Constitutional Courts: Approaches, Sequencing, And Political Support

Abstract

This rapid review looks at various constitutional courts established in transitional, fragile and conflict-affected contexts—the approaches adopted, sequencing in their establishment, and experiences with political support. There are few comprehensive accounts in the literature, however, of constitutional courts and their role in judicial review in the contexts of transition and/or as key actors in ‘building democracy’ (Daly, 2017a; Sapiano, 2017). Further, scholars have tended to focus on a relatively small number of case studies from the immediate post-Cold War era, such as South Africa and Colombia (Daly, 2017a). Discussion on the sequencing and steps adopted in establishing a constitutional court in fragile and conflict-affected states (FCAS), or on incentives that have swayed political elites to support these courts, is even more limited. Nonetheless, drawing on various academic and NGO literature, including on countries that transitioned from authoritarianism, this report offers some discussion on sequencing in relation to the constitution-making process and the establishment of the courts; and general reasoning for why constitutional courts may be supported by political actors.