Constitutionalism in Africa

In Africa, no other constitutional provision has come under similar attack as the one that limits the terms of office of the President. Though incumbent Presidents have by and large formally respected such constitutional limitations, many have nonetheless successfully utilized various techniques to circumvent them. In turn, constitutional drafters have looked for design options to prevent term limit evasion more effectively. As a result, presidential term limit provisions are increasingly drafted to be immutable i.e. constitutionally immune to amendment. Relevant country studies illustrate the current rather ambivalent practical effect of this legal technique. While immutable clauses occasionally have only added another level of complexity to the creative strategies Presidents must play to circumvent term limits, they have also exposed remaining but remediable deficiencies in constitutional design efforts to tame rule by law-abiding incumbents.

The paper will have an Introduction section which will introduce The Human Rights (Enforcement) Act, 2019 (HREA) and when it came into force and its purpose. The main body of the paper will examine the State of Public Interest Litigation in Uganda, who can bring an action against violation of rights, individual liability responsibility for violations, reduction of laborious adversarial court processes, comprehensive court awards, precedence of human rights in all proceedings, government responsibility, unconditional release of detainees and provision of private prosecution. The conclusion will offer recommendations and some solutions.

Without implementation human rights risk being rendered illusory, thus the need to strategise for implementation via selected actors. The peculiarity of NHRIs lies in their placement at the intersection of government and civil society. Although established by the state, NHRIs are not state organs and ideally should be independent of influence. This paper examines the role of NHRIs in the implementation of African human rights decisions with reference to selected cases. First, a review of the typologies of African NHRIs and the theoretical basis for NHRIs' role in the facilitation of implementation. Then, a determination of the strategies that have been and can be adopted towards ensuring the implementation of decisions. The paper further interrogates the relationship between NHRIs and other domestic actors vis-a-vis the adjudicating bodies and how that impacts the implementation discourse. The research will mostly be desktop based and will employ comparative analysis.

South Africa‘s 1996 constitution has been hailed for its project of transformative constitutionalism: “large scale social change through nonviolent political processes grounded in law“. Such transformation is meant to shift the country‘s legal system from its dark past to a better future, via such concrete mechanisms as supremacy of the Bill of Rights (any law/conduct which unjustifiably limits fundamental rights is invalid), and “horizontality“ (the BoR binds both the State and non-state entities). Corporations have been at the heart of human rights violations in South Africa throughout the territory‘s history of colonialism and apartheid, but these abuses have continued into its (post)liberal democracy. This paper explores the transformative possibilities of the BoR here, and proposes a rationalisation of the various BoR mechanisms into a single systemic approach focused on fundamental rights foremost, with multicentric obligations then at once affecting the State, law and companies.