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- Convenors:
-
Charlotte Heyl
(GIGA - German Institute of Global and Area Studies)
Peter Brett (Queen Mary University of London)
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Short Abstract:
Recent years have seen strikingly assertive decisions by Africa's highest courts in the most politically sensitive cases (Kenya 2017, Gabon 2018). But judicial deference remains commonplace. This panel invites papers evaluating all contributions by African courts to democracy and/or autocracy.
Long Abstract:
Courts have the potential to provide checks and balances to the political branches of government and hence to strengthen democracy. All over Africa, courts repeatedly render assertive decisions in cases of high political salience such as the cancellation of the Kenyan presidential elections in 2017 or the dissolution of the Gabonese parliament in 2018. However, African courts also frequently judge in favour of powerholders, for instance when the Burundian Constitutional Court approved Nkurunziza's candidacy for a third presidential term despite a constitutional two-term limit. In such cases courts serve as instruments of authoritarian rule.
This panel invites conceptual and empirical contributions that examine the role of courts in political conflicts and their repercussions on democracy or autocracy. We encourage submissions that deal with some of the following topics on the basis of case studies or from a comparative perspective:
(1) the performance of courts in politically salient cases with the potential to disrupt the political order such as electoral disputes, term limit controversies or amnesty legislation,
(2) attempts of political actors to influence courts through informal networks, undue interferences or judicial appointments,
(3) the strategies of courts to connect with constituencies in the legal, political and public realm and to build-up support bases.
Accepted papers:
Session 1 Friday 14 June, 2019, -Markus Boeckenfoerde (Central European Foundation)
Paper short abstract:
The paper examines the creative approach of Benin's Constitutional Court to justify its judicial activism in taming the executive.
Paper long abstract:
The Constitutional Court in Benin is unique in several ways. Right from the beginning the Court's design was not limited to the French model of constitutional jurisdiction that informed so many other Francophone West-African countries in their reform processes in the early 1990ies.But in addition to the institutional design and beyond its role in observing the respect of fundamental human rights in Benin, the CC has been a stronghold in taming the executive's attempts in expanding its powers. By doing so it applied concepts and doctrines rather uncommon to the inherent logic of the civil law methodology.
This paper analyses decisions of the CC that framed and shaped the constitutional discourse of the subliminal 3rd term debate around former President Boni Yayi. In the 2011 decision the court introduced the idea of the "basic structure doctrine". The doctrine was developed by the Indian Supreme Court in an attempt to limit the scope of constitutional amendments. From the logic of a civil law country that is familiar with immutable clauses as a constitutional design option, the import of this doctrine bears some incoherence. Some might even consider it as a Judicial Coup d'Etat, in which the CC transformed from the Constitution's guardian to the constituent power. In the second decision, this self-conception of the Court was cemented by defining the conditions under which a new constitution might be enacted. The paper concludes by assessing the fine line between the CC's role as preserver of the constitutional integrity and Juristocracy.
Laura Enonchong (De Montfort University )
Paper short abstract:
This paper aims to explore issues of independence of constitutional institutions that adopt the Kelsenian model and their performance in developing democracies. It will use the Cameroonian Constitutional Council as a case study to evaluate the influence on democratic development and or survival.
Paper long abstract:
This paper explores the independence of constitutional institutions that adopt the Kelsenian model and their performance in developing democracies. It adopts the Cameroonian Constitutional Council as a case study to evaluate the influence on democratic development and or survival. Comparisons would be made with 'a common law style' Supreme Court to gauge the extent to which legal traditions may affect the performance of judicial or quasi-judicial institutions with jurisdiction in electoral matters. This analysis may inform proposals to strengthen judicial or quasi-judicial institutions that have the potential to influence democratic developments in developing democracies.
Cameroon's Constitutional Council held the promise of strengthening democracy, but it has demonstrated that it is ill equipped and unwilling to address deep seated problems within the political system. Whilst it is not uncommon for some constitutional courts in Africa to demonstrate unwavering loyalties to incumbent governments, the case of the Constitutional Council in Cameroon brings to light some of the controversies surrounding the Kelsenian model of constitutional courts and their development in weak democracies. Under this model, the survival of the institution depends largely on the executive who is responsible for the tenure of the members of that institution. Given that it exists outside of the judicial system, well established tenets safeguarding judicial independence are peripheral. While this model may be regarded as 'one of the most successful improvements on traditional concepts of democracy in Western Europe', their existence in some African states may serve to entrench autocracy.
Charlotte Heyl (GIGA - German Institute of Global and Area Studies)
Paper short abstract:
The paper analyses whether the Madagascan and Senegalese constitutional courts enhanced or impeded electoral competition in presidential elections and how the courts' interventions interplayed with other political and procedural factors shaping the level of competition such as opposition strength.
Paper long abstract:
Scholars of electoral integrity assume that independent electoral adjudication can enhance electoral integrity and consequently democracy. Constitutional courts in francophone Africa hold important powers in the electoral process but are rarely perceived as impartial referees in this endeavour. Yet, we have little systematic knowledge on how these courts intervene in elections and what kind of influence they render on democracy. This paper examines the interventions of the Madagascan and the Senegalese constitutional courts in presidential elections in the period between 1992 and 2012. It investigates how the courts influenced the level of electoral competition in these elections. The results show that both - the potential influence of the courts' decisions on electoral competition as well as the degree to which the courts' decisions mattered for the de facto level of competition - varied across elections. I argue that the influence of a constitutional court on electoral competition depends on the relevance of their interventions as well as on their interplay with other political and procedural factors shaping competition such as opposition strength, civil society activism or the impartiality of electoral management bodies. The paper draws from an original dataset of 106 election related constitutional court decisions coded by the author, secondary literature and interview data.
Peter Brett (Queen Mary University of London)
Paper short abstract:
In 2014, famously, President Compaoré of Burkina Faso failed to modify the constitution and was deposed. Less well known is a 2015 ECOWAS Court ruling invalidating the insurrectionary government's new electoral code. This, however, created acute legitimation problems for the country's new judges.
Paper long abstract:
In 2014, famously, President Compaoré of Burkina Faso failed to modify the constitution and was deposed. Less well known is a 2015 ECOWAS Court ruling invalidating the insurrectionary government's new electoral code. This, however, created acute legitimation problems for the country's new judges.