Accepted paper:

Wandering between cultures of constitutional review: Benin's CC and the Rule of (Amendment) Law


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.

panel Law05
Courts, politics and African democracy