Chapter 4: Constitutional review in Africa

Overview & Synopsis

This chapter discusses the exogenous (colonial legacy) and endogenous (configuration of political elites were at the table during the drafting of new transformational constitutions) factors that have left imprints on the design of the constitutional adjudication/review system. The chapter notes that, while historical and colonial heritage provides a good explanation for the nature of constitutional review systems - with common law countries generally opting for decentralised review systems and civil law countries opting for centralised systems under a constitutional court/council, colonial legacy obscures important and evolving design diversities within each group. The chapter uses Benin, Kenya and Ethiopia as examples to illustrate not only the diversity in the design of constitutional review systems on the continent, but also exemplify the evolving effects of a given type of constitutional review design. The chapter also notes that, while courts always enjoy a level of authority in shaping the outcome of decisions, more diligent constitutional drafting could support them in optimally discharging their functions.