Constitutionalization? Whose constitutionalization? Africa's ambivalent engagement with the International Criminal Court

Abstract

While the concept of constitutionalism evokes the idea of taming politics through the force of law, the making of constitutions is in fact a contested social process in which different juris-generative actors vie for discursive hegemony. No wonder then that in a pluralist post-national setting, the project of global constitutionalism is continuously challenged by states from the periphery. Those states view constitutionalism as essentially a hegemonic project, which condenses Western notions of good governance, human rights, etc. into the nucleus of an emerging global constitutional order. This article addresses the consequences of this challenge for the constitutionalization of international law, focusing on the rule of law dimension of global constitutionalism, more specifically the relationship between the African Union (AU) and the International Criminal Court. I shall argue that a realist conceptualization of the agent–structure nexus, which views constitutional structures as mere epiphenomena of hegemonic power, is too narrow to account for the myriad ways in which agents from the periphery and global constitutional structures interact. Instead, I shall distinguish between five interaction scenarios, namely transformation, localization, cooptation/adaptation, obstruction, and withdrawal. My claim is that the AU’s refusal to be coopted by the system must be understood as part of a broader campaign aimed at reorganizing the relationship between the different public authorities involved in global (and regional) governance.