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Joseph M. Isanga, African Judicial Review, The Use of Comparative African Jurisprudence and the Judicialization of Politics, 49 George Washington International Law Review 749 - 800 (2017) (338 Footnotes) (Full Article)


joseph isangaMarbury v. Madison's legacy is enjoying a quiet resurgence in sub-Saharan Africa. Since the early 1990s, several sub-Saharan African states have experienced a return to open and competitive politics.

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.

As elsewhere in the postauthoritarian world, constitutional reforms have underwritten the tentative democratic gains made in contemporary Africa. 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 the constitution, including, notably, new bills of rights.

Courts are presumed to be above politics and, as such, they can play a huge role in shaping policy and legal developments in ways that optimize legitimacy. This presumption has much to do with the very nature of law in that it tends to be instrumental from a *750 normative perspective. Constitutional courts, in particular, are meant to function as instruments of political legitimacy and stability, and thus can have a significant impact on policy and legal development.

This Article examines African constitutional courts' jurisprudence--that is, jurisprudence of courts that exercise judicial review--and demonstrates the increasing role of sub-Saharan Africa's constitutional courts in the development of policy, a phenomenon commonly referred to as "judicialization of politics" or a country's "judicialization project." This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless.

The use of judicial review in Africa has been painfully slow, uneven, protracted, and has frustrated many policymakers in Africa and across the world. Despite many years of experimentation with judicial review across Africa, the norm in many countries remains "constitutions without constitutionalism," where the lack of judicial review has allowed new forms of authoritarianism to arise as regimes seek to extend their stay by abolishing constitutional term limits.

"The 1990s ... marked a critical high point for constitutionalism, the rule of law, and democracy in Africa ... a new dawn and the end of an era" of corruption, authoritarianism, dictatorships, and autocracy. Most African constitutions contain provisions that recognize and protect most fundamental human rights and courts have, albeit with some setbacks, tried to guard those constitutional values through judicial review of impugned legislation. In far too many countries, however, judicial review has had a mixed record. Some constitutional courts in the region have been more successful than others. Today, constitutions are a frequent site for *752 social, political, and economic struggle. State functionaries evoke their constitutions to justify the most undemocratic and coercive measures, even as opposition members seek recourse through the very same instruments to advance the cause of enhanced participation, expression, and access.

African politicians tend to selectively abide by judicial decisions and constitutional provisions. One commentator explained this phenomenon as follows: [I]n any African country at any given time more than one constitution may be in place. The written or textual constitution is also the aspirational constitution. Opposition leaders or elements and the citizens may clamour for the primacy of such constitution. The political incumbency often claims to follow such a constitution--sometimes even to the letter--but that is usually in rhetoric, or at best the leadership selectively abides by certain parts of the written constitution. Where it is obvious that the leadership feels frustrated by certain sections of the constitution and there is pressure or expectation for these to be followed, then amendments are engineered.

In light of the above, one must ask what, if anything, can be done to allow judicial review and constitutionalism to more effectively impact the political process in Africa. This Article argues that to be more effective and legitimate, African judicial review must be more African. More African judicial review would better challenge and appeal to political elites. To have a more effective judicialization process in Africa, this Article proposes that courts of judicial review should more frequently engage in comparative trans-African *753 jurisprudential judicial review, which would require African courts of judicial review to give priority to decisions that have been rendered by African courts on similar issues.

This Article does not advocate total abandonment of the practice of borrowing from non-African jurisprudence, but for more use of and focus on trans-African jurisprudence. Successful judicial review is not necessarily guaranteed by this approach. However, the case-by-case successes of those countries that engage in trans-African jurisprudence would encourage other countries to engage in comparative judicial review and suggest a starting point from which to do so.

This Article is divided into the following parts. Part I presents the arguments for prioritizing African, as opposed to non-African, jurisprudence for judicial review.

Part II provides a survey of African judicial review's general evolution, its major themes and characteristics, and its main objectives to date. The survey focuses on a number of African countries that have conducted judicial review and the extent to which they have been successful in promoting democratic values, respect for human rights, and the rule of law. Part II also provides examples of areas where African judicial review courts could presently engage in (more) comparative trans-African judicial review.

The Article finally provides recommendations and concludes. . . .

Finally, this Article presents a challenge to African judicial review courts: boldly embrace each other's jurisprudence to present more legitimate and effective judicial review to ruling political elites who have hitherto used foreign jurisprudence as a pretext to resist the impact of judicial review on policy and the rule of law.

Associate Professor of Law, Concordia University School of Law. J.S.D. 2006, University of Notre Dame; LL.M. 2004, University of Notre Dame; LL.B. 2003, Makerere University. I thank my research assistant, Regina Bright, for her invaluable assistance. #$