africa was par excellence a rule by law
state, as opposed to a rule of law state. Within the colony, the colonial
governor had power to pass and enforce “whatever legislation he
thought was right in the public interest.”110 Law in colonial Africa was
primarily a mechanism for asserting, enabling, and legitimating state
power, not for constraining or limiting it. The object of colonial law
the very early years after independence. His observations and views about postcolonial
African politics are summed up in his Politics in West Africa. LEWIS, supra note 101.
108. See id. at 164.
109. CLAPHAM, supra note 96, at 35.
110. G.E. METCALFE, GREAT BRITAIN AND GHANA: DOCUMENTS OF GHANA HISTORY
1807-1957, at 640 (1964) (quoting a 1934 statement of the Secretary of State for the
Colonies).
was to control and exploit the material, cultural, and human resources
of the colony to further the purposes of imperial policy.
Instrumental to the execution of the colonial project were the
colonial courts, including the “native” courts that were sanctioned by
the colonial authorities to enforce “customary law.”111 The judiciary in
colonial Africa was, in fact, the handmaiden of the colonial
administration. As Ghana’s first Prime Minister Kwame Nkrumah
would later recall, “the judiciary and the executive under a colonial
regime are one and the same thing.”112 The colonial judge wore
multiple hats. Among other things, he served as a close adviser to the
governor, assisting the latter in the formulation of policy and drafting
of legislation for the colony.113 The colonial chief justice acted as
governor during the latter’s absence.114 Moreover, colonial judges,
including the colonial chief justice, enjoyed no security of tenure,
holding office, as they did, “at pleasure.”115 Colonial courts were also
without power to countermand or review decisions or decrees of the
colonial governor. In fact, the governor had power, by decree, to deny
access to the colonial courts for persons seeking to challenge a
legislative or executive act of the colonial administration.116 Even the
111. See MAHMOOD MAMDANI, CITIZEN AND SUBJECT: CONTEMPORARY AFRICA AND
THE LEGACY OF LATE COLONIALISM 110 (1996). Mamdani notes that, as with colonial public
law, “[c]ustomary law was not about guaranteeing rights; it was about enforcing custom. Its
point was not to limit power, but to enable it.” Id.
112. KWAME NKRUMAH, GHANA: THE AUTOBIOGRAPHY OF KWAME NKRUMAH 123
(1957).
113. Fui S. Tsikata, Towards an Agenda of Constitutional Issues Under the Kwame
Nkrumah Regime, in THE LIFE AND WORK OF KWAME NKRUMAH 210 (Kwame Arhin ed.,
1993) (“[T]he colonial judiciary, which began as a key weapon for the extension of colonial
rule, remained for practically all its life an active part of the machinery of colonial
government . . .; its members were active in the formulation of colonial policy and
legislation.”); see also GEOFFREY BING, REAP THE WHIRLWIND: AN ACCOUNT OF KWAME
NKRUMAH’S GHANA FROM 1950 TO 1966, at 204 (1968) (“In British Colonial affairs, at least
until the first quarter of this century, the most important political figure in the administration
was the Chief Justice. . . .”).
114. See Jill Cottrell & Yash Ghai, Between Two Systems of Law: The Judiciary in
Hong Kong, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES
FROM AROUND THE WORLD 209 (Peter H. Russell & David M. O’Brien eds., 2001) (“As
recently as 1978, the new chief justice of Hong Kong had . . . occasionally acted as
governor.”); WIDNER, supra note 27, at 58 (As late as the 1950s, “it was common practice for
judges to draft ordinances on behalf of the attorney general and the legislature and for the
chief justice to stand in for the governor when he went on leave.”).
115. Terrell v. Sec’y of State for the Colonies, [1953] 2 Q.B. 482, 492-500 (U.K.)
(stating that colonial judges hold office “at the pleasure of the Crown,” and thus the Act of
Settlement does not apply to them); BING, supra note 113, at 205; see also WIDNER, supra
note 27, at 58.
116. BING, supra note 113, at 221; see also Ocansey v. Buernartey, [1921-25] G.C.C.R.
178, 179 (Div. Ct., Gold Coast) (holding that court’s jurisdiction to adjudicate a claim of title
to the position of Chief had been “take[n] away from the [c]ourts”).
governor’s point man at the local level, the legendary district

commissioner, possessed both judicial and executive powers in local
administration.117
The role played by law and the courts in the colonial project
would ultimately inform and shape African nationalist resistance to
colonial rule.118 Recognizing that law and the courts served as tools of
colonial power, Africa’s nationalist leaders took an alternative path in
their pursuit of freedom and justice—the path of political agitation and
mobilization. Thus the struggle against colonial rule in Africa, which
began to gather popular momentum in the period after the Second
World War, was essentially a struggle of politics against law. For
colonized Africans, to risk criminal prosecution and imprisonment,
even martyrdom, through positive defiance of colonial law became an
important political goal and weapon in the anti-colonial resistance. In
Ghana (then the Gold Coast), for example, the term “Prison Graduate”
was coined by nationalists to describe one who had experienced life in
the jails of the British colonial authorities on account of his or her
anticolonial activities.119 It quickly became a badge of honor among
colonial subjects in the Gold Coast.120
For Africa’s founding generation, the eventual triumph of
anticolonial politics over colonial rule not only represented the triumph
of politics over law, but also affirmed, in their view, the superior
legitimacy and efficacy of the former over the latter. Perhaps even
more significant for the future course of events, their personal
experience of law and of judicial power under colonial rule led
Africa’s founding elites to view the courts “primarily as the institution
through which a government, Colonial or otherwise, imposed its
policy behind a cloak of magisterial propriety.”121
Yet, whereas the colonial legal regime had not concerned itself
with rights or instilled in judges or African politicians a respect for
rights or legal limitations on governmental power, the new
constitutions drafted by departing colonizers, and which would be
passed on to Africa’s incoming governments on the eve of
independence, envisioned a postcolonial state of a rather different
117. See BING, supra note 113, at 299.

118. See NKRUMAH, supra note 112, at 123 (“I had long since come to learn that in the
colonial struggle, when faced with a situation of this sort [namely, the prospect of criminal
prosecution and imprisonment], it is not a question of justice.”).
119. See BING, supra note 113, at 220.
120. See id.
121. Id. at 225 (relating conversation with Ghana’s first Minister of the Interior).
character.122 In contrast to the colonial order, the newly independent

African state was to be, belatedly and by constitutional fiat, a rule of
law state, one in which politics and the exercise of political power
would be constrained by formal checks and balances, including an
independent judiciary, regional assemblies, opposition parties, and, in
some cases, a bill of rights.123
Historian Basil Davidson has identified the continuities and
contradictions between the colonial legal order and the new
constitutional forms as one of many conflicts between “theory” and
“fact” that would bedevil the postcolonial African state:
Theory, as the new nation-states took shape, said that government was
to be democratic. . . . [f]act said that colonial powers had invariably
ruled by decree, and decree had been administered by an authoritarian
bureaucracy to which any thought of people’s participation was
damnable subversion.
Fact went on to say that the new nation-states inherited the
dictatorship and not the democracy, and that anyone who thought it
wasn’t so had better have his head examined.124
This contradiction was exacerbated by the fact that, alongside the
new constitutional precept, the new African state had also received as
part of its colonial bequest the authoritarian legal order—the full
panoply of colonial legislation, orders, ordinances, by-laws, and
judicial precedents—upon which colonial authority had been based.
Although the new constitution may have contained the obligatory
supremacy clause, asserting the supremacy of the constitution in cases
of conflict between a constitutional precept and a preexisting law, the
latter—the “received law”—was still cloaked with a presumption of
constitutionality and thus remained in force until affirmatively
repealed or overturned.125 In effect, the African state that emerged
from colonialism combined within it an “authoritarian-democratic
paradox.”126
Apart from functioning as the default legal regime (because it
was that which Africa’s postcolonial elites and citizens alike were
122. See Dale, supra note 31, at 72-73 (describing the key features of the “Whitehall”
constitutions bequeathed to Britain’s former African colonies).
123. Y.P. Ghai, Constitutions and the Political Order in East Africa, 21 INT. & COMP.
L.Q. 403, 412 (1972).
124. BASIL DAVIDSON, THE BLACK MAN’S BURDEN: AFRICA AND THE CURSE OF THE
NATION-STATE 208 (1992).
125. Robert B. Seidman, Constitutions in Independent, Anglophonic, Sub-Saharan
Africa: Form and Legitimacy, 1969 WISC. L. REV. 83, 84.
126. Peter J. Schraeder, Political Elites and the Process of Democratisation in Africa,
in THE DEMOCRATISATION OF DISEMPOWERMENT: THE PROBLEM OF DEMOCRACY IN THE
THIRD WORLD 44, 46 (Jochen Hippler ed., 1995).
accustomed to on account of the colonial experience), the inherited

(subconstitutional) legal order, not the new constitutions, “offered
African elites real power and the bureaucratic machinery with which
to exercise it effectively.”127
The problem with the colonial order, however, was that it had
been conceived under colonialism primarily for purposes of
“domination rather than legitimacy.”128 Its continued deployment in a
postcolonial era by the same elites who had fought against it could not
be justified or defended on the same grounds. In the end, justification
for retaining and enforcing the most authoritarian aspects of the
colonial legal order came instrumentally by the name “development.”
The ideology of “development” would provide the new legitimating
rhetoric for the authoritarian legal order and, in time, challenge the
legitimacy of constitutionalism in postcolonial Africa.
3. The Death of Constitutionalism in Africa

In 1964, Tanzania’s Julius Nyerere defended his introduction of a
preventive detention law with a classic statement of the “development
first” ideology: “Development must be considered first . . . . Our
question with regard to any matter—even the issue of fundamental
freedom—must be, ‘How does this affect the progress of the
Development Plan?’”129 The primacy of development on the agenda
of postcolonial Africa was indeed affirmed by the world community
when the period from 1960 to 1970, coinciding with the emergence of
sovereign states in Africa, was declared the first UN Development
Decade.130
In the beginning, Africa’s ruling elites conceded that
“development first” might place freedom in jeopardy. In time,
however, development and freedom would be conceptually
harmonized. However, the freedom that mattered in this case was not
the constitutionalist’s “negative” freedom; what mattered as
freedom—and as development—was “freedom from poverty, freedom
from illiteracy and ignorance, freedom from ill-health, and freedom
from the hardship and cruelty which exist when a society lacks a basic
127. Okoth-Ogendo, supra 18, at 71.

128. APPIAH, supra note 95, at 164.
129. DENNIS AUSTIN, POLITICS IN AFRICA 69 (2d ed. 1984) (quoting Julius Nyerere,
President of the United Republic of Tanz, Address at the Opening of the University in Dar es
Salaam (1964)).
130. United Nations Development Decade: A Programme for International Economic
Co-Operation, G.A. Res. 1710, 17 U.N. GAOR, 16th Sess. (Dec. 19, 1961) (XVI).
minimum of social security and social services.”131 These being

“positive” freedoms, they carried with them an implied duty on the
part of the state to act affirmatively to create the conditions necessary
to make them realizable.
Constitutionalism in postcolonial Africa had thus been put on the
defensive. But there were more affirmative efforts to discredit and
delegitimize it. Proponents of “development-first constitutionalism”
disparaged its liberal-democratic rival as concerned almost exclusively
with individual civil and political rights (negative freedom, that is),
and not with social and economic rights (positive rights). This
distinction was held up as evidence that constitutionalism had a bias
for the “bourgeois” rights of a “privileged few,” at the expense of the
livelihood concerns of the African masses.132 Constitutionalism, with
its focus on restraining governmental power, was, according to its
detractors, a needless “brake” on Africa’s development ambitions.
Law in Africa, it was argued, needed to be an accelerator, not a brake,
to the achievement of “people-centered” national development goals.
It was a view that did not fail to persuade even those who at other
times had expressed genuine concern about the state of personal
freedom in Africa. Thus, for example, Professor Seidman thought it
unsatisfactory that “not one of the English-speaking African
constitutions . . . addresses itself directly to the issues of economic
development, although they are by far the most important problems
faced by African governments.”133 Interestingly, successor
constitutions installed by African elites whose rhetoric proclaimed a
“people-centered” ideology did not address issues of development or
incorporate justiciable positive rights either.
The notion, implicit in the independent constitutions, that African
managers of a sovereign state would be limited in their exercise of
power where European colonialists had not, provided Africa’s
postcolonial elites additional grounds to discredit the idea of
constitutionalism as a neocolonial imposition designed to keep Africa
in subservience.134 As Ghana’s first Attorney General (himself British)
131. Denis V. Cowen, African Legal Studies—A Survey of the Field and the Role of the
United States, 27 LAW & CONTEMP. PROBS. 545, 562 (1962).
132. Eboe Hutchful, Reconstructing Political Space: Militarism and Constitutionalism
in Africa, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY
WORLD, supra note 18, at 224.
133. Robert B. Seidman, Law and Economic Development in Independent, English-
Speaking, Sub-Saharan Africa, 1966 WISC. L. REV. 999, 1068.
134. See P. Manduna, Minister of Justice & Constitutional Dev., Address at the African
Renaissance Conference on Constitutionalism (Nov. 16, 1999), available at
http://www.polity.org.za/html/govdocs/speeches/1999/sp1116a.html.
would later ask: “If denial of access to the courts was justified in 1948
[when European colonialists were in charge] why was it wrong in
1957 [once Africans assumed full control of the state]?”135 The fact
that the new constitutional forms had been modeled after those of
known Western democracies made it easier still to delegitimize them
as “alien” to African “traditions” and circumstances.
The decision by Africa’s postcolonial elites to delegitimize
constitutionalism and, instead, rest their legitimacy on
supraconstitutional values necessarily placed the African judiciary in a
rather difficult position, to say the least. The fact that the purveyors of
the anticonstitutionalist doctrine were the people’s idolized Founding
Fathers themselves, leaders like Osagyefo (“Victorious Warrior”)
Kwame Nkrumah (Ghana), Nyerere (Tanzania’s Mwalimu, or teacher),
Mzee (“Esteemed Elder”) Jomo Kenyatta, and Kenneth Kaunda
(Zambia), compounded the difficulty.136 Credited with leading their
peoples from colonialism to sovereign statehood, this first generation
of African leaders came to possess a tremendous amount of
“charismatic authority,” providing them with a reservoir of additional
legitimacy with which to underwrite their every agenda.137 As
Professor Nwabueze has noted, the Founding Fathers possessed
exclusive “founder rights,” which gave them implicit immunity from
personal blame for their many errors.138
These various sources of supraconstitutional legitimacy for
Africa’s political elites created for the African judiciary what was, in
essence, a “countermajoritarian difficulty,” albeit of an unconventional
kind, as it had little to do with any claim by the political elites to
superior electoral legitimacy. Inherent legitimacy deficits in the
judiciary further weakened its position. The postcolonial judiciary
was, after all, a holdover judiciary, one that had been created originally
for the express purpose of implementing the colonial project. By
virtue of its identification with the implementation of the colonial
enterprise, the judiciary had a (recent) history of doctrinal opposition
to the anticolonial or nationalist struggle. As one commentator
correctly observed with regard to the courts in postcolonial East
Africa, “the courts were commissioned to perform a function within
135. BING, supra note 113, at 222.

136. See BBC World Serv., The Nation State in THE STORY OF AFRICA: INDEPENDENCE
ch. 14, http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/14chapter4.shtml (last
visited Mar. 28, 2006) (“[T]he African leader himself became more than a leader, he became
symbolic of something bigger, which brought all people together.”).
137. See MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 363-73
(A.M. Henderson & Talcott Parsons trans., Talcott Parsons ed., Free Press 1964) (1924).
138. NWABUEZE, supra note 99, at 302-03.
the new Governments of Kenya, Tanzania, and Uganda which they

had not performed in Britain itself, nor in East Africa during the
colonial period, nor, in any analogous sense, in the vast majority of
traditional African societies.”139
It did not help that a fair number of expatriate (European) judges
continued to serve, on contract, in the postcolonial judiciary,140 or that
the procedures, formalities, language, and other paraphernalia of the
courts (including, in common law Africa, the white wig of the English
barrister) made them appear socially disconnected from the lives and
concerns of the majority of Africans.141 As far as the majority of
Africans was concerned, the courts existed only to enforce the criminal
law against the poor and socially disadvantaged.
To put all of this in a broader perspective, it is important to recall
that the African judiciary was far from alone in facing a crisis of
legitimacy within postcolonial society. Other institutions and groups
within the African state and society, including some with fairly
credible claims to social legitimacy, suffered similar subordination.
These included parliaments, opposition parties, chiefs, the academic
community, and the legal profession. Even before Africa’s judiciaries
had been neutralized, these other potential holders of countervailing
power had been rendered impotent. The whole process of
reconfiguring legitimacy within the postcolonial state and society had
but one beneficiary: the President. In Ghana, for example, immediately
following independence, Nkrumah moved quickly to dispense with
regional assemblies which had been established under the
independence constitution to prevent the central government from
overriding certain local interests.142 Nkrumah also acted speedily to
deprive Ghana’s historically powerful chiefs of their customary
economic power by bringing all “stool” lands143 under the
management and control of the President.144 With the 1960
Constitution, he gained parallel law-making power as First President,
enabling him to circumvent and supersede parliament whenever he
139. Steven B. Pfeiffer, The Role of the Judiciary in the Constitutional System of East
Africa, 16 J. MOD. AFR. STUDS. 33, 37 (1978) (internal citations omitted).
140. Id. at 44 n.1 (“It must be remembered that as the Executive Council, the
Administration, and the Legislative Council were gradually Africanised during the latter
stages of the colonial period, the judiciary remained, even after independence, the preserve of
highly professional and, it could be argued, socially isolated Europeans.”).
141. See id. at 33-34.
142. BENNION, supra note 41, at 64-66.
143. See id.
144. HARVEY, supra note 19, at 104-19.
deemed necessary.145 Other African presidents effected similar power

grabs.
Under these circumstances, when nearly all other institutions
with potential countervailing power (and with far superior social
legitimacy than the judiciary) had been subdued by an executive with
a huge reservoir of supraconstitutional legitimacy, it is unrealistic to
expect the “weakest” institution within the postcolonial state—the
judiciary—to constrain state power. Significantly, this problem would
remain even after Africa’s politicians and governments had ceased to
honor the democratic imperative of regular competitive elections, as
life presidents, one-party states, and military juntas came to dominate
the political landscape. The judiciary’s “countermajoritarian
difficulty” remained despite these changes in regime form, because
successive political elites continued to ground their legitimacy, not in
elections or constitutions, but in supraconstitutional bread and butter
values tied directly to the material needs and concerns of the average
citizen. As long as this situation persisted, the dominant judicial
attitude remained one of abstention or deference to the managers of the
African state. The notion that some aspect of the postcolonial
“development” project, including the manner of its implementation,
could be constrained by a “higher law” enforceable by the courts was
simply out of the question. As Jennifer Widner has observed, “[t]he
nationalists monopolized the label ‘progressive’. [Judicial] [a]ctivism
on behalf of basic rights could seem to interfere with the bold plans of
[Africa’s] new governments.”146
It would be difficult not to notice the parallels between the
foregoing narrative and developments during the New Deal era and
other national emergencies in the United States. These moments and
periods in U.S. history, characterized by extraordinarily high levels of
popular support for bold and arguably extra-constitutional presidential
action, have often occasioned a significant rebalancing of power in
favor of the federal government and the President, usually with the
acquiescence of the judiciary. In fact, Africa’s political elites did not
miss the opportunity to make whatever comparison with the New Deal
they could muster. Thus, Tanzania’s Presidential Commission on the
Establishment of a Democratic One Party State invoked the New Deal
to justify a decision to omit a bill of rights in its proposed interim
constitution:
145. BENNION, supra note 41, at 271-72.

146. WIDNER, supra note 27, at 56.
[Tanzania] has dynamic plans for economic development. These

cannot be implemented without revolutionary changes in the social
structure. In considering a Bill of Rights in this context we have in
mind the bitter conflict which arose in the United States between the
President and the Supreme Court as a result of the radical measures
enacted by the Roosevelt Administration to deal with the economic
depression in the 1930’s. Decisions containing the extent to which
individual rights must give way to the wider considerations of social
progress are not properly judicial decisions. They are political
decisions best taken by political leaders responsible to the electorate.147
The Ghanaian authorities under Nkrumah similarly leaned on
Roosevelt’s unsuccessful “court packing” plan as precedent when they
decided to amend the constitution in 1964 to allow the president to
remove judges at his pleasure:
In the United States of America, the President has the power to
“pack” the Federal Supreme Court, that is, to appoint new Judges of his
liking. He also has the power to retire Judges before the stipulated
retiring age. These were powers which President Franklin Delano
Roosevelt used very effectively in the mid-nineteen-thirties when he
was fighting for his New Deal Programme. This is what the proposed
amendment seeks to do.148
The new managers of the postcolonial state in Africa were clearly
in no mood for a judicialization of any aspect of what to them was all
“politics.” Indeed, Africa’s rulers did not hesitate to dismiss or
discipline those judges who occasionally took their judicial oaths “too
seriously” and thus “stepped out of line” in politically sensitive cases,
as did happen to various judges, including a chief justice, in
Nkrumah’s Ghana. On their part, Africa’s judges of the same era must
have been keenly aware of their own limitations. Possessing neither
the requisite socio-political legitimacy nor influential allies within
postcolonial society, Africa’s judges could do little to advance a
politically discredited constitutionalism.
Domestic forces aside, prospects for constitutionalism in
pre-1990 Africa faced an unhelpful external environment. In the
Cold War rivalry and maneuvering to secure and extend spheres of
influence in Africa, neither the Soviet bloc nor the United States
and its Western allies found it helpful to their interests to apply a
democratic or constitutionalism “litmus test” to their selection of
client states or allies in Africa. Moreover, the global human rights
movement was not nearly as strong or influential then, or even as
147. Quoted in Seidman, supra note 125, at 105.

148. Quoted in BRETTON, supra note 64, at 91-92.
concerned about developments in Africa (outside of apartheid

South Africa), as it is today. At the same time, the then near-
universal recognition of a robust, state-centric conception of
sovereignty served to shield matters of domestic political
governance from the formal scrutiny or sanction of international
actors. In short, prior to the 1990s the promotion or defense of
constitutionalism was noticeably absent not only from the agenda
of Africa’s governing elites but also of those international and
multilateral actors and constituencies that could have exerted a
measure of positive influence over African governments.
Yet, in African legal communities the idea persists that
constitutionalism in Africa could have been saved had the judges been
bold spirits, and not timorous souls. This belief may be due to the
persistent tendency, particularly noticeable among common law
lawyers outside the United States, to associate the genesis and practice
of judicial review—and of the judicial role in constitutionalism—with
a certain mythologized and decontextualized view of Marbury.149
This view of Marbury sees Marshall’s opinion as a solitary act of
judicial heroism and resolve, one that supposedly created from whole
cloth a powerful institution to which executives and legislatures were
bound to submit. Viewed from this perspective, one can understand
why, to some, judicial review appears to depend on little more than the
initiative of “bold spirits” on the bench.
American constitutional history, however, amply demonstrates
that judicial review is profoundly political and inherently insecure.150
Indeed, the persistent trend throughout U.S. history is not one of
popular acquiescence in unpopular rulings by the Supreme Court, but
of popular outrage and resistance followed by political pressures to
neutralize or undo the impact of the court’s rulings—efforts that have
been generally successful over the long run. Recounting this history in
a recent study, Larry Kramer notes that ‘popular constitutionalism was
the clear victor each time matters came to a head.”151
149. See, e.g., Justice Michael Kirby, Justice of the High Court of Austl., Comparative
Constitutionalism—An Australian Perspective, Address at the University of Chicago Center
for Comparative Constitutionalism, Conference on Constitutionalism in the Middle East (Jan.
23-25, 2004), available at http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_23jan04.html
(describing Marbury as involving a “bold assertion . . . of the power of judicial review” and
thus “a defining moment for modern constitutionalism”).
150. See, e.g., Jack Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26
CARDOZO L.R. 101, 130 (2005) (“[U.S.] Supreme Court decisions tend to match the views of
national political majorities—and particularly the views of national elites.”).
151. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM
AND JUDICIAL REVIEW 207 (2004).
Regarding the Marshall Court itself, Louis Henkin has observed

that the Court “did not ‘take on’ the most powerful political forces, but
built judicial authority principally by prescient betting on the winning
political side—the nation as against the states.”152 At the time of
Marbury, the Marshall Court, composed of Federalist appointees, was
in a strategically weak position and so adroitly refrained from issuing
an order that President Jefferson, whose party held a majority of the
seats in Congress, could—and very likely would—have ignored with
impunity.153 Despite the Court’s assertion that the plaintiff had
suffered a legal wrong, the Marbury judgment could offer him no
remedy, as the Court declared itself without jurisdiction to entertain the
suit.154 In the end, Marbury established the principle of judicial
review but “was too weak to exercise it.”155 In fact, Marshall’s
proclamation about judicial review notwithstanding, his Court did not
once use the power it had asserted in Marbury to strike down a single
federal law.156 Nor did the Marshall Court exercise its power to
protect individual rights.157 As a matter of fact, the U.S. courts did not
become seriously involved in the latter enterprise “until after the Civil
War, indeed much later, after their power had been established”158 —
and, one might add, after domestic social movements and Cold War
politics had forced the matter of rights embarrassingly onto America’s
national political—and, for that matter, its judicial—agenda.159
In short, the failure of postcolonial constitutionalism in Africa,
properly considered in an historical as well as a comparative context,
cannot reasonably be blamed on Africa’s enfeebled judiciaries.
Judicial review is not a self-contained, self-sustaining power detached
from the social and political forces of the moment. During the period
under review, “[t]he structure of the [African] political system was
inauspicious for the development of independent courts,”160 and for
152. LOUIS HENKIN, THE AGE OF RIGHTS 175 n.* (1990).

153. See Levinson, supra note 2, at 573.
154. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
155. Klarman, supra note 2, at 1123. The Jefferson Administration, which had made
no secret of its hostility to Marshall and his Federalist-packed Court, in fact boycotted the
court proceedings in Marbury. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL
LAW § 1.2 (6th ed. 2000). With talk of impeachment of Supreme Court justices in the air, the
Court played it safe. Klarman, supra note 2, at 1125 n.60.
156. Klarman, supra note 2, at 1125.
157. HENKIN, supra note 152, at 175.
158. Id. at 175 n.*.
159. See Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV.
61, 62 (1988) (“At a time when the U.S. hoped to reshape the postwar world in its own
image, the international attention given to racial segregation was troublesome and
embarrassing.”).
that matter, of credible judicial review. A failure on the part of Africa’s

contemporary political and constitutional reformers to heed this lesson
or to come to terms with the inherent limitations of judicial power is
sure to misguide current efforts to reestablish constitutionalism in
Africa’s emerging democracies.
III. PROSPECTS FOR CONSTITUTIONALISM IN CONTEMPORARY AFRICA

The momentous decision which Africa’s founding elites
made at independence to pursue development and nation building
on the basis of a centralized and authoritarian model failed, in the
end, to yield the promised payoff. By as early as the 1970s (even
earlier in many cases), signs of an emerging African crisis had
become manifest in the form of political instability, economic
stagnation, personal rule, and the gradual decay of the formal
institutions of state. As the 1990s approached, the verdict of
thirty-something years of exclusionary and authoritarian politics
was finally out, and from one African country to the next, the
legacy, almost uniformly, was one of economic bankruptcy, social
rift, and mass poverty and despair. Decades of bad government
and failed promises, purchased at substantial cost to political and
civil liberties, had finally exhausted the patience of even the most
long suffering of Africans. The postcolonial African state had
become, in the eyes of all but a tiny elite of its citizens, a predatory
state. Basil Davidson sums it up best: “The [African] state was not
liberating and protective of its citizens, no matter what its
propaganda claimed: on the contrary, its gross effect was
constricting and exploitative, or else it simply failed to operate in
any social sense at all.” 161 The result was a further erosion of what
little remained of the legitimacy of the postcolonial state, its
managers, and their projects.
With the euphoria and optimism of the early post-colonial
years long gone, advocates for “change” could now count on the
ready support of a large population of aggrieved and disenchanted
citizens. Domestic pressure for political reform began to express
itself openly. The postcolonial African state stood in desperate
need of relegitimation. And consensus soon coalesced behind the
view that “for better or for worse, Africa is condemned to
democracy as the only viable framework within which it must seek
161. DAVIDSON, supra note 124, at 290.

to promote political reforms and economic development.” 162 Thus

was born contemporary Africa’s “democracy movement”—or what
optimistic observers of Africa have called “Africa’s second
liberation.”
By the mid 1990s the political landscape of Africa had
undergone remarkable change. Whereas “in 1989, 29 African
countries were governed under some kind of single-party
constitution, and one-party rule seemed entrenched as the modal
form of governance,” by 1994 “not a single de jure one-party state
remained.” 163 In country after country in common law Africa,
reform advocates and regime opponents began to press for a
renegotiation of the terms and ground rules for political
governance, often seizing the initiative from reluctant, yet
politically vulnerable and weakened, incumbents. Postcolonial
Africa’s first ever prodemocracy constitutional moment had finally
arrived, and the 1990s would be characterized by vigorous
constitution making from one African country to the other.
In the contemporary struggle to end authoritarianism in Africa,
however, democracy has generally upstaged constitutionalism, both as
the idea around which support for change is mobilized and as the goal
that is sought to be achieved.164 The reasons behind this are varied.
First, the term “democracy” has become part of the popular
vocabulary and discourse among Africans in a way that “constitutiona-
lism,” “rule of law,” and “limited government” have not. In fact,
within Africa’s newly democratizing societies, notably Ghana, where
once there was no word for “democracy” in any of the indigenous
languages, the linguistic gap has been filled with creative and often
very self-explanatory coinages that are popularized through the
medium of private radio. Constitutionalism is yet to be similarly
indigenized linguistically.165 Second, regime opponents in Africa have
162. Adebayo Olukoshi, State, Conflict, and Democracy in Africa: The Complex
Process of Renewal, in STATE, CONFLICT, AND DEMOCRACY IN AFRICA, supra note 8, at 457;
see also DAVIDSON, supra note 124, at 315 (“[T]he modern [African] state can become stable
and progressive only in the measure that it wins back for itself the popular legitimacy that it
has lost or never sufficiently possessed, and that it can do this only by processes of
participatory democracy.”).
163. Michael Bratton and Nicolas Van de Walle, Democratic Experiments in Africa:
Regime Transitions in Comparative Perspective 8 (1997).
164. See, e.g., Stephen N. Ndegwa & Ryan E. Letourneau, Constitutional Reform, in
DEMOCRATIC TRANSITIONS IN EAST AFRICA 83 (Paul J. Kaiser & F. Wafula Okumu eds.,
2004).
165. The fact that constitutionalism—or, for that matter, democracy—may not
translate directly into an equivalent term in another language does not, of course, imply that
constitutionalism as praxis does not exist in the latter culture. Ample research and
usually focused their energies on removing a particular authoritarian

regime, not on pressing immediately for reforms to limit and restrain
the power of the state for all time. As a result, their primary demand
has been the democratization of access to power. Third, authoritarian
incumbents, realizing that elections are relatively easy to win or
manipulate with the advantage of incumbency, have often yielded to
demands for democratization and, by winning the ensuing elections,
neutralized regime opponents and delayed significant reform.
In a sense, then, it is disappointment with the initial results of
transitional elections that leads reform-minded activists in Africa to
focus on constitutionalism. Moreover, the conceptual boundary
between democracy and constitutionalism166 (and the limited purview
scholarship documents a tradition and practice of constitutionalism within particular

traditional political systems in Africa. One of the best documented cases involves the Akan
of Ghana. In 1911, R.S. Rattray recorded, for example, that among the Ashanti “[a] Chief’s
duties and limitations are strictly defined by a whole series of instructions (which are publicly
recited before him on the occasion of his enstoolment).” R.S. RATTRAY, ASHANTI LAW AND
CONSTITUTION 81-82 (Negro Univs. Press 1969) (1911). Among the customary injunctions
imposed on the Chief is “the admonition never to act without the advice and concurrence of
his councillors, who included the Queen Mother.” Id. at 82; see also K.A. BUSIA, THE
POSITION OF THE CHIEF IN THE MODERN POLITICAL SYSTEM OF ASHANTI 21-22 (1951); JOHN
MENSAH SARBAH, FANTI NATIONAL CONSTITUTION 42-48 (2d ed. 1968) (finding the same
among the Fanti branch of the Akan); Napoleon Bamfo, The Hidden Elements of Democracy
Among Akyem Chieftaincy: Enstoolment, Destoolment, and Other Limitations of Power, 31
J. BLACK STUD. 149 (2000). The penalty for disobeying this and other customary injunctions
was “destoolment” (the equivalent of impeachment and removal from office). Bamfo, supra
at 149; see also Claude Ake, Rethinking African Democracy, in THE GLOBAL RESURGENCE OF
DEMOCRACY, supra note 9, at 72 (“Standards of accountability were even stricter [in
traditional African political systems] than in Western societies. Chiefs were answerable not
only for their own actions but for natural catastrophes such as famine, epidemics, floods, and
drought.”).
Regarding individual “rights” within the Akan political community, Ghanaian Professor
Kwasi Wiredu has recently observed and rebutted attempts to justify preventive detention
laws as symmetrical with “African culture,” that, “it was an absolute principle of Akan justice
that no human being could be punished without trial.” Kwasi Wiredu, An Akan Perspective
on Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS CULTURAL PERSPECTIVES 243, 252
(Abdullahi Ahmed An-Na ìm & Francis M. Deng eds., 1990).
166. As a descriptive category, democracy is concerned simply with the process and
method of selecting governments (and with such safeguards or rights as are deemed
necessary to make democracy possible and credible). See, e.g., ROBERT A. DAHL,
DEMOCRACY AND ITS CRITICS 106 (1989) (“In order to rule, the people must have some way
of ruling, a process for ruling.”). Constitutionalism addresses a different concern. It is
concerned not with who gets to exercise public power, but with how—and how far—public
power may not be exercised. Constitutionalism thus insists on limits and constraints on the
exercise of public power, regardless of who holds such power. The overriding purpose of
constitutionalism is to preserve conditions for individual liberty and protect the common weal
against the tyrannical and self-serving predilections of those who are entrusted with the
coercive power of the state. DAHL, supra, at 26 (“The constitutional task . . . is to design a
system that will somehow overcome the inevitable tendency toward the preponderance of the
few or the single despot and his hangers-on.”).
of the former), long recognized by political theorists and scholars of

constitutionalism,167 is becoming clearer and more widely
acknowledged. The most influential recent reminder of the importance
of upholding the distinction has come in the form of Fareed Zakaria’s
coinage of the epithet “illiberal democracy” to describe, in essence, a
democracy without constitutionalism.168
Zakaria’s normative preference urges a reordering of priorities
away from democratization—and its fixation with elections—and in
favor of constitutionalism.169 In the contemporary global
environment, however, it is not easy or even realistic to decouple the
two.170 In Africa at least, the movement for democracy has provided
the initial impetus and mobilizing rhetoric for the struggle for
constitutionalism. Without the kinds of basic freedom that a push for
democratic reform initially secures—namely, freedom to organize, to
dissent, and to contest elections—it is doubtful that regime opponents
and advocates of constitutionalism would be able to create the space
and momentum necessary to advance a constitutionalism agenda.
Thus, for better or worse, democratization and constitutionalism
are being pursued in tandem in contemporary Africa. Although the
results have been mixed and remain tentative, at least the movement to
democratize politics in Africa has registered important successes.171
The era of de jure one-party regimes appears to be over in Africa, as is
the coup d’état as the normal method of regime change in countries
like Ghana and Nigeria. Instead, throughout common law Africa,
independently supervised competitive elections have become a fairly
routine means of selecting and changing government, and, in
combination with new presidential term limits, have eliminated from
the political landscape the phenomenon of “president for life.”
167. See, e.g., NWABUEZE, supra note 99, at 1 (“Two points which are apt to obscure
the concept of constitutionalism require to be cleared at the outset, and these concern its
relationship, first, with the constitution, and, secondly, with democracy.”); F.A. HAYEK, THE
CONSTITUTION OF LIBERTY 103 (1960) (“Liberalism . . . is concerned mainly with limiting the
coercive powers of all government, . . . whereas the dogmatic democrat knows only one limit
to government—current majority opinion.”).
168. Fareed Zakaria, The Rise of Illiberal Democracy, FOREIGN AFF., Nov.-Dec. 1997,
at 22.
169. Id. at 41.
170. For a critique of Zakaria’s normative or prescriptive agenda, see Marc F. Plattner,
From Liberalism to Liberal Democracy, J. DEMOCRACY, July 1999, at 121 (“Today, wherever
one finds liberalism (understood as constitutional and limited government, the rule of law,
and the protection of individual rights), it is almost invariably coupled with democracy.”).
171. See, e.g., Nicolas van de Walle, Africa’s Range of Regimes, 13 J. DEMOCRACY,
Apr. 2002, at 67 (“We must not forget that even if day-to-day politics falls short of
democratic ideals, the typical sub-Saharan country is measurably more democratic today than
it was in the late 1980s.”).
While the breadth of political reform in Africa is widely

acknowledged, doubts remain as to the depth or durability of its
impact.172 The doubts are strongest regarding progress toward
constitutionalism. Even in the face of current political and
constitutional reforms in Africa, presidential hegemony persists,
political corruption and abuse of office are disturbingly rife, and the
rule of law remains weakly institutionalized at best,173 all of which
prompt skeptics to query whether Africa’s reforming polities can
indeed graduate from electoral to liberal democracy or whether
illiberal democracy—“democracy without constitutionalism,” that is—
is a more likely prospect. Africa’s common law states may have
passed the “elections” bar, but is constitutionalism in their future?
The default answer to this question, in light of Africa’s past
experience, is negative, implying that the burden is on those who
believe otherwise to state their case and overcome the presumption of
futility. The debate, however, need not proceed in the abstract; the
terms of the debate have already been well framed by the pessimists.
By far the most influential proponent of the pessimistic view is
Kenyan legal scholar H.W.O. Okoth-Ogendo. In a widely cited article
written when the current reforms in Africa were in their incipiency,
Professor Okoth-Ogendo reviewed the politics of constitutionalism in
postcolonial Africa and, arguing from that history as well as the
socioeconomic condition of Africa, ended with a grim assessment of
the future prospects of the constitutional reform projects underway on
the continent.174 His article provides the backdrop for the discussion
that follows.
A. “Constitutions Without Constitutionalism”?

Okoth-Ogendo starts off uncontroversially with this observation:
“Political developments in Africa since Ghana’s independence in 1957
have demonstrated repeatedly . . . that not only have constitutions
‘failed’ to regulate the exercise of power, but, devastatingly, they have
not become as basic as the analytical tradition scholars predicted: ‘few
African governments have valued them other than as rhetoric.’”175
Okoth-Ogendo offers this observation to underscore what he calls an
“African constitutional paradox,”176 by which he means “the
simultaneous existence of what appears as a clear commitment by
172. Id. at 67-77.

173. Id. at 79.
175. Id. at 66.
176. Id. at 67.
African political elites to the idea of the constitution and an equally

emphatic rejection of the classical or at any rate liberal democratic
notion of constitutionalism.”177 For Okoth-Ogendo, the challenge for
Africa is how to develop a tradition of constitutionalism in the face of
this “paradox.” The answer he offers is far from reassuring.
As he sees it, the continent’s “dismal” socioeconomic condition
corrupts the “politics of constitution” because, as a result of it, Africa’s
“contemporary elites . . . are preoccupied with the perfection of ways,
means, and techniques of their own survival and the expansion of
opportunities for private accumulation.”178 As long as this state of
affairs persists—which, presumably, will be as long as the conditions
of poverty and underdevelopment persist—Okoth-Ogendo believes
constitutionalism has very dim prospects of success in Africa. On this
view, the phenomenon of “constitutions without constitutionalism,” as
Okoth-Ogendo pithily describes the “African constitutional paradox,”
is as likely to characterize the politics of a postauthoritarian Africa as it
did the three decades immediately following independence.
I take issue with essential aspects of both the descriptive and the
predictive components of Okoth-Ogendo’s thesis. I address them in
turn, beginning with the descriptive.
1. A Case of African Exceptionalism?

Okoth-Ogendo characterizes the phenomenon of “constitutions
without constitutionalism” as an “African paradox” and thus insinuates
that such a reality is a case of African exceptionalism.179 There is,
however, nothing peculiarly African about the paradox he observes.
At an abstract level, “constitutions without constitutionalism”
expresses the idea, itself almost axiomatic, that the mere existence of a
(written) constitution does not imply or preordain constitutionalism.
The former—a constitution—is no more than a datum, while the
latter—constitutionalism—expresses a normative ideal or substantive
goal. Thus, what Okoth-Ogendo calls an African paradox is, if
anything, merely a specific case of a state of affairs that is otherwise
commonplace. Constitutions without constitutionalism are a fairly
standard, if not the defining, feature of illiberal regimes everywhere.180
177. Id. at 66.

178. Id. at 80.
179. Id. at 65.
180. See, e.g., Atilio A. Borón, Latin America: Constitutionalism and the Political
Traditions of Liberalism and Socialism, in CONSTITUTIONALISM AND DEMOCRACY:
TRANSITIONS IN THE CONTEMPORARY WORLD, supra note 18, at 339 (“I do share the
pessimistic vision of H.W.O. Okoth-Ogendo, who considers the existence of constitutions
Furthermore, considering the regimes or constitutions that will

have formed the data set for Okoth-Ogendo’s thesis, his characteriza-
tion of the phenomenon of constitutions without constitutionalism as a
paradox in the African context is similarly inapt. Constitutions of
authoritarian or illiberal regimes are seldom designed or intended to
yield or promote a culture of constitutionalism. African constitutions
over the past thirty years have generally not been designed or intended
as constitutions of limitation. The primary function of the typical
African constitution installed between 1960 and 1990 was to provide a
Kelsenian positivistic cover for regimes of insecure or dubious
legitimacy.181 And where, as sometimes happened, embarrassing gaps
developed between the constitutional text and the reality of power on
the ground, Africa’s clever autocrats, with the aid of opportunistic
counsel, have been quick to respond with regressive amendments
designed to bring text into conformance with reality.182 It would be a
curious outcome indeed if such constitutions, designed to affirm
personal rule, somehow facilitated the emergence of constitutionalism.
2. A New “Constitutional Moment” in Africa

Far more problematic than his description of “constitutions
without constitutionalism” as an African paradox is the predictive
thrust of Okoth-Ogendo’s thesis.183 As an initial matter, the fact that a
culture of constitutionalism has failed to develop out of Africa’s past
constitutions does not warrant or support a conclusion that current or
future constitutions will similarly fail. Whether or not Africa’s new
constitutions can constrain state power where earlier attempts failed is
ultimately an empirical question, to which I shall return momentarily.
However, Okoth-Ogendo further fails to reckon with the vastly
different sociopolitical and even intellectual contexts—domestic,
regional, global—in which the current constitutionalism project in
without constitutionalism to be ‘an African political paradox.’ Unfortunately, his felicitous

formulation describes as well the Latin American record.” (internal citation omitted));
Radhika Coomaraswamy, Uses and Usurpation of Constitutional Ideology, in
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, supra
note 18, at 160 (“[C]onstitutions in South Asia are formal pieces of paper, whose basic
provisions, such as fundamental rights, are rarely observed.”).
181. See supra notes 31-34 and accompanying text.
182. See H. Kwasi Prempeh, Lawyers and Liberal Democracy, J. DEMOCRACY, Jan.
2000, at 71, 76 (“[S]ome of the modern world’s most repressive regimes have been
maintained as much by the clever counsel and stratagem of lawyers in the pay of the
strongman as by brute force.”).
183. See supra note 177 and accompanying text.
Africa is taking place. I will limit my discussion to the domestic

environment.184
Contemporary constitutional reforms in Africa are taking place in
a climate of vastly more open and competitive politics. Unlike past
constitutions, which were typically imposed in top-down fashion at the
behest of a regime in power, the momentum and agenda driving
current reforms often come from, or at least involve, regime opponents
and opposition parties. Thus, not only is the process far more
inclusive and participatory, but constitutionalism now has a network of
influential constituencies right from the start.
In the 1960s, Professor Seidman could write about African
society that “there are few societal restraints upon the executive.
Societies for the Prevention of This and That . . . are not often found in
Africa.”185 The picture differs significantly today. From one country
to another, Africa boasts multiple civic organizations and nongovern-
mental organizations (NGOs) pursuing a wide range of public
interests.186 Some of these civil society organizations play
increasingly important roles in many African countries, helping to
monitor and improve the quality and transparency of government.
Ghanaian political scientist Eboe Hutchful testifies to the growing
influence of African civil society with his observation about a new
“constitu-tionalism from below” emerging in contemporary Africa,
involving a movement “broad and socially diverse, if predominantly
urban, in their composition, drawn from virtually all significant social
strata; students, professionals, labor and community organizations,
peasants and urban employed who are activated by the economic
crisis, by the abuses of human rights and political exclusion, and
encouraged in their struggles by external pressures for democracy.”187
184. Domestic trends in Africa must, of course, be placed and understood within the
larger context of changes occurring both globally and regionally. The nascent democracy
and constitutionalism project underway in a growing number of African countries cannot
be separated from the global movement in the same direction since the end of the Cold
War. The post-Cold War world has been characterized by a global diffusion of “rights”
discourse, the growing influence of international human rights norms and organizations,
and a counterattack against the absolutism of state sovereignty. Regionally too, the
period since the 1990s has witnessed a number of important changes in African
continental politics, among them the emergence of an institutional consensus within the
African Union (AU) of opposition to coups d’etat in member states and the development
and implementation by the AU of an African Peer Review Mechanism that measures
progress toward “good governance” in African states whose governments wish to be seen
as exemplary.
186. See, e.g., Malawi: NGOs Monitor Budged Spending on Education,
IRINNEWS.ORG, Jan. 18, 2006, http://irinnews.org/report.asp?ReportID=44662.
187. Hutchful, supra note 132, at 215, 230.
It is these “groups outside the state apparatuses [that] are now taking
the initiative to demand the redistribution of political power and a
redefinition of the terms of political engagement” in Africa’s
democratizing states.188
Another important change is the passing from the African
political scene of modern Africa’s Founding Fathers. This is a
significant milestone in Africa’s political and constitutional evolution,
considering that it is these larger-than-life leaders who were once
instrumental in the ideological implantation of authoritarianism in
postcolonial Africa. Their “founder rights”189 gave them not only
supraconstitutional legitimacy but also political immunity from their
many errors of omission and commission, including a “right” to hold
power indefinitely.
Importantly, the Founding Fathers’ “founder rights” are not easily
inheritable.190 Today’s generation of African presidents does not have
the benefit of the Founding Fathers’ supraconstitutional legitimacy.
Today’s elected African leaders must source their legitimacy, by and
large, from the domestic (democratic) constitutional order. Of the
current generation of African leaders, perhaps only Uganda’s
Museveni can lay claim to charismatic authority of the kind that the
Nyereres, Nkrumahs and Kaundas once commanded.191 Yet even
Museveni has been unable to resist or ignore pressure for
constitutional reform. Nor is he able to perpetrate with impunity the
kind of abuse of power that Africa’s Founding Fathers could take for
granted.
African presidents face another new political reality: the growing
insistence on presidential term limits. Prior to the 1990s, the
observation made early in the 1980s by Jackson and Rosberg, that “the
institutional method of arranging a succession of rulers through a
written constitution is unusual and has been little tried in Africa,”192
could not have been denied or refuted. Today, however, the principle
of term limits on presidential tenure “is establishing itself as a new
188. Id.
189. NWABUEZE, supra note 99, at 302-03.
190. In fact, in Ghana’s 1960 Constitution, Nkrumah as First President was granted
certain sui generis powers that did not extend to any other successor to the office. See
GHANA CONST. art. 55 (1960) (titled “Special Powers for First President,” and including the
power to “give directions by legislative instrument” and to alter “any enactment other than
the Constitution”). For the avoidance of doubt, Nkrumah was expressly named in the
Constitution as the First President. Id. art. 10.
191. See generally J. OLOKA-ONYANGO, THE DYNAMICS OF CONSTITUTIONAL POLITICS
IN UGANDA (1997).
192. JACKSON & ROSBERG, supra note 36, at 71.
political norm in the region.”193 Term limits have been applied to end
the presidential tenure of long-reigning rulers like Ghana’s
Rawlings194 and Kenya’s Moi195 and of presidential newcomers like
Zambia’s Chiluba196 and Malawi’s Muluzi.197 In the case of the latter
two, civil society successfully resisted attempts to amend the
constitution to allow for a third term.198 The idea of “president for
life” is no longer a tenable proposition in Africa.
The successful institution of presidential term limits in Africa is
an immensely positive development for African constitutionalism.
The prospect of a president returning to “private life” after the
expiration of the customary two terms, with its attendant loss of
presidential immunity, should help discipline the use of power during a
president’s term in office, especially where alternation of power
between rival political parties is a strong possibility. Significantly, the
successful enforcement of term limits on presidential tenure in
contemporary Africa disproves one assertion made by Okoth-Ogendo
in his famous article, namely that, “[p]rovisions limiting the tenure of
office of the President have never been, nor are they likely to be
successful.”199 Recent events have refuted Okoth-Ogendo’s
assessment.
In countries like Ghana and Nigeria, where military rule was
once common, prospects for constitutionalism are also enhanced by
the depth of popular antipathy toward military regimes. In a sense,
prospects for democracy and constitutionalism in contemporary Africa
are helped by the fact that various authoritarian rivals have already had
their day and failed to impress (to say the least). Recent scientific
surveys of popular attitudes toward democracy and government in a
number of African countries show that an experience of even
minimalist democracy is preferred by a significant majority of
193. van de Walle, supra note 171, at 78; see also Njunga M. Mulikita, A False
Dawn? Africa’s Post-1990 Democratization Waves, 12 AFR. SEC. REV. 105, 107 (2003),
available at http://www.iss.org.za/pubs/ASR/12No4/Mulikita.pdf (“Of the 37 African
constitutions that were in force by 1994, all but four contained provisions for term limits.”).
194. See Editorial, An African Success Story, N.Y. TIMES, Jan. 8, 2001, at A16 (lauding
Rawlings’ observance of the constitutionally imposed two-term limit after twenty years in
office).
195. See Marc Lacey, Kenya’s Retiring Leader Fires Vice President Over Succession,
N.Y. TIMES, Aug. 31, 2002, at A7 (stating that “under term limits set some years ago, the
Constitution is forcing Mr. Moi,” who has viewed himself as a father figure to Kenya for the
past twenty-five years, to step down).
196. See Rachel L. Swarns, A Hint of the Coming Battle for Africa’s Future, N.Y.
TIMES, July 14, 2002, § 4, at 3.
197. See id.
198. See id.
Africans over other authoritarian alternatives.200 Military rule is

decidedly the least preferred option in a country like Ghana where the
national experience with this authoritarian alternative is a protracted
one.201 This has improved the climate of governance and has
facilitated civilian control of the military and the demilitarization of
day-to-day law enforcement.
The fundamental changes that have occurred in the social and
political contexts of governance in Africa since the end of the 1980s
render Okoth-Ogendo’s assessment rather backward-looking and
anachronistic. But Okoth-Ogendo rests his pessimistic assessment on
more than Africa’s history of failure with constitutionalism. He also
predicates his assessment on two perennial features of the postcolonial
African state: a “dismal” socioeconomic condition and a predatory
political elite that is not committed to constitutionalism.202
Even with these additional variables injected into the analysis,
Okoth-Ogendo’s pessimism remains insupportable. Regarding
Africa’s “contemporary elites,” Okoth-Ogendo notes (correctly, I
think) that they are “preoccupied with the perfection of ways, means,
and techniques of their own survival and the expansion of
opportunities for private accumulation.”203 However, it is not clear
what this proves. Constitutionalism is no doubt more easily advanced
where there is elite commitment to the idea. But the viability of
constitutionalism is not conditioned on the prior existence of virtuous
elites. Ruling elites everywhere are primarily self-interested and
disdain legal or other fetters on their use of power, and, given the
opportunity and an assurance of impunity, would exploit their
positions of privilege for personal gain. This indeed is the essential
wisdom and assumption of THE FEDERALIST NO. 51: “If men were
angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be
necessary.”204
In short, the elite opportunism and self-dealing, which Okoth-
Ogendo sees as fatally undermining hope for constitutionalism in
Africa, is simply the African case of the universal “agency” problem
200. See generally Robert Mattes & Michael Bratton, Learning About Democracy in
Africa: Awareness, Performance, and Experience 22 (Afrobarometer, Working Paper No. 31,
2003), available at http://www.afrobarometer.org/papers/AfropaperNo31-version3b.pdf
(“Even a past experience with limited political competition within a one-party regime . . . has
salutary effects on demand for democracy in the present.”).
201. Id.
203. Id.
204. THE FEDERALIST NO. 51, at 246-47 (James Madison) (David Wootton ed., 2003).
of government the control of which provides the primary raison d’être

for constitutionalism in the first place. The fact that Africa’s elites are
opportunistic or predatory is why constitutionalism matters in the first
place. That same fact cannot be held up as proof that constitutionalism
is doomed to failure in Africa. It is because of the human propensity to
self-deal that the author of THE FEDERALIST NO. 51 located the
“primary control on the government,” not in the political elites
themselves, but in the people.205 Perhaps the ultimate source of Okoth-
Ogendo’s pessimism resides in his doubts about the ability of the
African citizenry to demand or sustain constitutionalism. This appears
to be the import of his point about the “dismal” socioeconomic
condition of Africa and how that renders it practically impossible for
the majority of Africa’s citizens—the putative beneficiaries of
constitutionalism—to undertake the struggles necessary to achieve
popular control and accountability for the use of public power.206
Indeed, Okoth-Ogendo is not alone in subscribing to the view that it is
impossible to sustain constitutionalism, including a regime of respect
for rights, in the socioeconomic circumstances of Africa.207
The argument used to be advanced, more forcefully, with regard
to democracy. The debate then was framed simply as a choice between
“a full belly” (development) and the ballot (democracy).208 As I
discussed in Part II.C., Africa’s political elites employed this
“development or democracy” formulation in the initial decades after
colonialism to discredit both democracy and constitutionalism and to
create for themselves a supraconstitutional source of legitimacy.209 At
least as to democracy, the “development first” thesis stands severely
discredited210 and is now in retreat.211 Even in the heyday of the
205. Id. at 247.

206. See Okoth-Ogendo, supra note 18, at 80.
207. See, e.g., Franck Moderne, Human Rights and Postcolonial Constitutions in Sub-
Saharan Africa, in CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED STATES
CONSTITUTION ABROAD 315, 340 (Louis Henkin & Albert J. Rosenthal eds., 1990)
(“Conventional human rights are a historically based phenomenon, and Black African
economic and social conditions are not yet conducive to their effective protection.”).
208. See Mattes & Bratton, supra note 200, at 10.
209. See supra notes 129-160 and accompanying text.
210. See, e.g., Amartya Sen, Democracy as a Universal Value, J. DEMOCRACY, July
1999, at 3, 7-8 (refuting the assertion that the poor do not need democracy with the empirical
observation that “in the terrible history of famines . . . no substantial famine has ever occurred
in any independent and democratic country with a relatively free press”).
211. See Joseph T. Siegle et al., Why Democracies Excel, FOREIGN AFF., Sept.-Oct.
2004, at 58, 71 (“As compelling as the development-first thesis sounds, the empirical
evidence is clear: democracies consistently outperform autocracies in the developing
world. . . . We reject a ‘development first, democracy later’ approach because experience
shows that democracy often flourishes in poor countries.”).
“development-first” hypothesis, it was never persuasively explained

why, for example, the act of periodically participating in the choice of
one’s government must be presumed impossibly onerous for the poor.
The “development first” hypothesis is even less persuasive with
respect to constitutionalism, concerned as constitutionalism is with
such matters as checking the abuse of public power and resources,
preserving and protecting individual liberties, and ensuring the rule of
law. Perhaps it might be argued that constititutionalism’s “goodies”
still do not answer the socioeconomic livelihood concerns of Africa’s
poor. In fact, it is often asserted that constitutionalism—liberal
constitutionalism, that is—can guarantee, at best, only a bundle of
negative liberties, and that these provide no relief for the material
needs of the poor. But why might it be supposed that the right, say, to
be free from arbitrary use of public authority—a negative liberty no
doubt, and a central tenet of constitutionalism—is of no moment to
persons struggling to make ends meet?
As the authors of a recent Afrobarometer survey note: “For
people all too familiar with repressive and kleptocratic military and
civilian dictators or racial oligarchies, the human dignity provided by
basic civil liberties may also be a fundamental need in Africa.”212 In
many African societies, where official arbitrariness is rife, it is the poor
who often bear the brunt of the abuse. Constitutionalism then, far
from being a luxury the poor cannot afford, is in fact far more
beneficial to the poor than it is to those with privileged access to the
African political system. As Professor Martin Shapiro has observed:
Guarantees that subordinate government officials will act lawfully
rather than arbitrarily and/or corruptly may be of more immediate
importance to more individuals than guarantees of freedom of speech
or religion. That a local government officer may not arbitrarily
withhold a license to participate in a street market or permission to tap
into a public water pipe, or unlawfully detain a son or destroy a fruit
tree may be the most immediately important aspect of government
accountability for most citizens.213
Professor Eboe Hutchful has indeed noted, amidst the popular
movements toward constitutional democracy in Africa, a growing
212. Mattes & Bratton, supra note 200, at 11.

213. Martin Shapiro, Judicial Review in Developed Democracies, in
DEMOCRATIZATION AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF COURTS IN NEW
DEMOCRACIES 7, 23 (Siri Gloppen et al. eds., 2004); see also SCOTT GORDON, CONTROLLING
THE STATE: CONSTITUTIONALISM FROM ANCIENT ATHENS TO TODAY 52 (1999) (“In modern
democracies, protection of the people’s liberties from arbitrary exercise of official authority
requires as much, or more, attention to the pedestrian activities of minor officials than to the
majestic proceedings of a Parliament or Congress.”).
“appreciation for the values of negative liberty, those that protect the
person from injury by the state.”214 As earlier promises of “positive
rights”—entitling citizens to certain material goods or services
provided by the state—have proved illusory, Africa’s citizens have
rationally readjusted their expectations accordingly, finding, through a
myriad of innovative ways and initiatives, their own private solutions
to all manner of public problems.215 For such self-reliant citizens,
guarantees of negative liberty and the rule of law are substantial and
important concessions to wrestle from the state, because with them
citizens can at least pursue their daily livelihood projects free from
predation, corruption, harassment, and other arbitrary interference
from the state and public officials.
3. The Tentative Record: Ghana’s Resurgence

In the end, the debate over the feasibility of constitutionalism in
Africa can only be resolved empirically. The current constitutional
project in Africa is, however, only about a decade or so old—not a
long enough time to pronounce a verdict one way or the other.
However, in light of past failures, even the tentative record is quite
remarkable.216
No country better exemplifies the quiet but remarkable progress
toward constitutionalism in postauthoritarian Africa than Ghana. With
214. Hutchful, supra note 132, at 231.

215. Id. (“Citizens are therefore diversifying their survival strategies by loosening their
dependence on the state and seeking satisfaction of needs through nonpolitical channels.”).
216. Although there is no authoritative yardstick with which to assess country-by-
country or regionwide progress toward constitutionalism, one surrogate measure that has
gained wide acceptance is Freedom House’s annual Freedom in the World surveys. The
Freedom House survey seems particularly relevant here, as it measures, for each country,
year to year, freedom “as experienced by individuals” and includes in its measurement of
civil liberties “freedoms of expression and belief, associational and organizational rights, rule
of law, and personal autonomy without interference from the state.” Thus, its ratings could
be taken as a surrogate measure of constitutionalism. The survey rates each country on a
seven-point scale for both political rights and civil liberties (1 representing the most free and
7 the least free) and then divides the world into three broad categories: “Free” (countries
whose ratings average 1-3); “Partly Free” (countries whose ratings average 3-5.5); and “Not
Free” (countries whose ratings average 5.5-7). See http://www.freedomhouse.org (last visited
Apr. 12, 2006).
Regarding sub-Saharan Africa, Freedom House provided this summation in its 2003
annual survey report: “In 1972, there were 2 Free countries in sub-Saharan Africa, while 9
were Partly Free, and 28 were Not Free. Today, 11 countries are Free, 21 are Partly Free,
and 16 are Not Free.” What is significant is that of the new states that have joined the
category of “Free” states in Africa since 1972, all have achieved their remarkable progress
since embarking on democratic constitutional reforms in the early 1990s. While some
countries have slipped from ‘Partly Free’ to ‘Not Free’ over the same period, in general, as
democratic constitutional reform has progressed, reforming states have either improved their
in-group standing or else moved upward to the next category.
its postindependence history of authoritarian rule and multiple coups

d’etat, Ghana entered the 1990s with an abysmal record in the area of
constitutionalism.217 Finally, in January 1993, after ten years of
military-backed dictatorship, Ghana implemented a referendum-
approved democratic constitution.218 In 1997 when Fareed Zakaria
warned of the rise of “illiberal democracies,” Ghana was on his short
list of examples, indicating a disappointing lack of progress toward
constitutionalism in the first few years following the restoration of
constitutional authority.219 Between then and now, however, Ghana
has experienced significant incremental improvement.220
In January 2001, the expiry of a new constitutional two-term
limit on presidential tenure saw the exit of Ghana’s longest-serving
ruler, Jerry Rawlings.221 The opposition party succeeded to the reins
of government after defeating Rawlings’ party in the presidential and
legislative elections of December 2000.222 The two rival parties faced
off again in the general elections held in December 2004, in which
eighty-five percent of registered voters cast ballots, with a clear
majority voting to retain the incumbent government in office for
another four-year term.223
Importantly, particularly in light of the persistent doubts about the
value of negative liberty to Africa’s poor, the results of recent elections
in Ghana indicate that, in choosing government, contemporary African
voters are concerned as much about “freedom” as about promises of
material well being. In the 2000 elections, for example, the New
Patriotic Party (NPP), the leading opposition party at the time,
campaigned on a promise of less governmental intrusion in the affairs
of private citizens and greater respect for personal liberties and
freedom, while the ruling National Democratic Congress (NDC),
which had done little to shake off its military and authoritarian
antecedents, continued to run primarily on its “development record”
and populist platform.224 The NPP promised specifically that, if
217. Hutchful, supra note 132, at 228.

218. Id.
219. See Zakaria, supra note 168, at 41.
220. See Freedom House, Country Report: Ghana, at 227-29, available at
http://www.freedomhouse.org/template.cfm?page=22&year=2005&country=6743 (last
visited Mar. 27, 2006).
221. See U.S. Dep’t of State, Bureau on African Affairs, Background Note: Ghana,
Jan. 2006, available at http://www.state.gov/r/pa/ei/bgn/2860.htm.
222. See id.
223. See id.
224. See Ctr. for Democracy & Dev., Ghana—A Transition of Hope and Trepidation:
Paper on the 7 Dec. Elections in Ghana, http://www.cdd.org.uk/resources/workingpapers/
ghana_election.htm (last visited Mar. 27, 2006).
elected, it would quickly repeal a criminal libel law that the NDC
administration had began to use against the private press.225 In the
ensuing elections, Ghanaians voted out the NDC, with most voters
citing a desire for greater freedom as their primary reason for
preferring the rival party.226 In the December 2004 elections,
Ghanaians voted to retain the NPP, rewarding the government more
for delivering on its promises of personal liberties and freedom than
for any material accomplishment.227 The point is not that matters of
material well-being have become secondary in the lives of Ghanaian
voters—they have not. Rather, it is that Ghanaian voters do not appear
to subscribe to the once popular view that improvements in material
welfare must be bought at a sacrifice of personal liberty.
Accompanying Ghana’s remarkable progress in the area of
electoral politics has been an even more remarkable improvement in
civil and political liberties. Notably, Ghana has witnessed a
phenomenal growth in the size, independence, and influence of its
private mass media since 1993.228 Ghanaians now enjoy unimpeded
access to news, editorial opinions, and political commentary from
multiple independent sources.229 In addition to wide diversity in the
print media, several private radio stations, numbering over fifty
nationwide, and two private commercial TV stations (and others
accessible by cable) operate freely in a country where, before the new
constitution came into effect, the government-controlled radio station
had held a three decade-old monopoly of all broadcasting.230 The
private media have played a major role in exposing scandal and
malfeasance in public office and have generally kept politicians under
scrutiny.231
In a country long plagued by coups and military indiscipline,
Ghana has witnessed a successful reassertion of civilian-political
control over the military since 1993. The military has been completely
225. See Freedom House, supra note 220.

226. See Konrad Adenauer Found., Report on Ghana 2004 Elections, http://www.kas.
de/db_files/dokumente/7_dokument_dok_pdf_7161_2.pdf (last visited Mar. 27, 2006); see
also Ghana: Kufour Likely To Win a Second Term as President, Rival Overshadowed, IRIN
NEWS.ORG. Nov. 26, 2004, http://www.irinnews.org (search archives for “Ghana” and “Nov.
26, 2004” and “Democracy and Governance”) (noting Ghanaians’ happiness with freedoms
restored during the previous, NPP-run, term).
227. See sources cited supra note 226.
228. See U.S. Dep’t of State, Bureau of Democracy, Human Rights, & Labor, Country
Reports on Human Rights Practices 2004: Ghana, Feb. 28, 2005, available at http://www.
state.gov/g/drl/rls/hrrpt/2004/41606.htm.
229. See id.
230. See id.
231. See id.
disengaged from politics and civilian law enforcement restored to the

police.232 Disputed governmental actions are occasionally subjected to
constitutional challenge, and the government has dutifully obeyed
court decisions that have gone against it.233 Arbitrary arrests and
extrajudicial punishment, once common, are now a rare complaint,
and the country’s prisons hold no political prisoners or persons
detained without charge or trial.234
In sum, the quality of constitutionalism in Ghana has improved
consistently and appreciably over the ten-year period since its current
constitution went into effect. Progress may not have been similarly
strong or consistent in other democratizing African states, but
compared to the period before the implementation of their current
constitutions, Africa’s reforming states have recorded a net
improvement in individual liberty.
It is important to underscore what it is that I have not set out to
prove in the foregoing discussion. I have not set out to prove that
constitutionalism has become firmly or irreversibly implanted in any
of Africa’s reforming states. My more modest goal has been refuting
the pessimistic (indeed fatalistic) thesis that would rule out
constitutionalism as infeasible in Africa on account either of past
experience or of Africa’s “dismal” socioeconomic condition.235 I have
thus set out to prove only that a new context has emerged that
represents a significant new opportunity for constitutionalism to take
root in Africa.
I also have not set out to prove that constitutions—or
constitutional texts—can themselves alone constrain power or produce
constitutionalism. Still, “a political chemistry may turn sheets of paper
into hoops of steel.”236 A helpful constitutional text, such as one that
protects liberty, can provide a rallying point for social constituencies to
press their claims against the state.237 A liberal constitutional text may
not be a magic wand, but it is still better—far better—to have one than
not.
232. See id.

233. See id.
234. See id.
236. Walter F. Murphy, Constitutions, Constitutionalism, and Democracy, in
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, supra
note 18, at 7.
237. See STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY,
AND POLITICAL CHANGE 131 (2d ed. 2004) (“Since rights carry with them connotations of
entitlement, a declaration of rights tends to politicize needs by changing the way people think
about their discontents.”).
Threats to constitutionalism nonetheless persist in Africa’s

reforming states. In many respects, these problems persist because of
choices made, and choices not made, in the current processes of
constitutional reform. I examine these defects in the next Part of the
Article.
B. Reforming Authoritarian Politics Without Reforming the State

Eastern European constitutionalist András Sajó has observed that
constitution-makers inevitably focus on solving the gravest problems
of the immediately preceding regime.238 Thus, “[c]onstitutions that
have emerged after tyranny and one-party dictatorship are full of
apprehension concerning one-party systems and the monopolization of
power.”239 This also implies that postauthoritarian constitutions may
leave in place (i.e., unreformed) certain aspects of the ancien regime,
notably those that have low salience at the moment of transition or that
are not considered among the gravest problems of the immediately
preceding regime. What, then, have been the most pressing fears that
have shaped the design and content of Africa’s contemporary
constitutions?
The one overriding purpose behind recent constitutional reform
in Africa has been to bring an end to authoritarian/personal rule. In
other words, the democratization of national politics has topped the
constitutional reform agenda in Africa. Thus, dislodging and
banishing one-party regimes, military rule, and life presidencies has
been the main preoccupation of Africa’s reformers. Within the process
of constitutional reform, these goals have been achieved primarily by
means of a guarantee of multiparty democracy (including adult
suffrage and the right of political parties to organize and contest
elections), a prohibition against one-party rule (or military rule), and
the entrenchment of term limits on presidential tenure.240
Contemporary constitutional reform in Africa has also been
propelled by a need to end human rights abuses and generally improve
conditions for rights.241 The standard mechanism through which this
latter goal has been secured in Africa’s current constitutios has been by
including in the constitution a modern bill of rights, enforcement of
238. ANDRÁS SAJÓ, LIMITING GOVERNMENT: AN INTRODUCTION TO CONSTITUTIONALISM 13

(1999).
239. Id.
240. See generally Ctr. for Democracy & Dev., supra note 224 (describing political
and social developments leading up to Ghana’s 2000 elections).
241. See, e.g., HIRSCHL, supra note 4, at 89-96 (highlighting human rights abuses as an
origin of constitutional return in Africa).
which is entrusted to private litigants and courts possessed of the

power of judicial review.242 In some cases, additional provision has
been made for the establishment of an ombudsman or human rights
commission to provide a more accessible forum for processing citizen
complaints of rights abuses.243
Beyond these changes, however, Africa’s new constitutions have
not been particularly ambitious. Notably, Africa’s modern
constitutions have generally failed to address or reform the structure
and distribution of power within the postcolonial state. Instead, the
current constitutions have preserved the centralizing tendencies—and
other “original sins”—of the founding generation that have defined the
structure and organization of power within the African state since the
early 1960s.
As before, all political power and control over resources reside in
the national capital city.244 Regional and local authorities exist as mere
administrative appendages and dependencies of the central
government.245 The founding generation’s obsession with the centralized
unitary model remains the norm under Africa’s new constitutions.246
Federalism is still a disfavored (yet unexamined) idea in African
constitutional politics, despite the resilience of subnational identities
and loyalties. Moreover, Africa’s constitutions break no new ground
in the area of devolution of power and responsibility to local
government or the incorporation of traditional customary authorities in
local development.247 The African state is still very much a state ruled
from one location by one person.
At the center of the African state, Eboe Hutchful’s observation
regarding earlier constitutional revisions remains regrettably true of
the current: “the African state (or at least its executive core) [has]
emerge[d] from successive redefinitions of its constitutional
parameters with its substantive powers intact.”248 Now, as before,
power at the center remains excessively concentrated in the bosom of
the President. Africa’s new constitutions have preserved the imperial
242. See, e.g. Ctr. for Democracy & Dev., supra note 224 (noting the indemnity
clauses recently added Ghana’s constitution for protection from human rights abuses).
243. See, e.g., Paul, supra note 19, at 857 (noting the development of a “ombudsman-
type institution” in Tanzania).
244. See Ndulo, supra note 26, at 347-68.
245. See id.
246. See id.
247. See id. at 349.
248. Hutchful, supra note 132, at 225; see also JAMES T. MCHUGH, COMPARATIVE
CONSTITUTIONAL TRADITIONS 140 (2002) (“The dominant role of the Nigerian President
remains pervasive, even during periods of effective democratic sovereignty and civilian
control of the government.”).
presidency, with its vast powers of patronage and virtual monopoly of

policy and legislative initiative.249 Practically nothing good that needs
to be done and nothing bad that needs to be undone in the
contemporary African state can advance without the initiative or
intervention of the president. Besides being subject to term limits, the
modern African president, once installed in office remains, as before,
very much a “monarch of all that he surveys.”
Africa’s new constitutions are especially short on structural
checks on the power of the President.250 Parliaments have often been
designed as weak partners of the President, existing primarily to push
through the legislative agenda of the President. Africa’s parliaments
indeed must depend on the President to determine the size of the
legislature’s budget, and the executive retains control and final
authority over when and how much of the statutorily approved budget
the legislature will actually get.251 Other potential agencies of
horizontal accountability, such as auditors-general or ombudsmen, are
similarly weak and dependent on the executive for resources.
In short, the modern African constitution preserves most of the
principal defects of the old order: a hegemonic executive, a highly
centralized unitary state, and subordinate legislatures in which
opposition parties have little influence. Constitutional reform in Africa
may have democratized politics but, thus far at least, it has failed to
liberalize power within the state.252 Regime opponents and
constitutional reformers in Africa have sought and secured the right to
open competition and contestation for control of the “political
249. See generally GHANA CONST. arts. 57-69 (1992) (describing the powers, functions
and immunities of the president).
250. In Ghana, for example, the constitution grants the President monopoly in the
initiation of all bills (including amendments) that might entail an incurrence of expenditure
by the government. See H. Kwasi Prempeh, The Executive-Legislature Relationship Under
the 1992 Constitution: A Critical Review, 15 CRIT. PERSP., Sept. 2003, at 1, 13 (describing
the weakness of the legislature vis-à-vis the president). Parliament, despite being regarded as
the holder of the purse, can only cast an “up” or “down” vote on practically all bills. See id.
at 11. Presidential monopoly in the initiation of all legislation with likely financial
consequences effectively narrows to one—the President’s—the possible legislative solutions
that Parliament may lawfully consider in response to a given public problem. See id. at 11-
14. In the area of corruption, while the Ghana constitution establishes an anti-corruption
agency outside the executive, the Attorney General, who is by constitutional fiat a member of
the President’s cabinet and holds office at his pleasure, retains traditionally unreviewable
power to initiate or discontinue all criminal prosecution. See GHANA CONST. art. 88 (1992)
(outlining the duties and powers of the Attorney General).
251. See Prempeh, supra note 250, at 14.
252. See, e.g., Siri Gloppen, The Accountability Function of the Courts in Tanzania
and Zambia, in DEMOCRATIZATION AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF
COURTS IN NEW DEMOCRACIES, supra note 213, at 112, 119, 131 (“[M]ultiparty elections and
constitutional changes [have] failed to diminish the dominance of the executive president.”).
kingdom,”253 but reform of the “kingdom” itself has yet to be

confronted.
The failure of Africa’s constitution-makers to reconfigure the
structure and distribution of power within the African state means that,
apart from democratizing politics, the contemporary constitutionalism
project in Africa is essentially concerned with juridical
constitutionalism, with its emphasis on judicial enforcement of bills of
rights in the context of privately initiated litigation.254 Structural
constitutionalism—consisting in the installation of credible checks and
balances between the political branches (parliament and president),
strong and independent agencies of horizontal accountability, and
meaningful devolution of power to the local level—has been left
largely unexplored by Africa’s constitutional designers.255 As Africa’s
constitutional reforms proceed, this deficit of structural
constitutionalism must be confronted in order to consolidate progress
toward credible constitutionalism.
The preoccupation with juridical, as opposed to structural,
constitutionalism in Africa’s current constitutional reform project
suggests that the lessons from the failed constitutionalism of the early
postcolonial period have not been fully appreciated. It also reflects the
persistence of the view that constitutionalism is for judges and lawyers
to enforce, and that it is judicial nonenforcement of constitutionalism
that doomed earlier attempts. As I have discussed in Part II of this
Article, this view is mistaken. Judicial enforcement of rights and
constitutional norms is indeed an important component of any credible
system of constitutionalism, but when it is relied upon to be the only
countervailing power within the state, and thus when the burden of
sustaining constitutionalism rests primarily on its “weak” shoulders,
the judiciary cannot achieve much.
Moreover, considering the weight of the expectation placed on
the judiciary, Africa’s constitutional and political reformers have done
little to reform or prepare the judiciary for the onerous responsibility it
253. During the struggle to end colonialism, Ghana’s Kwame Nkrumah described his
mission in biblical terms, as, above all else, the capture of political power : “Seek ye first the
political kingdom and all things shall be added unto you.” DAVID ROONEY, KWAME
NKRUMAH: A POLITICAL KINGDOM IN THE THIRD WORLD (1988). His admonition was
obviously taken very seriously, as the capture of the “political kingdom” has been the all-
consuming end—and a ticket to personal fortune—for Africa’s politicians.
254. Commonwealth Human Rights Initiative, Promoting a Culture of Constitutionalism
and Democracy in Commonwealth Africa: Recommendations to Commonwealth Heads of
Government 11 (1999), available at http://www.humanrightsinitiative.org/publications/const/
constitutionalism_booklet_1999.pdf.
255. See id. at 8-11 (tracing the recent constitutional history in commonwealth Africa).
must now assume. Many longstanding deficiencies and problems

facing Africa’s judges and courts persist. The assumption appears to
have been that, having been granted unambiguous and plenary judicial
review power, plus constitutionally protected tenure, and handed a
democratic constitution with a modern bill of rights, Africa’s judges
should have no difficulty playing their part in building and sustaining
constitutionalism in postauthoritarian Africa. As the discussion in Part
IV of this Article will show, this faith in the transformative power of
judicial review may turn out to be a costly illusion.
IV. THE PERILS OF JURIDICAL CONSTITUTIONALISM IN AFRICA

Africa’s judiciaries, long considered marginal to the course of
national events and politics, have emerged from current democratic
and constitutional reforms with far greater prestige, authority, and
confidence than they have enjoyed in the past. In Africa’s
democratizing common law countries, new and revised constitutions
grant to one or more courts within the national judicial hierarchy
express and unambiguous power to interpret and enforce constitutional
commands, including, notably, bills of rights.256 Provisions designed
to secure the independence of Africa’s judges accompany this grant of
judicial power. Generally, Africa’s judges no longer hold their offices
at the sufferance of the President, judicial salaries and other benefits
may not be varied to the judges’ detriment, and the jurisdiction of the
courts may not be ousted or diminished.257 In Ghana, the new
constitution goes even further to grant the judiciary autonomy in the
preparation, administration, and control of its own budget.258
Even more significant is the new political context within which
the African judiciary must operate. Africa’s judges must work
alongside multiparty parliaments, elected and term-limited presidents,
opposition parties, a vibrant civil society, and an open media
environment. Democracy and constitutionalism, once discredited by
Africa’s political elites, are now the primary sources of legitimacy for
national politicians in a growing number of states. All of these make
for a very favorable environment for Africa’s judiciaries.
At the same time, contemporary constitutions, by failing to
design credible checks and balances within the political half of the
256. In fact, what these constitutions have established with regard to the judicial
function goes beyond judicial review, it is judicial supremacy, as the constitutions have
uniformly vested the judiciary—and it alone—final authority to interpret provisions of the
constitution. See Seidman, supra note 19, at 824.
257. See GHANA CONST. art. 127 (1992).
258. See id. art. 127, § 7.
state, place a disproportionate weight of the burden of promoting and

sustaining constitutionalism on the African judiciary. What is yet to be
seen is whether the African judiciary, in its present state, can deliver on
this expectation.
As judicial review requires private commencement of an
appropriate suit before adjudication of the matter by a court of
competent jurisdiction, threats to effective judicial enforcement of a
constitution can come from either the “demand side” (private parties)
or the “supply side” (the courts). In common law Africa, judicial
review—and thus juridical constitutionalism—is indeed imperiled by
severe handicaps from both demand and supply sides.
A. Demand Side Challenges to Judicial Review in Africa

A critical challenge facing judicial review in contemporary Africa
is how to generate public demand for judicial enforcement of the
constitution in a society characterized by extremely low levels of legal
literacy and rights awareness. Currently in Africa, the burden of
educating the public about rights and other constitutional norms has
fallen primarily on domestic NGOs, publicly, but thinly, funded
national human rights commissions, and the media. The available
resources are quite simply not adequate to the task.259
Widespread lack of knowledge about rights is compounded by
the African public’s general unfamiliarity with the notion of suing
government. In common law Africa’s new democracies, constitutional
reform has liberalized standing doctrine so that petitioners are no
longer required to show personalized injury in order to bring suit.260
The allowance of third party standing, however, has not given birth to
“private attorneys general” ready and willing to sue government in
defense of the rights of others. Constitutional suits are still prosecuted
primarily by parties that might otherwise qualify to sue under
traditional common law rules, including opposition politicians and
259. See generally CLAUDE E. WELCH, JR., PROTECTING HUMAN RIGHTS IN AFRICA:
ROLES AND STRATEGIES OF NON-GOVERNMENTAL ORGANIZATIONS (1995) (describing the
prominent position played by nongovernmental organizations in addressing human rights
issues).
260. See, e.g., MALAWI CONST. art. 15, 82 (1994) (“Any person or group of persons
with sufficient interest in the protection and enforcement of rights under this Chapter shall be
entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and
other organs of Government to ensure the promotion, protection and redress of grievance in
respect of those rights.”); GHANA CONST. Art. 2 (1992) (“A person who alleges that (a) an
enactment or anything contained in or done, under the authority of that or any other
enactment, or (b) any act or omission of any person, is inconsistent with, or is in
contravention of a provision of this Constitution, may bring an action in the Supreme Court
for a declaration to that effect.”)
political parties. Most African countries, with the notable exception of

South Africa, have a rather weak tradition of public-interest
lawyering.261 Lacking an organized public interest or human rights bar
or a tradition of pro bono representation, Africa’s common law
lawyers have generally not seized upon the liberalization of
constitutional standing to seek judicial enforcement of the
constitution.262 The result is a chronic under-enforcement of
constitutional guarantees in contemporary Africa.
At the same time, threats to constitutional rights abound, thanks
to the continued existence in Africa’s reforming states of a huge
inventory of oppressive legislation from the era of authoritarian
regimes. Across common law Africa, sedition, criminal libel, and
other such laws enacted by authoritarian regimes for purposes of
political repression remain on the books.263 Some of these laws date
as far back as the colonial period.264 This state of affairs arises from
the continued recourse to the practice, first used in the transition from
colonialism to sovereign statehood, of inserting a “savings” clause in a
new constitution to hold over and presume valid all laws from the old
regime until they are challenged and found unconstitutional on a case-
by-case basis.265
Under conditions of gross under-enforcement of the constitution
by means of private litigation, legislative repeal or amendment would
seem the most appropriate way to deal with the problem of obnoxious
laws held over from the past. However, Africa’s democratically
elected governments have done little to purge the statute books of such
repressive legislation, creating a situation parallel to that in the
immediate aftermath of colonialism when colonial-era laws, many of
them designed for repression, remained in force alongside relatively
more rights-friendly independence constitutions. Africa’s politicians
generally share the attitude that it is for the courts to rule legislation
unconstitutional when a proper suit is brought, and until that has been
done, the laws on the books may continue to be enforced. Despite the
existence of national law reform commissions across common law
261. See WELCH, supra note 259, at 202-04.

262. See id. at 306 (“Lawyers in Africa are few in number, overwhelmingly
concentrated in national capitals . . . and not affected by extensive pro bono obligations.).
263. See, e.g., Oko, supra note 38, at 623 n.250 (noting the prevalence of outdated
English statutes remaining applicable in Nigeria).
264. See id.
265. See, e.g., GHANA CONST. art. 11, § 5 (1992) (“Subject to the provisions of this
Constitution, the existing law shall not be affected by the coming into force of this
Constitution.”).
Africa, the work of these commissions is rarely integrated into the

national legislative process.266
In countries with a long experience of military rule, like Nigeria
and Ghana, this problem has created the anomaly of military decrees
constituting a disproportionately large percentage of currently valid
statutes.267 Although some of these laws may eventually fall into
desuetude, the fact that they remain on the books creates a continuing
risk of arbitrary and selective enforcement.268 In fact, some of Africa’s
new democratically elected governments have not hesitated to retrieve
from the shelves and selectively enforce some of these antiquated
laws.269
Perhaps the problem of repressive laws from past authoritarian
regimes is best addressed in the constitution rewriting process.
Africa’s constitutional reformers may have to consider creative
alternatives to the longstanding practice of using savings clauses to
“grandfather” the entire stock of preexisting statutes into the new
constitutional order. For example, constitutional reformers can repeal
the most repressive of such laws ex ante by express provision in the
new constitution. Repeal by constitutional fiat has the advantage of
forthrightly settling the unconstitutionality of some of the most
obnoxious laws on the books, thereby eliminating the risk that a future
court might decline to rule such laws unconstitutional or that the
government might fail to take steps to have them repealed.270
The existence in a postauthoritarian era of a large stock of
repressive legislation from the past that remains unchallenged in the
courts, confronts courts in contemporary Africa with the paradox of a
potentially large supply of justiciable cases, on the one hand, and a
substantial deficit of demand for judicial review, on the other. This
shortfall in demand for judicial review cannot persist for too long
without reinforcing perceptions of the courts as useless in the face of
governmental abuse.
266. See, e.g., Malawi Law Commission, http://www.lawcom.mw (last visited Mar.
27, 2006).
267. In fact, in Ghana, the law that continues to regulate the conduct of national
elections in a supposedly democratic era is still a decree issued in 1992 by the last military-
backed regime.
268. Such enforcement would normally suffer no “due process” infirmity under the
existing common law-based jurisprudence of these African states.
269. See Alfred W. Chanda, Freedom of Expression and the Law in Zambia, 30
ZAMBIA L.J. 123, 128-40 (1998).
270. If the constitutional repeal approach is taken, the repeal provision must make
clear that the list of repealed laws is not intended to be an exhaustive list of the preexisting
laws rendered invalid under the new constitution.
B. The Supply Side of the Problem: Judging Africa’s Judiciary

Contemporary constitutional reform in common law Africa also
fails in its inattention to the condition of the national judiciary at the
moment of transition. The reform and transition agendas have tended
to focus, from the outset, on the political branches and, especially, on
how to make control of those branches competitive and accessible.271
For the judiciary, all that is thought necessary to prepare it for the
challenges of the new era is to secure its independence, jurisdiction,
and powers by express provision in the text of the constitution. That
done, the existing judiciary, like its colonial predecessor, is simply held
over to the new era, along with the preexisting legal order. The
expectation is that, having been vested with the express power of
judicial review and appropriate protections against political
interference, judges would be free and able to play their part as
“guardians of the constitution.”272
In the remainder of this Article, I will show why this expectation
is misplaced. I highlight specific deficiencies and challenges
confronting common law judiciaries in Africa, notably in the areas of
social legitimacy, jurisprudence, independence and accountability.
The African judiciary’s ability to contribute meaningfully to the
progressive development of constitutionalism will depend, in large
part, on how successfully and how soon it can overcome these
difficulties.
1. The Challenge of Social Legitimacy

Africa’s postauthoritarian courts currently enjoy narrow (and, in
some cases, deep) social legitimacy. Emergent pro-democracy NGOs,
the private media, the bar, and locally influential external donor
agencies provide the main base of support for the courts.273 Large
sections of the population, however, continue to perceive Africa’s
courts as remote and irrelevant. The average African encounters the
national judicial system rarely, and when he or she does it is often as a
criminal defendant or as a witness in a criminal trial.
Procedurally, the processes of the courts look, to the average
observer or reluctant participant, like a game conducted in a foreign
271. See, e.g., Ndegwa & Letourneau, supra note 164, at 83.
272. THE FEDERALIST NO. 78, at 287 (Alexander Hamilton) (David Wootton ed.,
2003).
273. See, e.g., WELCH, supra note 259 (assessing the impact of nongovernmental
organizations in Africa); Gloppen, supra note 252, at 131 (describing the relationship
between NGOs and courts in Tanzania and Zambia).
language by bewigged Africans whose social and economic worlds are

far removed from the daily lives of the rest of the population. Add to
this the longstanding public perception of the judicial system as
corrupt and biased in favor of the powerful, and the result is an African
public that is both distrustful of judicial power and doubtful of the
relevance of courts to the lives of the ordinary citizen.
In short, while positivistic legitimacy is no longer a problem for
the modern African court exercising judicial review powers, social
legitimacy remains a challenge. This longstanding deficit in the
courts’ social legitimacy is problematic because the judiciary cannot
rest the efficacy of its judicial review power solely on positivistic
legitimacy. Even with their newly enhanced powers of judicial review,
Africa’s postauthoritarian courts cannot play as effective a role as they
must in the promotion of constitutionalism until they can make
themselves useful to all citizens.
In India, during the 1970s and 1980s, the judiciary found itself
confronting a similar “legitimation crisis” because traditional common
law doctrine and procedure were woefully unresponsive to the needs
and circumstances of a majority of the population.274 The Supreme
Court of India, recognizing that “it could not turn away from the
claims and demands of social justice and still honour its claim to be a
court of all the citizens of India,” responded by pioneering “public
interest litigation” (also called “social action litigation”) through
innovation in the courts’ procedural and substantive jurisprudence.275
On the procedural side, the Supreme Court of India modified the
common law rule of locus standi so that
where a legal wrong is done or a legal injury is caused to a person or to
class of persons by violation of their constitutional or legal rights and
such person or class of persons is, by reason of poverty or disability or
socially or economically disadvantaged position, unable to approach
the court for relief, any member of the public or social action group
acting bona fide can maintain an application in the High Court or the
Supreme Court seeking judicial redress for the legal wrong or injury
caused to such person or class of person[s].276
274. See P.N. Bhagwati, The Role of the Judiciary in the Democractic [sic] Process:
Balancing Activism and Judicial Restraint, 18 COMMONWEALTH L. BULL. 1262, 1265-66
(1992).
275. See id.
276. P.N. Bhagwati, Former Chief Justice of India, Public Interest Litigation: Product
of Judicial Activism, Keynote Address at the 16th Annual Session of the Organisation of
Professional Associations, available at http://www.dailymirror.lk/2003/10/04/opinion/3.html
(last visited Mar. 27, 2006).
Importantly, the Supreme Court of India interpreted its jurisdiction

under the Indian Constitution liberally to allow such jurisdiction to be
invoked by a mere letter addressed to the court by any member of the
public or a social organization alleging the violation of the rights of an
otherwise unrepresented class of persons.277
Along with creating this new “epistolary jurisdiction”278 and
recognizing third-party standing, the Supreme Court of India also
reformed its substantive jurisprudence in a range of cases, extending
judicial protection to interests, rights and remedies that common law
doctrine could not reach or would not recognize.279 By this
combination of procedural and substantive innovation, India’s
Supreme Court “acquired a new credibility with the people.”280 As
one commentator observed at the time, “The Supreme Court of India
is at long last becoming, after thirty-two years of the Republic, the
Supreme Court for Indians.”281
For Africa’s judiciaries, situated (like India’s) in societies where
vast socioeconomic inequality produces severe disparities in access to
justice and alienates a majority of the citizenry from the courts, the
Indian Supreme Court’s “access to justice” initiatives provide a
blueprint of how courts themselves might address the social legitimacy
deficit they face. In a number of Africa’s reforming states, notably
Ghana and Malawi, the postauthoritarian constitutions have advanced
this cause by expressly modifying the common law standing rule in
constitutional cases, allowing plaintiffs to bring challenges without a
showing of personal “injury-in-fact.”282 Other courts, such as
Tanzania’s, have arrived at the same result through case law.283
Access or procedural reform alone, however, is not sufficient to
redress the widespread alienation of a majority of Africans from their
judicial systems. Outside of the criminal law, the substantive matters
that engage the courts’ attention and dominate their civil dockets often
277. Id.
278. See Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental
Rights in India: Looking Back to See Ahead (1950-2000), 14 AM. U. INT’L. L. REV. 413, 455
(1998) (discussing epistolary jurisdiction and other procedural and substantive innovations
pioneered by the Indian Supreme Court and the effect of these changes on constitutionalism
and rights in India).
279. See Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the
Supreme Court of India, in THE ROLE OF THE JUDICIARY IN PLURAL SOCIETIES 32 (Neelan
Tiruchelvam & Radhika Coomaraswamy eds., 1987).
280. Bhagwati, supra note 276.
281. Baxi, supra note 279, at 32.
282. See GHANA CONST. art. 2 (1992); MALAWI CONST. arts. 15, 82 (1994).
283. See, e.g., Mtikila v. Attorney-Gen., Civ. Case No. 5 of 1993 (High Ct. Tanz.)
(unreported), available at http://www.elaw.org/resources/text.asp?ID=167.
do not speak directly to the needs of African publics. Episodic

constitutional litigation, while necessary to ensure governmental
compliance with constitutional norms, often does little, at least in the
short run, to affect the nature and form in which the average African
encounters oppressive power.
When the average African encounters public power the party at
the other end of the encounter is unlikely to be the President,
Parliament, or a Minister of State; it is more likely a mid-level tax
officer at the district income tax office, a customs official, an official at
the land title registry, the clerk in charge of market stall permits at the
municipal office, the front desk officer at the public utility service, the
central bank inspector overseeing operators of private foreign
exchange bureaus, the official at the vehicle or drivers’ licensing
department, or sundry other civil servants. For most Africans, these
recurring encounters are likely to be fraught with abuse of discretion,
selective and ad hoc “rule making,” opportunistic delays, extortion,
and frustration. The most basic notion of rule of law is typically
absent from these dealings.
To the average African then, constitutionalism must mean, above
all, bringing an end to the abuse of discretion and rampant impunity
that characterizes the exercise of public power, both high and low, in
much of Africa. To address this problem in any meaningful way
requires a credible regime of administrative law. Administrative law,
however, is arguably the least developed area of law in common law
Africa. The sparse jurisprudence in this area has not developed much
beyond the common law ultra vires doctrine and, in some cases, a
requirement to provide reasons for an adverse decision.284 Yet, as
Professor Martin Shapiro has argued, robust judicial review of
administrative action may be the ideal starting point for newly
empowered judiciaries in transitional democracies to put their judicial
review power to the test before later taking on the more challenging
constitutional judicial review.285 Because “statutory” judicial review
typically involves enforcing rule-of-law norms on administrative
officials, it may present the courts as “allies rather than opponents of
the law-making and/or highest executive authorities.”286 Thus, aside
from benefiting a larger population of citizens directly and thus
broadening the courts’ social constituency, judicial review of
administrative action may be the most strategically effective way for
284. See, e.g., People’s Popular Party v. Attorney-Gen., [1971] 1 G.L.R. 138, 139
(Ghana) (“When the police refuse to grant a permit they must assign reasons. . . .”).
285. Shapiro, supra note 213, at 23-25.
286. Id. at 25.
courts to build the foundations for a more credible constitutional

judicial review.287
For a great many Africans, especially rural women, continuing
oppression or subordination also often comes in the form of customary
practices and norms. The ability of Africa’s courts to influence change
in this area depends, first and foremost, on whether or not judicially
enforceable bills of rights and antidiscrimination provisions can reach
beyond “state action” to cover customary practices and other abusive
forms of “private action.” Many modern African constitutions apply
their rights provisions not only “vertically” (i.e., to the relationship
between citizen and state) but also “horizontally” (i.e., to the treatment
of one private party or person by another, nonstate actor). This
provides judges with a vital doctrinal resource with which to attack
discriminatory and repressive customary practices, especially those
that disadvantage or harm women or girls. African judges will garner
substantially greater social relevance and legitimacy for the courts—
and for constitutional law—if the courts become the commonly used
sites for the resolution of cases that implicate contested social customs
and norms. For this to happen, however, the judiciary—and its allies
in civil society—must “take the courts to the people.”288
In her recent important work on the judicial role in contemporary
eastern and southern Africa, Jennifer Widner highlights how certain
287. Some African constitutions recognize the problem by extending constitutional

protection to a “right to administrative action that is lawful, reasonable, and procedurally
fair.” Promotion of Administrative Justice Act No. 3 of 2000 (S. Afr.). Ghana’s constitution,
for example, provides that “[a]dministrative bodies and administrative officials shall act fairly
and reasonably and comply with the requirements imposed on them by law and persons
aggrieved by the exercise of such acts and decisions shall have the right to seek redress
before a court or other tribunal.” GHANA CONST. art. 23 (1992). In practice, however, no
legislation regulating the exercise of administrative discretion exists in Ghana.
Governmental bodies often do not publish their regulations, and whatever regulation exists
has often been overridden by longstanding practice to the contrary. Meaningful reform in this
area must begin with reform of the overall statutory framework for administrative justice,
such has now exists in South Africa with the enactment in 2001 of the Promotion of
Administrative Justice Act, supra. An omnibus administrative justice statute should regulate
both administrative “rulemaking” (or, in common law parlance, the making of subsidiary
legislation) and administrative “adjudication” (that is, administrative application of rules in
individual cases). Currently in common law Africa, matters concerning subsidiary
legislation—who makes it, how it is made, where it may be found, etc.—are all matters about
which there is far more public ignorance than knowledge. Yet it is mostly these inaccessible
and unknown “laws” that regulate the daily lives of the African citizenry. Reform of
administrative law must therefore include reform of the process of administrative rulemaking,
such as by introducing statutory requirements for transparency, public notice, and public
participation in the rulemaking process. See Kim Stanton, The Subsidiary Legislation
Process in Ghana: Review and Recommendations for Reform, CRIT. PERSP., May 2003, at
13-17.
judicial elites have worked to create and build “a broad base of support
among the public at large.”289 Using Tanzania’s former chief justice
Francis Nyalali as her model, Widner tells of judges and courts in
common law eastern and southern Africa that have stepped beyond
their traditional adjudicatory roles to initiate and organize outreach and
public legal literacy programs (using a variety of media) and to
address longstanding problems of access, delay, and corruption in the
judicial system.290 Unfortunately, such judge-led initiatives aimed at
building social legitimacy for the courts are not commonplace across
Africa.
2. The Challenge of Judicial Independence

In general, Africa’s postauthoritarian constitutions carry the
minimum standard provisions deemed necessary to protect judges, as
well their jobs, salaries, jurisdiction, and judgments, against political
manipulation or reprisal. The grant or guarantee of judicial
independence in modern African constitutions does not, however,
suggest elite precommitment or fidelity to the principle. For Africa’s
political elites, under pressure from international donors and creditor
nations to demonstrate their democratic credentials, a formal
constitutional guarantee of judicial independence makes for regime
“presentability.” In practice, judicial independence remains vulnerable
to political control.
The problem is partly one of perception—the widespread public
perception of African courts and judges as executive-minded and
pliable. This perception is a carryover from the periods of
authoritarianism, when the courts were unable to countervail
governmental power. It is a perception made worse by a widespread
belief that judges are corrupt or otherwise easily corruptible.
Problems with judicial independence in postauthoritarian Africa
are, however, not merely imagined or perceived; they are also real.
And they exist at both the institutional and the decisional level.
At the institutional level, Africa’s new constitutions honor
conventional separation-of-powers principles by organizing the courts
into a separate, self-managed branch of government with exclusive
functions and jurisdiction. In practice, however, the judiciary, lacking
the power of the purse, must depend on the legislative and executive
branches for the resources with which to operate.291 In Africa, this
289. Id. at 395.

290. Id. at 214-334.
291. See, e.g., Gloppen, supra note 252, at 127.
dependence is made worse by the fact that the judiciary has

historically been severely under-resourced, leaving it with inadequate
and outmoded technology, dilapidated and overcrowded courthouses
and offices, and underpaid judges and staff. 292
In the face of these resource deficits and the consequent
demoralization of judges and other judicial personnel, Africa’s chief
justices are compelled, as heads of their institutions, to take aggressive
steps to secure the appropriate levels of budgetary appropriations from
the legislative and executive branches. Even in countries like Ghana,
where the constitution authorizes the chief justice to prepare and
submit the judiciary’s budget requests directly to Parliament without
prior recourse to, or routing through, the executive,293 in practice the
Minister of Finance remains the ultimate decision-maker, as it is the
Minister who still must decide whether legislatively appropriated
funds are available or when and in what amounts appropriated funds
may be disbursed to a designated statutory recipient during the fiscal
year.294 Chief justices thus must constantly seek audience with and
cajole influential politicians for resources to run the courts. While
influential, assertive and reform-driven chief justices like Tanzania’s
Nyalali might be able to use their political access to press the case and
win concessions for more autonomy and resources for their courts,295
for others of less stature or resolve ex parte dealings with politicians
could open the door for politicians to exert improper, if subtle,
influence on the judiciary. The danger to judicial independence
stemming from these kinds of informal encounters between chief
justices and ruling party politicians becomes more evident when one
considers the immense power that chief justices wield within their
institutions in common law Africa.
The role of a chief justice in common law Africa is comparable
to, and fashioned after, that of the Lord Chancellor in England,
although the latter’s functions and powers have evolved and
292. Id.
293. GHANA CONST. art. 179 (1992).
294. Widner explains that many African governments, under pressure from their
international financiers, have moved to “cash budgets,” which means that the amount of
appropriated funds that is actually disbursed to the designated agency depends on
government’s actual tax collection for the relevant period. Jennifer Widner, Judicial
Independence in Common Law Africa, in OFFICE OF DEMOCRACY AND GOVERNANCE
GUIDANCE FOR PROMOTING JUDICIAL INDEPENDENCE AND IMPARTIALITY 48 (2002), available
at http://www.ifes.org/publication/0e49c032c28f9cb0a181630f281eda5a/judicial_independence.pdf.
295. WIDNER, supra note 27, at 191 (describing Nayali’s tendency to use meetings
with political leaders to advance his plans for reforming the courts).
diminished where the former’s have remained largely unchanged.296

As administrative head of the judiciary, the African chief justice has
authority to make a wide range of decisions affecting the career and
comfort of subordinate or colleague judges. These include decisions
about geographic transfers, discipline, allocation of office space and
housing, even assignment or reassignment to particular divisions of a
court or to certain cases.
In some cases, the chief justice’s supervisory powers extend to
his or her colleagues on the apex court.297 In Ghana, for example,
where the Supreme Court hears cases in panels, rather than en banc,
the chief justice determines the composition of each such panel.298 As
one eminent common law jurist has said of the similar power of the
erstwhile Lord Chancellor of England to allocate cases to different
panels of the Court of Appeal or the House of Lords, “[t]he power to
choose (in effect) which judges will hear which cases is plainly one
which can be misused, because it will often be known that a certain
judge has at least a prima-facie view on the point of law to be
decided.”299 This power of a chief justice to engage in what is, in
effect, forum shopping at different levels of the judiciary (including, in
some cases, on courts with either original or final constitutional review
jurisdiction) poses a clear danger to the decisional independence of the
other judges. Yet, despite its inherent tendency to undermine an
important constitutional and institutional value or the fact that it
derives no authority from a constitutional text (being a matter only of
common law judicial convention), this practice has gone largely
unchallenged within Africa’s tradition-bound legal community.
3. The Challenge of Judicial Accountability

A judiciary that has internalized norms of accountability in the
exercise of its own power is more likely to enforce such norms against
other state actors. Judicial accountability is therefore an indispensable
part of an effective infrastructure of constitutionalism. Yet, judicial
accountability is a largely ignored subject. Perhaps believing, after
296. Compare CATHERINE ELLIOTT & FRANCES QUINN, ENGLISH LEGAL SYSTEM 99 (3d
ed. 2000) (describing the powers of the Lord Chancellor), with 10 T.O. ELIAS, GHANA AND
SIERRA LEONE: THE DEVELOPMENT OF ITS LAWS AND CONSTITUTIONS 136-40 (1962)
(describing the powers of the African Chief Justice and the structure of the African judicial
system).
297. See, e.g., GHANA CONST. arts. 125, 84; 128, 83; 136, 881.4; 139, 881.3; 142; 144,
84; 146; 151, 81; 152, 81; 153; 157, 81; 158, 81; 159 (1992) (listing a variety of powers
granted to the chief justice).
298. Id. art. 142.
299. ATIYAH, supra note 320, at 17.
Alexander Hamilton, that the judiciary is “the least dangerous

[branch],”300 architects and scholars of constitutionalism have tended
to focus their energies almost exclusively on limiting the power of
those officials and institutions that control the “purse” and the
“sword.” Rarely is judicial power reckoned as one of the powers that
also needs checking.
The problem is often how to or who should enforce judicial
accountability.301 In certain legal cultures, notably the United States, a
constant flow of commentary and reporting on judicial decisions and
judicial conduct by legal professionals, the legal academy, and the
media, works to keep a vigilant and critical public eye on the courts
and thus constitutes an important component of the system of judicial
accountability. In common law Africa, however, strict application of
certain archaic English common law doctrines continues to shield the
courts and judges from robust media and public criticism or
commentary.302
Courts in Africa continue to invoke the sub judice rule, for
example, to sanction or punish persons and media that publish
contemporaneous opinions about matters pending before the courts,
even when they do not involve jury trials.303 Worse still, from the
standpoint of fostering judicial accountability, is the continued use by
Africa’s courts of a strand of the common law crime of contempt
known as “scandalizing the court.” This nonstatutory offense allows
courts to punish as contempt of court the use, in writing or orally, of
words calculated to bring a court, a judge, or the administration of
300. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 272, at 284.
301. An example from a recent incident in Ghana illustrates the difficulty. In 2002,
the judiciary committee of Ghana’s parliament announced that it would be holding hearings
into reports or growing perception of widespread corruption in the judicial system. See U.S.
Dep’t of State, supra note 228; Kwesi Wrekon Obeng, Corruption Is Real in the Judiciary,
PUB. AGENDA, June 19, 2003, http://www.ghanaweb.com/public_agenda/article.php?ID=
1486. The committee explained that its interest was not in specific cases or instances of
judicial corruption, but in the “macro” dimensions of the problem. Shortly after this
announcement, the chief justice publicly objected that the planned hearings represented a
frontal attack on the independence of the judiciary and that any problem of corruption within
the judicial system was a matter for the chief justice to deal with without the “intervention” of
the political branches. In the end, the parliamentary committee went ahead with its hearings
and the chief justice pledged the cooperation of judges and judicial staff after receiving
assurances from the committee that action on the committee’s findings and recommendations
would rest with the chief justice. This episode could simply be a case of a chief justice taking
judicial “independence” rather (too) literally. But the case does illustrate the tension that
arises when nonjudicial state actors attempt to impose or enforce judicial accountability.
302. See infra notes 313-351 and accompanying text.
303. See, e.g., Republic v. Bonsu, ex parte Attorney Gen., [1996] 1 COMMONWEALTH
HUM. RTS. L. DIG. 49 (Ghana), available at http://www.worldlii.org.
justice generally into disrepute or contempt.304 The Ghana Supreme

Court, for example, convicted and imposed jail terms of a day and a
month respectively, plus fines in each case, on a newspaper columnist
and its publisher for comments made in a column which imputed bias
and “chicanery” to a justice of the supreme court whose published
opinion in a politically sensitive case was alleged to have differed from
the copy of his judgment read out in open court.305 Courts in Africa
and other common law jurisdictions have rejected free speech
challenges to this common law crime.
Judicial accountability in contemporary Africa is also hampered
by a dearth of professional and academic commentary on judicial
decisions. As Professor Seidman has observed, “[c]ourts write
opinions mainly for other judges and lawyers to read. They purport to
give reasons which the deciding judge believes will persuade his
professional peers that the decision matches the appropriate rules for
justification.”306 Thus, it is important—at least for the sake of judicial
accountability—that judicial opinions are regularly and timely
published, and that, once published, they are subjected to study,
analysis, and critical commentary and discussion within the
community of legal professionals.307
Academic lawyers have a special role to play in this regard.
Because practicing lawyers are generally more concerned with
winning the case on hand, their professional focus is to find and apply
in their clients’ favor the law as it is, whereas academics can afford to
be concerned with what the law should be. Moreover, since African
“legal and judicial communities are small,”308 lawyers who practice in
Africa’s courts may be understandably reticent about criticizing the
judgment or opinion of judges before whom they are likely to appear
often.309 Academic lawyers, freed from such pressures, are better
placed to “engage the flaws and merits of [judicial] opinions in a more
rarified atmosphere without advancing or jeopardizing the interests of
a client.”310 The role of the academic lawyer—and especially of the
constitutional scholar—in this regard is “to render both a second
304. See id.

305. Id.
307. PREMPEH, supra note 17, at 88.
308. Jennifer Widner, How Some Reflections on the United States’ Experience May
Inform African Efforts To Build Court Systems and the Rule of Law, in DEMOCRATIZATION
AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF COURTS IN NEW DEMOCRACIES,
supra note 213, at 27, 42.
309. Id.
opinion of sorts on what the courts have already decided and an

advisory opinion on what they may yet decide in the future.”311
In much of contemporary Africa, however, this vital avenue for
judicial accountability remains woefully underdeveloped and
underexploited. Academic and professional law journals, which in
other legal cultures offer legal specialists a medium to engage in
critical and constructive discourse about contemporary and topical
cases and other legal developments, are either unavailable or else
appear only irregularly and infrequently in most African legal
communities. In Ghana, for example, scholarly critiques of
constitutional law cases have been noticeably absent in recent years,
despite important new additions to the corpus since constitutional
litigation and adjudication resumed in the country’s courts in 1993.
The problem is partly due to long delays in reporting and publication
of court judgments, a problem which some African judiciaries, like
those of Zambia and Uganda, have tried to overcome by publishing
key decisions of their superior courts promptly on their institutional
sites on the World Wide Web.312 However, lack of initiative on the
part of the bar and legal academy remains the reason for the persistent
deficit in this area
4. The Challenge of Jurisprudence

Judicial review is commonly presumed to be a check on the
power and conduct of politicians. However, as Alexander Bickel has
reminded us, “[j]udicial review means not only that the Court may
strike down a legislative action as unconstitutional but also that it may
validate it as within constitutionally granted powers and as not
violating constitutional limitations.”313 Thus, judicial review
“performs not only a checking function but also a legitimating
[function].”314 Therefore the mere grant of judicial review power,
even under conditions of judicial independence, offers no assurance
that it will be employed to aid the cause of constitutionalism. In the
end, the fate and impact of judicial review in post-authoritarian Africa
would depend, to a large extent, on the philosophic attitudes,
background assumptions, and outlook that judges bring to the task of
interpreting the constitutional text.
311. PREMPEH, supra note 17, at 88.

312. See, e.g., Republic of Uganda, Courts of Judicature, http://www.judicature.go.ug
(last visited Mar. 28, 2006).
313. BICKEL, supra note 23, at 29.
314. Id.
On the whole, the bills of rights found in Africa’s modern

constitutions provide a strong textual foundation for the development
of a rights-friendly jurisprudence. Concerns and uncertainties remain,
however, in the area of judicial attitudes and interpretive
methodologies. Among Africa’s judges and lawyers, the persistent
influence of common law thinking and approaches to interpretation, as
well as a residual cultural relativism in judicial attitude toward rights,
are tendencies that could obstruct the emergence of a robust
jurisprudence of rights even under the best of circumstances.315
a. The Common Law in a Constitutional Era

In Africa’s common law jurisdictions, the common law and its
doctrinal traditions, philosophic underpinnings, and styles of reasoning
and interpretation, retain substantial prestige and influence among
lawyers and judges, often supplying the default rules and norms for
framing and analyzing even constitutional questions. On its face,
fidelity to common law doctrine and methods of interpretation might
appear to pose no difficulty for rights in an age of constitutionalism.
After all, such important safeguards of liberty as the writ of habeas
corpus and contemporary notions of “due process” had their ancestry
in the common law.316 The fact, too, that constitutionalism has thrived
and endured in England, despite the absence in that country, until very
recently, of even a statutory bill of rights, further bolsters the
reputation of English common law as a protector of civil and political
liberty. In fact, occasionally during periods of authoritarian rule in
Africa, some judges were able (temporarily) to impede arbitrary
executive actions by recourse to common law legalism.317
Yet, the common law, in its method, substance, and philosophical
underpinnings, carries with it elements and tendencies that do not
accord with the transformative vision reflected in modern bills of
rights. Much of the problem stems from the basic constitutional and
jurisprudential paradigm upon which English common law is built,
namely Austinian positivism and Diceyian parliamentary
315. See generally H. Kwasi Prempeh, A New Jurisprudence for Africa, in THE
GLOBAL DIVERGENCE OF DEMOCRACIES 260, 266 (Larry Diamond & Marc F. Plattner eds.,
2001) (discussing challenges confronting a right-friendly jurisprudence in newly
democrazing African states).
316. See Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review
Reconsidered, 70 NOTRE DAME L. REV. 1079, 1080 (1995) (“The writ [of habeas corpus] is
deeply based in the English common law, dating back to at least the thirteenth century.”).
317. See, e.g., Lakanmi v. Attorney-Gen. (West), 5 NIG. L.Q. 133 (1970) (holding that
the bill of rights of the previous constitution is not to be deemed to have been impliedly
suspended as a result of a military coup).
sovereignty.318 In an age of judicial review and constitutional

supremacy, these ideas can be problematic.319 In the specific context
of contemporary Africa, judicial fidelity to the common law method
and style of interpretation, particularly the common law presumption
of constitutionality in the interpretation of statutes and the treatment of
constitutional limitation clauses as run-of-the-mill derogation or
“clawback” clauses, present significant difficulties for rights.
The traditional common law jurist approaches the interpretation
of legal texts in a mechanical and literal fashion,320 concerned as she is
with enforcing strictly the expressed will of a sovereign legislature.
Thus, judges steeped in the common law tradition, as most of Africa’s
Anglophone judges and lawyers are, frequently treat problems of
textual interpretation as “semantic matters . . . rather than as issues
which call for identification and analysis of inevitably competing
interests.”321 Far more attention is given to the dictionary meaning of
words and to canons of interpretation than to underlying policy
concerns or the implications for constitutionalism of a particular
interpretive choice.322
Although the common law approach developed largely in the
context of private law litigation and statutory interpretation within a
system of parliamentary sovereignty, African courts have often
extended this same approach to the interpretation of constitutional
texts. Africa’s common law judges embarked on the task of
constitutional interpretation have often acknowledged the need, and
have admonished their peers, to differentiate constitutional
interpretation from the interpretation of statutes and other legal
318. See David Jenkins, From Unwritten to Written: Transformation in the British
Common-Law Constitution, 36 VAND. J. TRANSNAT’L L. 863, 867-905 (2003).
319. See, e.g., EDWARD MCWHINNEY, JUDICIAL REVIEW 213 (4th ed. 1969) (“The more
positivist-minded judges may feel that it is their duty to interpret a constitutional Bill of
Rights harshly, insofar as the Bill constitutes an interference with and abridgement of
governmental legislative powers; that strict and literal interpretation should be the key-note in
judicial review, and that care should be taken not to expand the Bill’s operation beyond its
express terms.”).
320. See, e.g., P.S. ATIYAH, LAW AND MODERN SOCIETY 164 (2d ed. 1995) (referring to
the “narrow and literal methods of interpretation commonly used by English judges in
interpreting ordinary Acts of Parliament”).
321. Paul, supra note 19, at 860.
322. See id.; see also Lord Irvine, Lord Chancellor, The Common Law Origins of
English and American Law, Address at the Inner Temple Lecture 81 (Mar. 22, 2000)
(describing the “narrow function” of the common law to resolve dispute between the
disputants as focusing “attention on the immediate interests of the parties, and away from
broad theoretical constructs or considerations of public policy”).
texts.323 Yet, even where the constitutional text itself invites judges to
consider the “spirit of the constitution” in interpreting the letter,324
Africa’s common law judges have sometimes declined the
invitation.325 In fact, it is not uncommon for Africa’s common law
judges to rely on pre-existing Interpretation Acts326 to interpret
disputed constitutional text.327
In short, decisions rendered by Africa’s courts in a number of
constitutional cases continue to reflect the enduring influence of the
common law’s tendency toward mechanical and narrow interpretation.
Characteristically, the opinions in most constitutional cases have
tended to follow the “formal style” of justification.328 The reasoning
in constitutional cases is thus largely doctrinal and legalistic, with no
effort made to buttress them in, or harmonize them with, any grand
constitutional principle or value.329 Such an approach to constitutional
interpretation tends to resolve textual ambiguity in favor of
conventional understandings.330
Fidelity to the common law among African judges creates further
difficulty for the development of constitutional rights because of the
common law doctrine according presumptive validity or
constitutionality to legislative acts. This presumption means that, a
court presented with a challenge to the constitutionality of a statute (or,
in some cases, even a piece of subsidiary legislation) must proceed on
323. See, e.g., Tuffour v. Attorney-Gen., [1980] GLR 637 (Ghana) (Sowah, JSC) (“A
written Constitution such as ours in not an ordinary Act of Parliament. . . . A broad and
liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A
doctrinaire approach would not do. We must take account of its principles and bring that
consideration to bear, in bringing it into conformity with the needs of the times.”).
324. See, e.g., GHANA CONST. art. 21, § 4 (1992) (providing that laws be “reasonably
justifiable in terms of the spirit of [the] Constitution”).
325. See, e.g., New Patriotic Party v. Attorney-Gen., Suit No. 18/93 (Sup. Ct., Ghana
S.C.) (unreported) (Archer, C.J., dissenting), discussed in BUTA-BIMPONG, supra note 83.
326. An Interpretation Act is an omnibus legislation that sets forth the authoritative
definitions, canons, and other guideposts that a country’s judges must employ in the
construction of statutes and other legal texts. In a system of constitutional supremacy, the
Interpretation Act cannot, of course, be deemed controlling in matters of constitutional
interpretation.
327. See, e.g., Republic v. Tommy Thompson Books Ltd., [1996-97] S. Ct. G.L.R.
804, 834-64 (Ghana) (Kpegah, J.S.C.).
328. Seidman, supra note 19, at 843-44.
329. See id.
330
See, e.g., Asare v. Attorney General, Writ No. 3/2002 (decided, Jan. 28, 2004, Sup.
Ct., Ghana) (unreported, copy with author) (holding, partly in reliance on long-
established practice, that a provision of the national constitution designating the Speaker
of Parliament to act as President whenever both the President and Vice President are
“unable to perform” the duties of their offices may be read to allow the Speaker to be
sworn in as Acting President when the President and Vice President are, by virtue of
foreign travel, both temporarily way from the country).
the assumption that the law in question is constitutional, thus placing

the burden of proving the contrary on the challenger.331 In effect, the
common law has a built-in bias in favor of power (the state), rather
than liberty (the individual).
The policy of judicial deference to legislative action that the
presumption of constitutionality underscores is defended on the
ground that legislation, being the deliberative output of the people’s
representatives, possesses superior democratic legitimacy and is thus
entitled to special solicitude in a democracy.332 In the common law
world, this rationale is tied to the notion of parliamentary
supremacy.333 Where legislation is alleged to infringe a constitutionally
protected right, however, the constitution’s status as supreme law
should normally result in a denial or reversal of the presumption.334
Yet even in such circumstances, some judges in postauthoritarian
Africa have insisted on giving legislation the benefit of the
presumption. For example, in a 1997 Ghana criminal libel case, the
author of the lead opinion stated emphatically that, “there is a
presumption in favour of validity when one is considering a
legislation; even a law which imposes limitations on free speech is
presumed valid till the proponent of invalidity or assailant of the law
shows otherwise.”335 The law at issue in that case survived
constitutional challenge.336
Wholesale application of the presumption of constitutionality
threatens regressive consequences for rights in contemporary Africa,
because the doctrine serves to privilege not only laws passed by
current democratic legislatures, but also the vast stock of oppressive
laws from past authoritarian regimes, including military decrees and as
yet unrepealed colonial-era ordinances that remain on the statute
books.337 If judicial deference to democratic institutions is what
entitles legislative enactments to a presumption of constitutionality,
then that rationale is clearly unavailing with respect to those laws that
were enacted (usually for oppressive purposes) by nondemocratic
331. Id.
332. NWABUEZE, supra note 19, at 255.
333. Grace P. Tumwine-Mukubwa, Ruled from the Grave: Challenging Antiquated
Constitutional Doctrines and Values in Commonwealth Africa, in CONSTITUTIONALISM IN
AFRICA, supra note 7, at 292.
334. Id.
335. Republic v. Tommy Thompson Books, Ltd., [1996-97] S. Ct. G.L.R. 804, 851
(Ghana) (Kpegah, J.S.C.).
336. Id. at 806.
337. A 1987 study conducted by the law reform commission in Nigeria found 195 pre-
1900 English statutes that were still valid law in Nigeria. Oko, supra note 38, at 623 n.250.
Most of Ghana’s laws are from the 1960s or the era of military regimes.
regimes, often by military fiat or by unrepresentative, single-party

legislatures. Typically, such laws will have been held over from the
authoritarian era by the operation of a “savings” clause in the new
constitution.338 However, merely because they must be presumed valid
in the post-transition period until repealed or overturned does not
entitle these laws to a judicial presumption of constitutionality.
Because the presumption of constitutionality is a matter of judicial
policy, courts are not duty bound to extend it to all classes of
legislation. In fact, in constitutional cultures like the United States,
India, and Canada, the presumption is not extended to laws that affect
constitutionally guaranteed rights.339 In postauthoritarian Africa,
preexisting laws enacted by one-party parliaments or military regimes
should similarly be denied the benefit of the common law
presumption.340
A third area in which common law thinking is problematic for
rights in Africa concerns the treatment of “limitation clauses.” Nearly
every constitutional statement of rights also attaches limitations to the
breadth of the right in an attempt to harmonize the interests of the
individual right-bearer with other public or societal values.
Constitutional litigation about rights usually turns on the meaning and
scope of such limitation clauses.
A common formulation of the modern limitation clause provides
that a restriction of a constitutional right must come in the form of a
“law” (as opposed to arbitrary executive action), which law must be
necessary or “reasonably required” to accomplish certain specified
social goals (such as public order) as well as be in harmony with the
needs and values of a “democratic society.”341 Limitation clauses
338. See, e.g., GHANA CONST. art. 11, § 5 (1992) (“Subject to the provisions of this
Constitution, the existing law shall not be affected by the coming into force of this
Constitution.”). The “existing law” is defined to include “written and unwritten laws of
Ghana as they existed immediately before the coming into force of this Constitution, and any
Act, Decree, Law or statutory instrument issued or made before that date, which is to come
into force on or after that date.”). Id. art. 11, § 84.
339. Compare United States v. Morrison, 529 U.S. 598, 607 (2000) (describing the
presumption of constitutionality usually given by courts to congressional enactments), with
Johnson v. California, 543 U.S. 499, 504-05 (2005) (describing the burden imposed on
government to justify race-based classifications).
340. See Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme
Court in a Democracy, 116 HARV. L. REV. 19, 25 (2002) (“A judge should not advance the
intent of an undemocratic legislator. He must avoid giving expression to undemocratic
fundamental values.”).
341. For example, in Canada, the rights set out in the Charter of Rights and Freedoms
are subject “only to such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society.” Constitution Act, 1982, Schedule B to the Canada Act
found in Africa’s contemporary constitutions generally follow this

standard formulation.342 Judicial interpretation and implementation of
this formulation is where problems often arise.
The problem begins with the way the common law
conceptualizes and approaches the question of rights. In the common
law tradition, rights are residual in character, “comprising the range of
conduct that has not been . . . cut down by statute or common law
rules.”343 Thus defined, rights are prima facie insecure under a
common law regime, as the existence and scope of a particular right
becomes a matter of legislative grace. This view of rights stems from
the common law’s understanding of where rights come from. In the
common law universe, rights, like the limitations placed on them,
come from the same source: the legislature. Thus, what the legislature
has given, the legislature can freely take back.
This conception of rights might cause a common law judge who
has minimal experience of liberal constitutional jurisprudence to
approach a claim of right by beginning with the statutory limitation
and then work his way backward to find how wide a scope the
limitation covers in order to infer what is left to be enjoyed as a right.
Thus, for example, when confronted with an individual claim of a
right to freedom of speech, the traditional common law response is to
first recognize the limitations imposed by the laws of defamation,
sedition, and the like, and then to determine if the regulated conduct
indeed falls within the existing doctrine that defines the scope of the
statutory or common law offense. If it does, the inquiry is at an end:
there is no infringement of right to complain of.
This is precisely how the Ghana Supreme Court approached the
question of the constitutionality of the criminal libel statute at issue in
Republic v. Tommy Thompson Books Ltd.344 The majority
acknowledged that the right to freedom of speech, including freedom
of the press, is indeed guaranteed as “fundamental” by the
1982, ch. 11 (U.K.), reprinted in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD Release
99-7 (Gisbert H. Flanz ed., 1999).
342. See, e.g., MALAWI CONST. art. 44 (2) (1994) (“[N]o restrictions or limitations may
be placed on the exercise of any rights and freedoms provided for in this Constitution other
than those prescribed by law, which are reasonable, recognized by international human rights
standards and necessary in an open and democratic society.”).
343. Lord Irvine, supra note 322, § 3.1.1; see also ERIC BARENDT, FREEDOM OF
SPEECH 40 (2005) (observing that, in the English common law scheme, freedom of speech
exists “where statute or common law rules [do] not restrict its exercise”).
344
Republic v. Tommy Thompson Books Ltd., [1996-97] S. Ct. G.L.R. 804
(Ghana)
constitution.345 However, it then went on to find that the conduct for

which the defendants were being prosecuted fell within the doctrinal
boundaries of the statutory offense.346 Thus, the defendants’
constitutional challenge to the criminal libel statute failed. Justifying
the result, one of the justices in the majority observed, in effect, that a
legislative enactment limiting a right cannot be an unreasonable
limitation.347 In his view, it is for Parliament, not the courts, to repeal
the law criminalizing libel.348 The opinions of the judges in the
majority were interspersed with approving references to Blackstone.349
Contrary to traditional common law understandings, however, a
constitutional limitation clause is not simply another name for the
common law clawback clause. Like the clawback clause, a limitation
clause in a constitutional bill of rights acknowledges that rights, even
constitutionally guaranteed rights, are not absolute. But the limitation
clause does more—a great deal more—than state the obvious. Where
a constitution extends protection to a certain right, the function of a
limitation clause is to specify the limited grounds upon which the
protected right may be restricted, the form that any such restriction
must take, and the permissible scope or boundaries of any purported
restriction.350 In other words, the primary purpose of a constitutional
limitation clause is to limit the governmental restrictions themselves.
And the clause does so by indicating the limited ends that the
restriction must serve as well as the limited nature of the means it may
employ. Thus, in a case involving a claim of right vis-à-vis a
governmental restriction of that right, what should be on trial is the
governmental restriction, not the constitutional right. The effect of the
restriction on the essence of the right is a primary factor in determining
constitutionality.351 The evolving comparative jurisprudence
emphasizes the principles of necessity, reasonableness, and
proportionality (least restrictive means), as benchmarks that reviewing
courts must apply in evaluating the constitutionality of a particular
statutory restriction.
345. See id. at 842 (Kpegah, J.S.C.).

346. See id. at 850-51.
347. See id. at 876 (Amuah, J.S.C.).
348. Id.
349. See, e.g., id. at 865 (Adjabeng, J.S.C.).
350. See Prempeh, supra note 315, at 266.
351. See, e.g., The Queen v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 331 (Can.)
(“[B]oth purpose and effect are relevant in determining constitutionality; either an
unconstitutional purpose or an unconstitutional effect can invalidate legislation.”).
b. The Problem of Cultural Relativism

The development in contemporary Africa of a jurisprudence that
advances constitutionalism must also contend with the problem of
cultural relativism. The liberal conception of the individual as a bearer
of rights enforceable against the collective, i.e., the state, has always
met with resistance from an influential segment of Africa’s intellectual
and governing class, including sections of the legal and judicial
elite.352 This school of thought posits, in counter-opposition to the
liberal notion of individual rights, a so-called “African” concept of
human rights.353
In the early decades of sovereign statehood in Africa, the
“African” concept of human rights formed an important part of the
intellectual and political arsenal deployed by the continent’s ruling
elites to reject demands for democracy and civil and political
liberties.354 With the dismal failure of the authoritarian project across
Africa has come growing popular and intellectual rejection of its
ideological and intellectual underpinnings, including its positing of an
inherent tension between democracy and development and between
civil/political rights and social/economic rights. Nonetheless, the
cultural relativist challenge to the universality of human rights retains
influential, if diminishing, support amongst elements of Africa’s
tradition-bound elites, including, significantly, the judicial elite.
In Tommy Thompson,355 the defendants were charged with
criminal libel for publishing certain allegations about Ghana’s First
Lady, and with seditious libel, for publishing “false reports which were
likely to injure the reputation of the government.”356 At trial, the
defendants objected to their prosecution on constitutional grounds,
arguing that the statutes under which they had been charged violated
multiple provisions of Ghana’s constitution that guarantee freedom of
352. See Sakah S. Mahmud, The State and Human Rights in Africa in the 1990s:
Perspectives and Prospects, 15 HUM. RTS. Q. 485, 492-95 (1993).
353. The central claim of this relativist school is that “African culture” is
communalistic or group-centered rather than individualistic; therefore, a concept of rights that
has the individual as its primary focus is alien to and subversive of the cultural integrity of
African society. Specifically, this “African perspective” on rights rejects the standard set of
so-called “Western” civil and political rights, among them freedom of speech and expression,
as luxuries that an impoverished people do not need and can ill afford. Instead, Africans are
said to be interested primarily in the “right to development,” the realization of which
demands a shift of focus from “civil and political” rights to “social and economic” rights.
354. See Mahmud, supra note 352, at 494 (“African rulers use [African communal]
values . . . as a way to consolidate their rule and to accumulate capital.”).
355. See Republic v. Tommy Thompson Books Ltd., [1996-97] S. Ct. G.L.R. 804-05
(Ghana).
356. Id. at 804.
speech and of the press.357 In a unanimous decision, the Ghana

Supreme Court upheld the criminal libel statute against petitioners’
constitutional challenge.358 A majority of the Court similarly ruled the
seditious libel statute constitutional.359
Rejecting the petitioner’s submissions, the Ghana Supreme Court
defended the offense of seditious libel as compatible with traditional
Ghanaian culture, noting, in its lead opinion, that, “[o]ur culture and
custom abhor insulting the occupant of a stool (that is a chief); and
such a conduct is taken to be disrespect for the stool itself, ipso facto,
the State.”360 The writer of the lead opinion continued:
I can see nothing in these [statutory] provisions than an attempt to
extend to the modern state and government our customary protection to
the stool, its occupant and the whole Oman or Duko or the State. This
accords perfectly with our cultural values and cannot be said to be
against the spirit of the Constitution, and this consideration must guide
us in interpreting section 185 of the Criminal Code, 1960.361
Cultural relativism in rights jurisprudence is, of course, well
known to students of U.S. constitutional law. In U.S. rights
jurisprudence, whether a claim of right is entitled to federal
constitutional protection as a fundamental right turns principally on
whether it has roots in the “traditions” of the American people.362 In
357. The laws at issue had been first introduced into Ghana during the colonial period
in reaction to growing nationalist protest aided by an anticolonialist press. The version of the
law under which the petitioners were charged had been enacted in 1961, when Ghana’s
constitution and laws criminalized political dissent and opposition, affirmed the supremacy of
parliament, and contained no judicially enforceable protections for free speech. Id. at 818-19.
Thus, the petitioners maintained that the offenses of criminal and seditious libel were the
product of a bygone authoritarian era and, at any rate, were inconsistent with the terms of a
constitution that expressly stated, that “[e]ditors and publishers of newspapers and other
institutions of the mass media shall not . . . be penalised or harassed for their editorial
opinions and views, or the content of their publications.” Id. at 843 (quoting GHANA CONST.
art. 162, § 4 (1992)).
358. Id. at 806-10.
359. Id.
360. Id. at 856.
361. Id. at 858.
362. See, e.g., Washington v. Glucksberg, 521 U.S. 702,720-21 (1997) (stating, in
rejecting claim of a right to physician-assisted suicide, that the protection afforded by
‘substantive due process’ is reserved for fundamental rights and liberties “deeply rooted in
the Nation’s history and traditions”). Certain recent decisions of the United States Supreme
Court suggest the emergence of a thin majority of Justices in favor of using not only the
“traditions of the American people” but also contemporary international human rights
standards and comparative case law as guideposts to determine the constitutionality of state
action affecting certain fundamental liberties and interests. See, e.g., Roper v. Simmons, 543
U.S. 551, 574-78 (2005) (citing contemporary international human rights standards and
practice to support ruling that imposition of the death penalty on juvenile offenders eighteen
years of age at the time of the capital offense violates the U.S. constitutional prohibition
the United States, however, judicial recourse to tradition or cultural

relativism in rights adjudication should be understood as an attempt by
federal judges to secure some democratic legitimacy for a
jurisprudence of rights that has no clear or explicit moorings in the text
or history of the constitution. However, where, as in Ghana’s case, an
assertion of right is predicated upon an express grant in the text of the
constitution, judicial recourse to some unwritten (and necessarily
contested) “tradition” is little more than judicial activism of the
regressive kind.363
Cultural relativism in constitutional interpretation threatens rights
in Africa particularly in the area of free speech, as many African
countries continue to have on their statute books “insult laws” that
provide stiff criminal penalties for utterances or publications that bring
the president into “ridicule,” “hatred,” or “contempt”. These laws are
legacies of the colonial and authoritarian past. However, under the
interpretive logic adopted by the Ghana court in Tommy Thompson,
which shows a judicial disregard for the conceptual distinction
between “stool” (monarchy) and “state” (republic),364 such laws might
continue to be employed to intimidate the private media and suppress
criticism of government or the president.365
Given the general doctrinal conservatism of African lawyers and
judges, constitutional reformers in Africa may be well advised to not
leave the question of posttransition jurisprudence to chance. In some
against “cruel and unusual” punishment); Lawrence v. Texas, 539 U.S. 558, 572-73 (2003)
(canvassing contemporary comparative case law and practice to rule unconstitutional state
law criminalizing private consensual homosexual sex).
363. The irony of the Ghana case is that the statute in whose defense so-called
Ghanaian “tradition and culture” was so forcefully marshalled by the court had its ancestry in
the English Statute of Westminster of 1275, when the doctrine of the Divine Right of Kings
(and royal infallibility) reigned supreme. Tommy Thompson, [1996-97] S. Ct. G.L.R. at 818.
364. See id. at 856.
365. With regard to “free speech” in traditional African society, for example, scholars
and specialists of particular African cultures, such as the Akan and other cultures of Ghana,
have disputed the claim that chiefly authority is immune from robust criticism from subjects.
Rather, the scholarly position is that limitations of speech in traditional society are in the
nature of “time, place, and manner” restrictions, not absolute prohibition of impolitic speech.
See KWESI YANKAH, FREE SPEECH IN TRADITIONAL SOCIETY: THE CULTURAL FOUNDATIONS OF
COMMUNICATION IN CONTEMPORARY GHANA 12 (1998) (“It is worth making a clear
distinction . . . between freedom of speech . . . which is an inviolable fundamental human
right that cannot be suppressed, and free speech, which assumes prior compliance with
culturally acceptable norms.”); Wiredu, supra note 165, at 255 (“I know of no sentiment in
the Akan corpus of proverbs, epigrams, tales, and explicit doctrines that lends the slightest
support to any abridgement of the freedom of thought or expression.”); see also H. Kwasi
Prempeh, The Case for a Repeal of the Criminal and Seditious Libel Laws, LEGIS. ALERT,
June 1996, at 3 (describing limitations on public censure of a chief or elder as “place and
manner restrictions,” and noting circumstances in which public criticism of royal or
traditional office holders is appropriate).
common law African countries, notably Malawi and South Africa, the
constitution itself provides interpretive guideposts to direct or
discipline judicial interpretation in a way that safeguards new
constitutional rights. For example, Section 36 of the South African
Constitution, which contains the general limitation clause to the Bill of
Rights, provides as follows:
(1) The rights in the Bill of Rights may be limited only in terms of
law of general application to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human
dignity, equality, and freedom, taking into account all relevant factors,
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.366
In addition, section thirty-nine of the same constitution, titled
“Interpretation of Bill of Rights,” addresses itself specifically to
judicial authorities and others who may be engaged in interpreting or
applying a Bill of Rights provision to a particular case. Under section
thirty-nine, judicial and other officials interpreting the Bill of Rights
“(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom; (b) must
consider international law; and (c) may consider foreign law.”367 In
combination with the language of the limitation clause, this provision
gives South Africa’s judges clear interpretive guideposts when
adjudicating cases involving a provision of the Bill of Rights. Not only
does the interaction of sections thirty-six and thirty-nine reinforce the
primacy of rights under the South African constitutional scheme, it
also liberates judges from needless parochialism and ethnocentrism by
instructing them to consider international and comparative resources in
the interpretation of the Bill of Rights.
Similarly, the new Constitution of Malawi provides that “no
restrictions or limitations may be placed on the exercise of any rights
and freedoms provided for in this Constitution other than those
prescribed by law, which are reasonable, recognized by international
human rights standards and necessary in an open and democratic
society.”368 It adds that a purported restriction “shall not negate the
366. S. AFR. CONST. art. 36, § 1 (1996).

367. Id. art. 39.
368. MALAWI CONST. art. 44, § 2 (1994).
essential content of the right or freedom in question,”369 thus

emphasizing that a governmental restriction of a constitutional right
must be subjected to a heightened degree of scrutiny. In light of the
fact that Africa’s judges have been known to show a disinclination to
consult comparative resources in constitutional cases,370 or else are
handicapped by the unavailability of such materials, the approaches
adopted by the drafters of South Africa’s and Malawi’s constitutions
are a helpful innovation and should make for a more forward-looking
constitutional jurisprudence.
For African judges seeking a “homegrown” constitutional
jurisprudence, the late chief justice of Tanzania, Francis Nyalali, again
offers some interesting and helpful guidance.371 Nyalali urges African
judges interpreting the constitution to look to “the principles and
values which underlay the African liberation struggle and gave birth of
our nationhood.”372 The mobilizing rhetoric behind the African
anticolonial struggle articulated by Africa’s Founding Fathers stressed
the universality of the ideas of democracy, human dignity, equality,
and liberty. Although aware that practice had diverged from principle
upon the attainment of independence, Nyalali nonetheless argues that,
insofar as these publicly expressed principles constituted the ideals and
values upon which the African state had been founded, it is these same
founding or constitutive principles—not the divergent practice or
record of authoritarian governments—that judges must look to for
normative and interpretive guideposts in fashioning a homegrown
African jurisprudence.373
V. CONCLUSION
Constitutions are hardly a novel idea in Africa. Yet
constitutionalism has eluded African states since the early years of
independence in the 1960s. Since the 1990s, however, the progress of
369. Id. art. 44, § 3.
370. See WIDNER, supra note 27, at 397 (quoting a justice from Botswana: “Judicial
Africa is very insular”). In Tommy Thompson, defendants’ reliance on persuasive case law
from other jurisdictions was met with this rather injudicious judicial response:
We shall be doing a lot of disservice to our people if, in developing our
jurisprudence, which should underpin the administration of justice in our country,
we tend to ignore or relegate to the background our customs, traditions and values
but rather opt for a slavish adherence to the unexamined jurisprudence and
concepts from other countries.
Republic v. Tommy Thompson Books, Ltd., [1996-97] S. Ct. G.L.R. 804, 849 (Ghana)
(Kpegah, J.S.C.).
371. WIDNER, supra note 27, at 180-83.
372. Id. at 181.
373. Id. at 180-83.
democratization in several common law African states has opened new

vistas of opportunity for the reestablishment of constitutionalism on
the continent. As a start, most of Africa’s new democracies have
reformed their constitutions, entrenching new bills of rights and
granting courts an express power of judicial review.
In this Article, I have been concerned with assessing the promise
that these processes might represent. Despite understandable
pessimism arising from past failures, fundamental changes in the
social and political environment within Africa’s new democracies
make this latest attempt at constitutionalism more promising in its
prospects. Still, because it rests excessively on judicial review and has
failed thus far to pursue opportunities for structural reform of power in
the African state, this latest effort stops short of what is needed to root
constitutionalism and contain governmental power in postauthoritarian
Africa. Constitutionalism in Africa failed in the past, not primarily
because of judicial failure, as is widely assumed, but principally
because of the aggregation and monopolization of power by a
centralized unitary executive and the successful legitimation of this
policy in supraconstitutional terms. While the democratic constitution
is fast emerging as the primary source of legitimacy for Africa’s new
governments, important gaps remain regarding progress toward
meaningful constitutionalism. Current constitutional reform in Africa
has placed the burden of promoting constitutionalism unduly on the
courts and, for the matter, on episodic judicial enforcement of textual
rights. Further constitutional reform is necessary to reconfigure the
organization and distribution of power within the African state and
thereby tame the executive hegemony and excessive centralization of
power in Africa that continue to characterize government and politics
in Africa. Only then might the promise of a “second liberation” that is
represented by the opening of political space in contemporary Africa
be meaningfully and sustainably realized for the benefit of Africa’s
peoples.

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Marbury in Africa: Judicial Review and the

1. 5 U.S. (1 Cranch) 137 (1803).

STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST-COMMUNIST EUROPE (2000) (discussing the

the democratic ethos of the country’s new constitution.11 In Malawi,

11. New Patriotic Party v. Attorney-Gen., [1993-95] S. Ct. G.L.R. 1 (Ghana).

court order, as it did other adverse judicial rulings in important

17. See H. KWASI PREMPEH, TOWARD JUDICIAL INDEPENDENCE AND ACCOUNTABILITY

assessment of the prospects of constitutionalism in contemporary

22. The term “constitutional moment” is Bruce Ackerman’s famous coinage to

the successful mobilization by Africa’s political elites of the ideology

power and resources, parliaments remain functionally weak (if more

Discussions about Africa often run afoul of the injunction against

II. THE FAILURE OF CONSTITUTIONALISM IN AFRICA BEFORE THE

and governance of African states. Social scientists seeking to describe

governmental action and against the claim of freedom.”39 This datum

A. The (Un)Making of Constitutional Law in Early Postcolonial

39. Seidman, supra note 19, at 827.

44. BENNION, supra note 41, at 221.

That subject to such restrictions as may be necessary for preserving

54. GHANA CONST. art. 13, § 1 (1960).

principles provided, at best, “a political yardstick by which the conduct

republican constitution before it was submitted to a national referendum. In a White Paper,

In Director of Public Prosecutions v. Obi, for example, the petitioner,

65. [1961] N.L.R. 458 (Nigeria).

in power as executive president.69 In effect, the Ugandan prime

The methods approved by the respective national courts in Akoto

B. The Search for Explanation

78. Nwabueze, supra note 19, at 310.

Within domestic communities of lawyers in contemporary Africa,

81. Odinkalu, supra note 40, at 124.

for the influence of bad doctrine. Judicial deference to the will of

90. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED

endeavor which, in Africa’s case, must begin necessarily with the

C. The Colonial Legacy and the Politics of Postcolonial

every intention of holding on to the colonial inheritance.96 The

territorially based subnational communities were summarily dismissed

For postcolonial states, proof of the normative superiority of the

2. The Colonial Legal Order in the Service of the Postcolonial State

governor’s point man at the local level, the legendary district

117. See BING, supra note 113, at 299.

character.122 In contrast to the colonial order, the newly independent

accustomed to on account of the colonial experience), the inherited

3. The Death of Constitutionalism in Africa

127. Okoth-Ogendo, supra 18, at 71.

minimum of social security and social services.”131 These being

135. BING, supra note 113, at 222.

the new Governments of Kenya, Tanzania, and Uganda which they

deemed necessary.145 Other African presidents effected similar power

145. BENNION, supra note 41, at 271-72.

[Tanzania] has dynamic plans for economic development. These

147. Quoted in Seidman, supra note 125, at 105.

concerned about developments in Africa (outside of apartheid

Regarding the Marshall Court itself, Louis Henkin has observed

152. LOUIS HENKIN, THE AGE OF RIGHTS 175 n.* (1990).

that matter, of credible judicial review. A failure on the part of Africa’s

III. PROSPECTS FOR CONSTITUTIONALISM IN CONTEMPORARY AFRICA

161. DAVIDSON, supra note 124, at 290.