This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless.
The use of judicial review in Africa has been painfully slow, uneven, protracted, and has frustrated many policymakers in Africa and across the world. Despite many years of experimentation with judicial review across Africa, the norm in many countries remains 'constitutions without constitutionalism,' where the lack of judicial review has allowed new forms of authoritarianism to arise as regimes seek to extend their stay by abolishing constitutional term limits….
In light of the above, one must ask what, if anything, can be done to allow judicial review and constitutionalism to more effectively impact the political process in Africa. This Article argues that to be more effective and legitimate, African judicial review must be more African. More African judicial review would better challenge and appeal to political elites. To have a more effective judicialization process in Africa, this Article proposes that courts of judicial review should more frequently engage in comparative trans-African jurisprudential judicial review, which would require African courts of judicial review to give priority to decisions that have been rendered by African courts on similar issues.
This Article does not advocate total abandonment of the practice of borrowing from non-African jurisprudence, but for more use of and focus on trans-African jurisprudence. Successful judicial review is not necessarily guaranteed by this approach. However, the case-by-case successes of those countries that engage in transAfrican jurisprudence would encourage other countries to engage in comparative judicial review and suggest a starting point from which to do so.
This Article is divided into the following parts. Part I presents the arguments for prioritizing African, as opposed to non-African, jurisprudence for judicial review. Part II provides a survey of African judicial review’s general evolution, its major themes and characteristics, and its main objectives to date. The survey focuses on a number of African countries that have conducted judicial review and the extent to which they have been successful in promoting democratic values, respect for human rights, and the rule of law. Part II also provides examples of areas where African judicial review courts could presently engage in (more) comparative transAfrican judicial review. The Article finally provides recommendations and concludes. [excerpt]