Transformative Constitutionalism and The Adjudication of Constitutional Rights in Africa
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Date
2017
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
African Human Rights Law Journal
Abstract
Transformative constitutionalism, popularised in the context of South Africa’s transition from apartheid to constitutional democracy, arguably offers an antidote for failed constitutionalism and weak protection of
fundamental rights and freedoms in emergent democracies in Africa. This article examines the idea of transformative constitutionalism and its implications for the adjudication of fundamental rights and freedoms. It
recognises that past failures of constitutionalism in Africa, to a significant degree entailed state abuses of fundamental rights and the corresponding inability of the courts to uphold these rights. Using examples of adjudication of rights in the post-2010 period in Kenya and postapartheid era in South Africa, the article argues that, taken as a model for constitutionalism in Africa, transformative constitutionalism offers hope for increased protection of fundamental rights and freedoms. The article analyses the demands of transformative constitutionalism on the judicial adjudication of rights, and concludes that the concept demands more from judges than has traditionally been understood in the two legal systems.
Description
Journal Article
Keywords
transformative constitutionalism, rights adjudication, South African Constitution, Kenyan Constitution, human rights
Citation
Kibet, E., & Fombad, C. (2017).Transformative constitutionalism and the adjudication of constitutional rights in Africa. African Human Rights Law Journal 340-366 http://dx.doi.org/10.17159/1996-2096/2017/v17n2a1