Global Constitutionalism in the Context of the Third World: Remarks in Pursuit of a New Paradigm

by | Sep 17, 2019 | AJCL, AJCL 2016

Global Constitutionalism in the Context of the Third World: Remarks in Pursuit of a New Paradigm

Authors Aydin Atilgan

ISSN: 2521-5434
Affiliations: Lecturer at the Near East University, Nicosia, Cyprus
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 131 – 152

Abstract

Global constitutionalism refers to the continuing debate on the character of contemporary international law in the context of the increasing integration in the realm of constitutional law of states. It is also an umbrella term that overarches pro-constitutionalist theories within the international legal theory. However, it largely consists of contributions from Western scholars, with negligible opinions from the rest of the world. The article evaluates a position for the Third World within the debate on global constitutionalism. While doing so, the article not only draws attention to the Western-centric nature of the debate, but also examines the changing structures and paradigms in the Third World.

Another Perpetuation of Incumbency through the Supreme Law: The Conceptualisation of the Presidency under the 1995 Constitution of Uganda

by | Sep 17, 2019 | AJCL, AJCL 2016

Another Perpetuation of Incumbency through the Supreme Law: The Conceptualisation of the Presidency under the 1995 Constitution of Uganda

Authors Fredrick Sekindi

ISSN: 2521-5434
Affiliations: Legal Adviser at Hackney Citizens Advice
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 90 – 130

Abstract

The article discusses presidential authority as conceptualised by the fundamental laws that Uganda has adopted since it was declared a British Protectorate in 1894. Focusing on the Constitution of Uganda of 1995, the article argues that just like erstwhile fundamental laws, it was imposed on the country with the primary purpose of entrenching President Museveni in power, which is demonstrated by an analysis of the nature of the presidency that the Constitution establishes. The article proceeds to analyse how President Museveni has exercised the powers and privileges granted to the presidency under the Constitution with almost no legal constraints, including by perpetuating his incumbency in office without the possibility of him being removed through a constitutional process.

Accommodation and Altercation: The Challenge of Legal Pluralism in India and South Africa

by | Sep 17, 2019 | AJCL, AJCL 2016

Accommodation and Altercation: The Challenge of Legal Pluralism in India and South Africa

Authors Niharika Bahl

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 58 – 89

Abstract

In culturally heterogeneous societies there exist multiple forms of social ordering beyond the ambit of state law. This phenomenon is particularly visible in post-colonial societies of Asia and Africa. Difficulties lie in accommodating plural legal norms within the established constitutional order. Conceptually, legal pluralism seems to be diametrically opposed to the notion of the rule of law. While the principle of the rule of law enjoys an exalted status in modern democracies, the reality is that plurality of legal systems continues to have an impact in society, establishing rules of behaviour, defining ethical norms of social interaction, relieving social and cultural strains, and so on. India and South Africa offer splendid examples of multi-diverse nations with diverse indigenous norms and with value-laden Constitutions. Rule of law guarantee is the core value of both republics. Yet the two nations differ in their approach to provide a space for the accommodation of non-state legal systems within the bounds of constitutional morality. Acceptance of custom as a source of law in the South African Constitution is tempered with a duty for custom to be developed as per constitutional values. Indian courts, on the other hand, are empowered to declare void a usage or custom which runs counter to the fundamental rights. Each approach has led to varying sets of problems and challenges which require being addressed in order to safeguard constitutional supremacy.

Constitutional Dilemmas in the Recovery of Corruptly Acquired Assets in Kenya: Strengthening Judicial Assault on Corruption

by | Sep 17, 2019 | AJCL, AJCL 2016

Constitutional Dilemmas in the Recovery of Corruptly Acquired Assets in Kenya: Strengthening Judicial Assault on Corruption

Authors Tom Kabau

ISSN: 2521-5434
Affiliations: Senior Lecturer at the School of Law, Jomo Kenyatta University of Agriculture and Technology
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 23 – 57

Abstract

Despite widespread incidences of corruption in Kenya, obtaining evidence for the prosecution of offences relating to the vice is highly problematic. As a response to such challenges, the possession of unexplained assets, which is categorised as illicit enrichment in international legal instruments, creates a presumption of corrupt conduct by virtue of section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). On that basis, ACECA shifts the burden of proof to the subject person, requiring him to demonstrate that the property was obtained lawfully. Whilst section 55 of ACECA provides that such court proceedings are of a civil nature, their linkage with criminal prosecution is extremely high, a fact that Kenyan courts seem to take into account while interpreting the scope of the right to a fair trial in such cases. Unexplained assets recovery proceedings are often challenged in court on allegations of violation of the constitutional right to a fair trial, especially the presumption of innocence, and the right against self-incrimination, which are categorised as absolute entitlement under the Constitution. However, widespread corruption erodes accountability, undermines the rule of law and, therefore, establishes conditions in which even the right to a fair trial cannot be realised. It is on that basis that the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Such an interpretative approach may facilitate institutionalisation of accountability in public institutions, including in the Judiciary, and therefore guarantee all Kenyans the right to a fair trial.

Befriending the Judiciary: Behind and Beyond the 2016 Supreme Court Amicus Curiae Rulings in Uganda

by | Sep 17, 2019 | AJCL, AJCL 2016

Befriending the Judiciary: Behind and Beyond the 2016 Supreme Court Amicus Curiae Rulings in Uganda

Authors Christopher Mbazira

ISSN: 2521-5434
Affiliations: Professor of Law, Makerere University School of Law, and Advocate of the Courts of Judicature of Uganda; Associate Professor of Law and Coordinator of the Public Interest Law Clinic (PILAC), Makerere University School of Law, and Advocate of the Courts of Judicature of Uganda
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 1 – 22

Abstract

In the heat of the 2016 presidential election petition challenging the re-election of Yoweri Kaguta Museveni in Uganda, two amicus curiae applications were filed in the Supreme Court – one from a group of civil society activists, while the other was instituted by nine Makerere University law professors. This article provides a review and analysis of the Supreme Court decisions on the two applications against the backdrop of a largely conservative approach to the admission of amicus curiae briefs in Ugandan courts. It argues that the decision in the Makerere professors’ case set a progressive precedent for the admission of such applications, and clarified several issues, including the questions of bias, the expertise of the intended ‘friends’, and the place of the public in such an application.