La décision 1/C/2024 du Conseil constitutionnel sénégalais : analyse furtive d’une décision attendue
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Professeurs Jean-Louis CORREA[1] et Abdou Khadre DIOP[2]
Comme souvent, cette fois un peu plus, la postérité nous édifiera, le Conseil constitutionnel du Sénégal vient de rendre une décision qui fera date. Saisi à la fois par des députés et des candidats à l’élection présidentielle, le juge constitutionnel, avec la décision 1/C/2024 du 15 février 2024, pose un jalon supplémentaire dans l’œuvre de construction de l’État de droit et de la démocratie au Sénégal.
Dans une écriture à quatre mains d’un privatiste et d’un publiciste, dans une volonté conjointe de décloisonnement de la science juridique, pour mieux visiter les confins des choses, nous vous proposons cette lecture furtive d’une décision attendue.
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Itojong Ayamba, Ph.D
Lecturer in the Department of Public Administration, University of Calabar, Nigeria
Africa, rich in culture, resources and potential, is plagued by political conflicts sometimes triggered by politics of winner-takes-all. This system seen in many African states, has long caused political unrest. Winner-takes-all (WTA) in this context refers to a system in which the winning party or candidate retains all political power, marginalising the opposition and minority groups. Winner-takes-all politics affects African communities in fundamental and complex ways, including governance, power distribution, and resource allocation and often fosters conflict.
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Abdou Khadre DIOP
On Saturday February 3, President Sall of Senegal, through a televised address to the Nation, announced he had repealed the decree convening the electoral body issued in November 2023. This decisive action signified the indefinite postponement of the presidential elections initially scheduled for February 25, 2024. This paper seeks to analyse the arguments put forward to justify such an action and to question its constitutionality as well as its impact on democracy in Senegal.
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Adem Abebe is a senior advisor on constitution-building processes at International IDEA. He supports transitions from conflict and authoritarianism to peace and democracy, generates cutting edge knowledge, convenes platforms for dialogue and advocates for change. Adem is also Vice President of the African Network of Constitutional Lawyers, which promotes democratic constitutionalism across the continent.
This episode was made in partnership with the Constitution Building Programme at International IDEA.
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Faith Pepela
Faith Pepela is a doctoral scholar at Koç University and a Young Professional Policy Analyst at Kenya Institute of Public Policy Research and Analysis (KIPPRA)
Democracy has been historically described as ‘the government by the people, for the people and of the people’. With the uprise of coups in western Africa and mass demonstrations in support of coups, the question begs; are coups a different way of exercising democracy or a threat to democracy and constitutionalism?
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By Augustine Aboh
Doctoral student at the University of Massachusetts Boston, U.S.A.
A wave of democratisation swept across Africa in the 1990s, offering what can be described as the golden age of constitutional rule, rule of law, and peaceful transition of power. The new phase was embraced with many expectations for the socio-economic and political transformation of the continent. That phase raised aspirations and signaled an autonomous pathway toward post-colonial development strategies. A wave that did not only bring about a government founded on democratic legitimacy but prioritised the fundamental liberties of all Africans; in fact, democracy was seen as a public virtue.
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Ruvimbo Hazel Shayamunda and Dr Johannes Bhanye
Africa has long been a continent of great promise and potential, with aspirations for democratic governance, constitutionalism, and the protection of human rights. However, these aspirations have been under threat in recent years, and the continent has witnessed a worrying surge in military coups and the rise of military regimes.
A military coup, short for “coup d'état,” is a sudden and often violent seizure of political power by the military or a faction within the military.
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Dr Simbarashe Tembo
Zimbabwean Constitutional Lawyer based at the University of KwaZulu-Natal, Durban, South Africa
On Wednesday 23 August, Zimbabweans will be flocking to various polling stations across the country to exercise their right to vote. This will be the second election without the late strongman Robert Mugabe who was deposed through a coup d’état led by the current leader Emmerson Mnangagwa. Zimbabwe’s democratic progression has been perennially hindered by disputed elections and this has led to general political and economic instability in the country over the years.
Zimbabweans have yet another chance to exercise their democratic right to vote in the upcoming harmonized elections. The main battle is on the presidential ballot pitting two candidates - the incumbent President Emmerson Mnangagwa of ZANU PF and Nelson Chamisa of the Citizens Coalition for Change (CCC).
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Paul Zibi
Lecturer in the University of Ebolowa, Cameroon
Senatorial elections held on 12 March 2023 introducing the third legislature of the Senate revealed the real nature of the Cameroonian political landscape. Between an elusive multiparty system and the indisputability of a dominant party, the structure of the Cameroonian political model seems to be heavily impacted. Indeed, there is a dichotomy between the democratic will for constitutional and legal recognition of elections and the political practice of elections that actually denotes a denial of both political pluralism and democratic alternation. Therefore, elections are no longer seen as a criterion of democratic legitimacy, but, rather as evidence of the decline of plural political expression. Besides sealing the predominance of the ruling party, the 2023 senatorial elections also unveiled the established supremacy of the President of the Republic particularly with respect to prospects for power alternation in the next presidential elections.
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Annelie de Man
Senior lecturer and coordinator of the advocacy division of the Free State Centre for Human Rights, University of the Free State
The African Union’s Agenda 2063: The Africa We Want is the continent's strategic framework to attain inclusive and sustainable economic growth and development. The Agenda is based on the Pan-African ideology, which calls for [a]n integrated, prosperous and peaceful Africa, driven by its own citizens, representing a dynamic force in the international arena.[1]
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Duncan M. Okubasu
Advocate, High Court of Kenya and Lecturer, Public Law, Moi University
The invigoration of judicial review in light of the 2010 Constitution has thrust the Kenyan judiciary at the centre stage of virtually all political intrigues- 2021 was not exceptional. It is thus problematic to faithfully document “developments” by separating constitutional from purely political ones because any political issue finds itself in court as a constitutional matter. The outcomes of these cases, are themselves indeed developments, and for sure legion decisions are handed down every year since 2010. While most of these ‘developments’ are often widely known- because all decisions of courts are published online through “KenyaLaw”, less is often said about the context in which they are made.
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Joseph Geng Akech
Assistant Professor of Law, University of Juba, and independent researcher in human rights & constitutional designs
Summary
This blog article provides a summary of the constitution building context and exposes complexities which must be overcome to produce an inclusive and legitimate constitution. It provides a brief history of constitution building to trace underlying unattended intricacies that are compounding the complexities surrounding constitutional design under the Revitalised Agreement on the Resolution of Conflict in South Sudan (R-ARCSS). It then suggests that three aspects – namely; the trust deficit, limited implementation of transitional justice and domineering role of the R-ARCSS’ authors – are key intricacies impacting constitutional legitimacy and the inclusivity of all South Sudanese peoples.
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Mugambi Laibuta
Introduction
It has been ten years since the promulgation of the Constitution of Kenya, 2010. A constitutional text that was hailed as being liberal, transformative and a cure for Kenya’s electoral violence cycles. The 2009/10 constitutional review process was conceptualised through the Kenya National Accord and Reconciliation process led by the African Union Panel of Eminent African Personalities chaired by the late and former UN Secretary General H.E. Kofi Annan with other members of the Panel being the late and former Tanzanian President H.E. Benjamin Mkapa and H.E. Graca Machel. When the 2007/08 election protagonists H.E. Mwai Kibaki and Rt Hon. Raila Odinga agreed to a truce, the reconciliation process identified long term issues and solutions that had to be addressed if Kenya was to move forward and avoid future mass conflicts.
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Willy Mutunga
Former Chief Justice of Kenya
Three decades after Kenyans took to the streets demanding political and constitutional reforms during the first Saba Saba day protest on July 7, 1990 (the leaders were detained and brutalized, but it is credited for ushering in multiparty democracy there), the conditions that prompted this dissent to remain. In this article, the former Chief Justice of Kenya, Willy Mutunga, arrested in an earlier crackdown by Moi’s regime and which led to his exile and then return Kenya after Saba Saba, reflects on this and tackles the following question: “Why after three major successful transitions over three decades—multipartyism, a power transition in 2002, and a new constitution in 2020—are we still being frustrated by our politics and economics?
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Dr Adem Abebe
Programme Officer, Constitution Building Programme, International IDEA
Dr Maurice Enguelegue
Africa and West Asia Regional Office, International IDEA
Introduction
The COVID-19 pandemic has overshadowed critical developments in Africa that would otherwise have occupied front pages. This piece covers the recent backslide in Guinea, following President Alpha Conde’s third term temptation, and charts a hopeful positive end to the crisis. Crucially, it notes that 2020 will witness a number of peaceful alternations of power that the African Union should promote.
In addition to Burundi and Malawi, which have already witnessed peaceful alternations of power in 2020, presidents in Cote d’Ivoire and Niger are expected to leave power due to term limits, and incumbents in several African countries must vie to retain their positions. The year 2020 (and early 2021) will arguably see the highest number of peaceful alternations of power on the continent, a milestone worth celebrating, while also pondering ways to ensure that the successes in democratic alternation of power translate into democratic delivery of public goods to Africa’s burgeoning masses.
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Eghosa E. Osaghae
Professor of Comparative Politics, Dept. of Political Science, University of Ibadan, Nigeria
The 2019 general elections amply demonstrated the perversities of elections in Nigeria, and showed once again that elections, especially presidential elections, and their outcomes entail much more than the franchise and democratic choices made by citizens to decide who governs them. By some accounts, elections in the country are stage-managed and outcomes are not determined by how people vote, but are rather manipulated, cooked up, even predetermined, suggesting that elections may be surreal and far from what they are supposed to be. This situation obviously led some observers to conclude long ago in exasperation that electoral outcomes in Nigeria defy (rational) explanations; the results have to be taken as declared. The increased roles of election tribunals and law courts in the determination of electoral outcomes sometimes on technical grounds represents another variety of the evolving scenarios of electoral outcomes not determined by votes (this phenomenon is rapidly spreading all over Africa, as presidential elections in Kenya, Ghana, Malawi, DR Congo, and Guinea Bissau have been subjects of litigation and judicial decisions). The pertinent question would be how and why elections can be so dissociative of the franchise, but this is only one of the theoretical puzzles elicited by elections and electoral politics in Nigeria, and the conundrum of ‘choiceless elections’ in which votes do not determine electoral outcomes. Another puzzle relates to how the conduct and outcomes of elections forcefully articulate the fragility of statehood and national cohesion with the character of elections (peaceful, violent or disruptive) fast emerging as an index of state fragility or failure.
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Joseph Geng Akech
South Sudanese lawyer, LLB (BU), LLM (UP), LLD candidate (UP)
Introduction
Beyond the troubles much of the world is facing, COVID-19 is an add-on to the ‘plagues’ wrecking the world’s youngest nation, the Republic of South Sudan as it arrived at a time when the young nation is at a crossroad – rebuilding its fractured society troubled by ‘armed conflict, chronic communal violence, political instability, typified by absence of rule of law and constitutionalism.’ Evidently, COVID-19 is not only a threat to the country’s crippling public health system, but to the fragile peace and weak governance system alike. The tenuous peace deal, the Revitalised Agreement on the Resolution of Conflict in South Sudan (R-ACRSS), was already in doubt as critical aspects are yet to be implemented. Furthermore, the institutions of peacebuilding and constitutionalism were already lacking, weak or struggling when COVID-19 arrived.
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Patricia Kameri-Mbote
Professor of Law, School of Law, University of Nairobi
Dan Allan Kipkoech
University of Nairobi
Introduction
COVID-19 was first identified in Wuhan, China in December 2019 and by March 11, 2020, the World Health Organization declared it a pandemic. WHO called on governments to act immediately to combat the spread of the virus citing concerns on the alarming levels of severity and spread. COVID-19 is an infectious disease caused by the novel coronavirus also known as the Severe Acute Respiratory Syndrome (SARS-COV-2). The COVID pandemic has put immense pressure on public health. The threat to human life justifies temporary restrictions on specific rights such as the freedom of movement. Isolation and quarantine limit this freedom. Concerns have also been raised about neglect of human rights principles and the risk of discrimination. This has arisen for instance, with respect to human dignity and transparency with respect to police functions and health practitioners execution of their functions during this period.
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Sibusiso Nhlabatsi
LLB, LLM Candidate (UNISA), Attorney of the Courts of Eswatini,Legal Clinic Principal at the University of Eswatini
Introduction
The Kingdom of Eswatini was almost wiped away by the HIV/AIDS pandemic. It was, therefore, important for the country to act swiftly to contain COVID-19 before it repeats the devastating experience of HIV-AIDS. In doing so, some fundamental human rights and freedoms were compromised in the process. This article seeks to interrogate and discuss Eswatini’s response to the COVID-19 and its effect to constitutionalism.
Once the first case of COVID-19 was reported on 14 March 2020, Eswatini introduced emergency measures to contain the spread of the virus, as per the powers granted under the Constitution in the event of emergency. Government responded quickly by temporarily limiting personal freedoms guaranteed by the Constitution, thus disrupting the constitutional dispensation. As of 16 May 2020 Eswatini, had a total of 190 COVID-19 cases with two deaths and 66 recoveries. The number of infections is worrying in view of the fact that Eswatini is a country with a population slightly over one million, with an HIV-prevalence rate of 27 per cent.
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Susan C Mutambasere
LLB (UZ), LLM (UP)
LLD Candidate
University of Pretoria
Introduction
The year 2020 has seen an unprecedented worldwide pandemic which has resulted in the disruption of lives across the globe in the form of the highly infectious virus Covid-19. To date, this virus has claimed the lives of just under 2000 people in Africa with the number rising on a daily basis. While Zimbabwe’s statistics remain relatively low, it has activated measures to curb the further spread of the virus. These measures are in the form of declaring the pandemic a national disaster in terms of the Civil Protection Act. It is important to note at this juncture that Zimbabwe did not declare a state of emergency in terms of the Constitution like several other African states. This contribution analyses the Constitutional implications of these measures, its impact on fundamental rights and freedoms as well as how it has affected the socio-economic lives of the citizens of Zimbabwe. It concludes with recommendations on how the situation could be handled in order to adhere to Zimbabwe’s legal and constitutional obligations as well as the protection of human rights.
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Bonolo R. Dinokopila
Associate Professor,
Department of Law,
University of Botswana.
Botswana, a country with a population slightly over two million, has recently joined countries that took stringent measures necessary to contain the spread of COVID-19. On the 31 March 2020 President Dr. Mokgweetsi E. K. Masisi declared a state of public emergency. This was the second time a state of public emergency was declared since Botswana attained independence in 1966. According to the Declaration of State of Public Emergency Order, “…it was necessary to declare a state of public emergency for the purpose of taking the necessary measured to address the risks posed by COVID-19”.
President Masisi was acting pursuant to section 17 of the Constitution of the Republic of Botswana (1966). The features of the said section are that:
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Angelo Dube,
Professor of Laws
Department of Public,
Constitutional and International Law,
College of Law, University of South Africa
Mr Nikitta Nkosi,
(LLB Candidate),
College of Law,
University of South Africa
Introduction
On 5 March 2020, the South African National Institute for Communicable Diseases, through the Minister of Health, Dr Zweli Mkhize, reported the first Covid-19 case in the Republic of South Africa. Since then, the country has confirmed upwards of 9000 positive cases with more than 3500 recovered patients. At the time of writing, the South African Covid-19 death toll stood at 186. Compared to some of the worst-hit nations, such as the United States of America which has recorded more than a million active cases and more than 75 000 deaths, it is safe to say that South Africa has done very well in its tackling of the virus so far. When announcing a 21-day nationwide lockdown on 15 March 2020, President Cyril Ramaphosa noted that the country was facing a grave emergency, but would be able to conquer if South Africans acted together and decisively. The initial 21-day lockdown was extended by two more weeks. Essentially the country went into a strict Lockdown for 35 days. At the time of writing this piece, South Africa remained in Lockdown, albeit in a slightly relaxed form. South Africa now adopts a system where government-imposed restrictions are classified into levels. The country currently sits on ‘Level 4’ of its Lockdown, where the severity of the situation decreases with decreasing level number from 5 to 1. There is no precise indication from the Government regarding when the Lockdown will likely end.
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Jean-François AKANDJI-KOMBÉ
Professeur à l’École de Droit de la Sorbonne, Université Paris 1 Panthéon-Sorbonne
Doyen honoraire de la Faculté de Droit de Caen (Normandie – France)
Pays enclavé de 623.000 km2 et d’environ 5 millions d’habitants, peu relié à l’extérieur du fait de la dégradation des infrastructures de communication physiques consécutive au conflit militaro-politique toujours actif, la République Centrafricaine (RCA), ou plus exactement la capitale Bangui où se concentre l’essentiel du dispositif de dépistage et de traitement, a été atteinte tardivement par le virus du COVID-19 et connait une évolution plutôt lente, comparée aux autres États d’Afrique centrale. En effet, le premier cas d’infection, importé, a été enregistré le 14 mars 2020 et, au 4 mai, on compte 94 cas, sans un seul décès à ce jour .
De par le monde, cette pandémie a agi et agit encore comme un révélateur de l’état des ordres juridiques, aussi bien quant à leur niveau de performance globale qu’en ce qui concerne la fiabilité, voire la viabilité de leurs dispositifs de protection des personnes et de leurs droits fondamentaux. La RCA n’échappe pas à la règle.
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Sam Alosa
LLB, LLM
Lecturer, School of Law, University of Nairobi
Introduction
Kenya reported its first case of COVID – 19 on Friday, March 13, 2019. Since then the number of cases has increased exponentially. Currently, Kenya has more than 600, with about 190 recovered and 29 dead. The Kenyan Government has put in place various measures in an attempt to halt or slow the relentless march of the virus. One of the steps taken is the imposition of a night curfew published as Legal Notice No. 36 - The Public Order (State Curfew) Order, 2020 under the Public Order Act, Cap. 56. Further measures include limiting access to the country, closure of schools, set up of forced quarantine facilities, and locking down entry and exit to certain counties among other measures aimed at curbing and containing the spread of Covid-19 in the Country. These measures, though well-intended the enforcement has been problematic as it raises both constitutional and legal concerns.
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Busingye Kabumba
LLM, LLD
Lecturer on Law, Makerere University
‘It was the best of times, it was the worst of times,
it was the age of wisdom, it was the age of foolishness,
it was the epoch of belief, it was the epoch of incredulity,
it was the season of light, it was the season of darkness,
it was the spring of hope, it was the winter of despair...’
Charles Dickens, A Tale of Two Cities (1859)
Introduction
The Coronavirus disease (Covid-19) has fundamentally challenged many aspects of international and national life that we had long taken for granted. As at current count, over one million people around the world have tested positive for Covid-19, with over sixty-five thousand deaths thus far. In Uganda, fifty-two people have so far tested positive, and the government has already taken extraordinary measures to try to ensure that this figure remains low.
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Ashwanee Budoo
LLB, LLM, LLD
Program Manager: LLM/MPhil Human Rights and Democratisation in Africa
Centre for Human Rights, University of Pretoria
Background
Mauritius is an Indian Ocean Island with a population of about 1.2 million. Similar to many countries around the world, this island has also come to a standstill due to the coronavirus (Covid 19) pandemic. On 23 April 2020, the country has recorded a total number of 331 infections, with 9 deaths and 53 cases still being active. The first case was recorded on 18 March 2020 and as the current figures demonstrate, the government has taken several measures to ensure that there is a minimal spread of the virus.
A previous blog article with the view of assessing the human rights dimensions of the Covid 19 measures in Mauritius elaborates on the steps taken by the government to combat the virus, the most pertinent of which is the Quarantine (Quarantinable Diseases) Regulations under the Quarantine Act, the Prevention and Mitigation of Infectious Disease (Coronavirus) Regulations and a Curfew Order under the same. The objectives of these Regulations/Order were to, amongst other things, close Mauritius’ borders, quarantine persons who have potentially contracted the virus and to trigger the country into lockdown to ensure that the virus does not spread any further.
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Luis Antonio Mondlane J
Justice at the Supreme Court
The Republic of Mozambique,
Head of Criminal Division, former President of SADC Tribunal
Introduction
The COVID-19 pandemic had spread throughout the globe. It is, indeed, a lethal weapon, a bomb that uses the target, the victim, as a carrier. On its account, over 200.000 people have died, more than three million have been infected and a countless number have affected in many ways.
The storming pandemic led states around the world to enforce constitutional provisions of exception, the state of emergency. Many African states have already resorted to such constitutional measures in order to curtail, prevent or lower the level of new infections. Africa’s developing countries, to be precise the least developed in the global economy, face a great deal of challenges in implementing the state of exception, namely to provide basic needs for people with lower income.
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Chofor Che Christian Aime,
LLM, Ph.D. Pretoria
Senior Civil Administrator in Cameroon
Introduction
The outbreak of the coronavirus (COVID-19) pandemic believed to have emanated from China has created worldwide turmoil as many continue dying, including in Africa. As Africa and Cameroon in particular increasingly become exposed and affected by the virus, policymakers must look into constitutional mechanisms to handle the ravaging effects of this pandemic.
The government of Cameroon has taken measures to stop the spread of the Covid-19 pandemic. Some, which are stringent, include the closing of the borders, private health facilities, schools and hotels. Human rights abuses orchestrated by national defense forces in a bid to manage the Covid-19 pandemic all point to a de facto declaration of a state of emergency in the country. With the spread of the Covid-19 pandemic in the country, concerns are raised on the importance of revisiting the emergency clause and giving more importance to human rights in the Constitution.
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Denis Bikesha
LLM, PhD
Dean. School of Law. University of Rwanda
Introduction
Prior to the first COVID-19 case in Rwanda, there were precautionary measures that had been announced by the Prime Minister on 6 March 2020. People had been advised to wash their hands regularly and congregants were instructed to be more careful; all the churches were required to make available sanitizers at the entrances. In the Catholic church, usually, there is a step of sharing peace in their Holy Mass but there was neither hag or shaking hands as a sign of sharing the peace of the Lord. Also, prior to entering the church, people were supposed to wash their hands. Apart from observing the precautionary measures that were in place as mentioned above, people continued to work as usual until new instructions appeared after the first COVID-19 case was confirmed on 14 March 2020 by the Ministry of Health, an Indian citizen who arrived from Mumbai, India on 8 March 2020. The patient had no symptoms upon arrival in Rwanda and reported himself to a health facility on 13 March 2020. Thereafter, he was immediately tested and started treatment in isolation from other patients and his contacts were traced.
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Felicity Kayumba Kalunga
LLB, LLM
Lecturer, Department of Law,
University of Zambia
Introduction
Zambia reported its first two COVID-19 positive cases on 18th March 2020. At the time of writing, the country had recorded a total 89 of positive cases, with three deaths and 42 recoveries. The pandemic has not spread across the country, with all the cases so far recorded coming from only three out of the country’s 10 provinces. The Zambian government has not declared COVID-19 an emergency pursuant to the constitutional provisions. It has instead proceeded by issuing two statutory instruments (SI), under the Public Health Act, which were published in the Government Gazette on 13th March 2020. This notwithstanding, government has implemented measures and presidential directives which have no backing of the law and are contrary to constitutional provisions on the protection of fundamental rights, as shown below.
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Mtendeweka Mhango
Dean and Professor, Faculty of Law, National University of Lesotho
Tekane Maqakachane
Senior Lecturer, Faculty of Law, National University of Lesotho
Introduction
The Covid-19 pandemic has affected every country on the globe, and Lesotho has not been spared. Despite no cases being reported in Lesotho at the time of this writing, the government of Lesotho has taken significant legal steps in response to the pandemic. Chief among these steps is the declaration of a state of emergency in terms of s 23 of the Constitution of Lesotho, 1993 by the Prime Minister on 27 March 2020 and again on 15 April 2020. This declaration was accompanied by a decision to impose major restrictions including on the freedom of movement, which is protected under s 7 of the Constitution.
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Onuora-Oguno Azubike C (LLD)
Senior Lecturer, Department of Jurisprudence and International Law
Faculty of Law, University of Ilorin, Nigeria
Recently, the world is battling a pandemic occasioned by the COVID-19 (Corona Virus). The Corona Virus, which is widely claimed to have emanated from the Chinese city of Wuhan, has caused serve hardship on the ordinary way of life of nations. Social, economic, political, academic and sporting activities have all been grounded. In response, several nations have called and enacted emergency measures to ameliorate the hardships. In a Federal State like Nigeria, both the Federal Government and the various states have enacted laws that they have relied on to restrict the movement of persons, curtail activities such as political, religious or social gathering and even economic activities. The constitutional validity of the several lockdowns is contentious. In Malawi, a court struck down the lockdown order and ordered the conduct of proper consultation and measurable plans to cater for the needs of the poor during the lockdown. In Kenya, the Bar Society is challenging the validity of such lockdown orders.
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Kwaku Agyeman-Budu
BA, LL.B, BL (Ghana); LL.M, SJD (Fordham);
Lecturer and Head of Law Centers, Faculty of Law,
Ghana Institute of Management & Public Administration (GIMPA).
Introduction
The year 2020 is supposed to be an election year in Ghana, with its attendant political campaigning activities. Instead, 2020 in Ghana, like almost all other parts of the world, has been characterized by the COVID-19 Pandemic, which has exposed the lack of preparedness for such global outbreaks of infectious diseases. In light of the emerging uncertainties surrounding this global pandemic, as declared by the World Health Organization (WHO), States have been either quick or slow in responding to this global threat. That notwithstanding, the common theme that is evident in the responses by States all over the world, is that states of emergency, or variants thereof have been declared across the globe, with travel restrictions and total to partial lockdowns implemented in various forms. Such actions, in as much as they may be necessary to swiftly respond to and deal with the current state of affairs, have the tendency of being abused by the Executive, especially if laid down principles are ignored, side-stepped or varied without legal justification and an oversight by the Legislature and/or the Judiciary.
Section 1 and the Problems of Constitutionalising Expropriation Without Compensation in South Africa
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If passed, the Eighteenth Amendment Bill will modify the right to property contained in section 25 of the Constitution of the Republic of South Africa, 1996, to allow government to expropriate property without necessarily being required to render compensation. It has been argued that the Constitution already implicitly allows for expropriation without compensation, and that the Eighteenth Amendment will simply “make explicit that which is already implicit”. It has also been said that land reform has proceeded too slowly, and that amending the Constitution would make it more effective.
Section 74(2) of the Constitution requires Parliament to obtain a two-thirds majority in the National Assembly and six provinces in the National Council of Provinces for a constitutional amendment to the Bill of Rights, wherein section 25 is located, to be approved. The ruling African National Congress (ANC) and the Economic Freedom Fighters (EFF) together control enough parliamentary seats to enable such an amendment.
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Dear Colleagues,
It is with deep humility that I write to thank you for your steadfast belief in and membership of the ANCL. Your Coordinating Committee continues to make progress in strengthening your Network. In this regard, my message appears as part of a recently revamped website. We are also at an advanced stage of preparations towards a constitutional review process that is important for elections into the Executive Committee at the beginning of the Biennial Conference in Nairobi in August 2020. Information about these processes will be available in due course.
I wish you a prosperous 2020 and look forward to meeting you in Nairobi in August 2020.
ES Nwauche (Prof)
Chair, ANCL Coordinating Committee (2017-2020)
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Chers Collègues,
C'est avec une profonde humilité que je vous écris pour vous remercier de votre soutien et de votre adhésion à l'RADC. Votre comité de coordination continue de progresser dans le renforcement de votre réseau. À cet égard, mon message apparaît dans le cadre d'un site Web récemment rénové. Nous sommes également à un stade avancé de préparation en vue d'un processus de révision constitutionnelle qui est important pour les élections au Comité exécutif au début de la Conférence biennale de Nairobi en Août 2020. Des informations sur ces processus seront disponibles en temps voulu.
Je vous souhaite une année 2020 prospère et je me réjouis de vous rencontrer à Nairobi en Août 2020.
ES Nwauche (Prof)
Président, Comité de coordination de l'RADC (2017-2020)
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Pierre Olivier LOBE
Director of Strategic Analysis at Association Internationale Afrique Survie (Institute AIAS). Legal consultant and lecturer of public law at the Facultés Universitaires Privées d’Abidjan (FUPA).
Efforts to enhance the legitimacy of the Ivorian Electoral Commission and comply with decisions of the African Court have informed reforms to its composition. Nevertheless, the reforms may not have effectively addressed concerns over independence and impartiality. In combination with controversy over Ouattara’s plans for a third presidential term, the contest over the Commission could precipitate a prolonged political and even security crisis – writes Pierre Olivier Lobe.
Introduction
On 30 September 2019, the Independent Electoral Commission elected its president among the fifteen newly appointed commissioners. The appointments were made in accordance with the revised law related to the composition of the Commission signed into law by President Alassane Ouattara on 5 August 2019.
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Babatunde Fagbayibo
Credit https://twailr.com/
The study of international law in Africa, particularly as it translates to pedagogy, remains stubbornly anchored to a Eurocentric worldview. Many universities across the continent still use textbooks and materials that place Eurocentric canons and notions at the heart of the theory and praxis of international law.1 Textbooks written by African scholars do not necessarily displace this paradigm. The result is an uncritical syllabus that distances learners from the stark realities of an international law speaking neither to their context nor proffering any meaningful solutions to their existential concerns. Such syllabi present international law as a neutral mechanism for addressing global issues, with little or no reference to how it continues to be manipulated by the West in achieving its narrow, hegemonic objectives.
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Credit to ConstitutionNet.org
The Zambian government is pursuing a constitutional reform process that has lacked inclusivity and popular engagement. The proposed constitutional reforms would, inter alia, alter state-religion relations and enhance the powers of the executive vis-a-vis the legislature, courts, independent institutions, and provinces. In combination, the reform initiative sets a dangerous precedent and could exacerbate, rather than solve, the ongoing political crisis – writes Professor Cephas Lumina.
On 12 June 2019, the Zambian Government tabled several amendments to the 2016 Constitution. The proposed reforms have raised significant concerns of constitutional regression. Critically, the government is pushing the reforms through a process that does not have the buy-in from the main opposition groups as well as critical non-state actors. The contrived ‘dialogue’ to push through reforms may ultimately undermine constitutionalism. Moreover, while the reform drive was meant to address the divisions and legal lacunae/uncertainties that emerged in the aftermath of the 2016 elections, the content of the draft amendments threatens to reverse the constitutional and democratic gains since Zambia’s return to multi-party democracy.
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Adem K Abebe
Dr Adem K Abebe is advisor and commentator on the African Union, and governance and democracy in Africa.
Credit to Aljazeera.com
When news broke of an alleged attempt to remove the security detail of Oromo activist and media mogul Jawar Mohammed, hundreds of his supporters flocked to his residence in Addis Ababa, the Ethiopian capital and capital of the Oromia region. Jawar, who was one of the organisers of the Oromo protests that started in 2015 whichultimately led to the change in government in 2018, was provided security by the federal police after returning from exile last year.
The incident came on the heels of Prime Minister Abiy Ahmed, who is also leader of the Oromo Democratic Party (ODP), accusing unnamed media owners with foreign passports of fomenting instability, a disguised attack on Jawar, who holds American citizenship and is therefore not legally Ethiopian (as Ethiopia does not allow dual nationality).
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Moussa Diop
Credit to ConstitutionNet.org
Introduction
President Macky Sall began his second presidential term with a call for political dialogue, which he launched on 28 May 2019. The purpose of this dialogue is to deal with the political crisis that followed his victory in the controversial elections of February 2019 and to build consensus on the main problems facing Senegal.
Political dialogue is an established Senegalese tradition. Senegal remains the main exception to ethnic, religious and constitutional and political discontinuities, particularly in the form of coups, common in many countries in sub-Saharan Africa. This is partly attributable to a most positive practice: dialogue. Senegalese politicians have always favored discussion to recourse to arms to resolve emerging and recurring political challenges, such as the first president Léopold Sédar Senghor, who described Senegal as a ‘country of dialogue’. The generation of the 1960s established dialogue as a national political culture and the post-1990 generation followed suit by regulating political and electoral tensions through the same method.