Constitutional Identity and Constitutionalism in Africa

Abstract

Abstract In its modern history, Africa has experienced different waves of constitutional ordering. The latest wave, which began in the 1990s, has set the stage over the past decade for what is now a hotly debated issue: whether recent new or fundamentally revised constitutions truly reflect an African constitutional identity. Constitutional Identity and Constitutionalism in Africa brings a number of important research questions to the fore—historically, contemporarily, and prospectively. Firstly, it raises the question of whether the concept of constitutional identity provides a useful optic with which to look at and appreciate African constitutions. The second question concerns the role of path dependency in forming constitutional identities. To what degree have colonial foundations shaped the constitutional identities that surfaced in independence and post-independence constitutional ordering? A third issue relates to the widening gap between most African constitutions—which in many cases incorporate fundamental principles of modern constitutionalism—and the actuality of practice. A fourth question is whether African traditional authorities and institutions are part of national constitutional identity-building or merely a sentimental cultural relic of the past with little relevance today? Closely related to these is the question of whether constitutionalism should form part of an African constitutional identity. The chapters in this volume take one on a journey through the realities of constitutional identity and constitutionalism in Africa. They provide a broad overview that not only covers countries influenced by the two dominant constitutional traditions on the continent, namely the common law and civil law traditions, but also take into account indigenous African legal systems.