Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa

Abstract:     
With the global spread of judicial review has come increased scholarly interest in comparative dimensions of the "countermajoritarian difficulty" and, thus, in the activities of courts in new democracies. This Article broadens the growing discourse in this area to incorporate the African experience, which has received virtually no airing thus far.

Explaining the early "fall" of judicial review in postcolonial Africa as resulting from a severe deficit of legitimacy for the courts in the heady days after decolonization, the Article notes the recent rise to prominence of Africa's courts, as democracy has gained a foothold in several states long ruled by autocrats. Contemporaneous constitutional reforms accompanying recent democratic transitions have given African courts express and extensive constitutional review authority. However, because of Africa's postcolonial history of "constitutions without constitutionalism," the current constitutionalism revival has met with skepticism.

The Article argues that while current trends in Africa represent a significant new opportunity to build constitutionalism in Africa, the model of constitutionalism that Africa's lawyer-dominated constitutional reformers appear to have settled on - "juridical constitutionalism" - is a "quick fix" that ignores, or fails to redress, persistent defects in the structure and distribution of power in the postcolonial African state. Efforts at building constitutionalism in Africa through reliance on courts also places undue faith in judicial review and fails to reckon longstanding limitations that confront constitutional litigation and adjudication in Africa. The Article highlights, in particular, deficiencies in the jurisprudence, legitimacy, and independence of Africa's judiciaries, and counsels Africa's reformers to focus more attention on structural constitutionalism, using constitutional design to constrain executive hegemony and the centralized unitary state through the horizontal and vertical dispersion of governmental power.

Number of Pages in PDF File: 84

Keywords: Judicial review, democratization, Africa, judicial power

Accepted Paper Series