Accepted paper:

Constitutional courts and democratic entrenchment in developing democracies

Author:

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.

panel Law05
Courts, politics and African democracy