Global constitutionalism and cultural diversity: The emergence of jurisgenerative constitutionalism in Africa

Abstract

This article examines the path of global constitutionalism and its encounter with cultural diversity in Africa. It situates the phenomenon of global constitutionalism in the late nineteenth century and traces some of its tectonic transformations since the inauguration of the liberal international order. Besides referring to the processes of and calls for the constitutionalization of the international legal regime and the emergence of global constitutional law, global constitutionalism played a constitutive role for constitutionalism in Africa. As constitutionalism in Africa is configured within a biosphere of global constitutionalism and cultural diversity, their dynamic interplay leads to the emergence of jurisgenerative constitutionalism, which is procedurally and normatively open to accommodate a plural conception of rights, justice and values. As a result, what is constitutionally permissible and what is not cannot simply be determined by an attachment to either global constitutionalism or cultural diversity. Rather, it is the interaction of global constitutionalism and cultural diversity in time and place that dictates what the constitutional practice or outcome should look like. By taking the women’s rights jurisprudence related to customary and Islamic laws and the phenomenon of Shariacracy as themes of analysis, and Nigeria as a case study, this article explores how the emergence of jurisgenerative constitutionalism mediates global constitutionalism and cultural diversity in Africa. By bringing in the African experience, the article sheds some light on the range of theoretical and practical possibilities available to the emerging field of global constitutionalism.