Constitutionalism and democratic transitions

Abstract

This intellectual project owes a great debt to all the people in South Africa that have agreed to spend their time with us, being interviewed, explaining their points of view, sharing with us their thoughts, their hopes and their fears for the future. Without their crucial contribution our intellectual hypothesis would have remained nothing but theoretical speculations. In particular, we want to thank again the School of Social Sciences of the University of the Witwatersrand for having welcomed once again Dr Veronica Federico, and having provided her with the logistic support she needed in order to carry out her field work researches. There, Veronica has benefited a lot from the interaction with colleagues and students, as well as from the active participation in the School's activities. As we will mention in the Introduction, the research project underlying the study presented here is co-financed by the United States Institute of Peace (USIP) and the University of Florence. The opinions, findings and conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the USIP. Our gratitude goes first to Dr Judy Barsalou, USIP program officer responsible for the project, who has followed the research since its very beginning. Our thanks are also due to the Department of Public Law of the University of Florence for having hosted the project and supported it with its efficient administrative staff. In particular, we thank Fabrizio Parissi for his precious contribution in the final paging of the volume.

Appointment of constitutional adjudicators in Africa: some perspectives on how different systems yield similar outcomes

“…Two important core elements of modern constitutionalism (Akiba 2004;Federico and Fusaro 2006;Fombad 2007aFombad , 2008aHatchard, Ndulo, and Slinn 2004;Oloka-Onyango 2001), the requirements of an independent judiciary and the separation of powers, come into play here. In both constitutional theory and practice, it is recognised that both elements are ideals to be aspired due to the impossibility of completely eliminating some political role for the other two branches as a form of the checks and balances that are necessary to make a separate and independent judiciary effective and efficient.…”

“…The strides made by African states to adopt constitutions that promote constitutionalism, the rule of law and respect for human rights in the last two decades have been widely *Email: charles.fombad@up.ac.za 1 Part of the research for writing this paper was carried out during my period as a fellow in the South African Institute for Advanced Study (STIAS), Stellenbosch, in September 2013. commented upon (Akiba 2004;Federico and Fusaro 2006;Fombad 2007aFombad , 2008aHatchard, Ndulo, and Slinn 2004;Oloka-Onyango 2001). These developments have seen the introduction of relatively independent judiciaries with expanded powers especially in dealing with disputes involving the interpretation and application of the constitution.…”

“…However, the efforts to entrench certain core elements of constitutionalism, such as the principles of constitutional supremacy, judicial independence and separation of powers, have sometimes led to tension in many countries between the judiciary and the executive (Akiba 2004;Federico and Fusaro 2006;Fombad 2007aFombad , 2008aHatchard, Ndulo, and Slinn 2004;Oloka-Onyango 2001). No African country illustrates this conflict more than South Africa.…”