The identity of the constitutional subject and the construction of constitutional identity: lessons from Africa

Abstract

In this article, I introduce a degree of novelty into the scholarship on the nexus between constitutional identity and the constitutional subject. I do so by pluralizing both the territorial space constitutional identity exists and the constitutional subject it interacts. Drawing from the African Union continental constitutional framework, the Ethiopian national constitutional experience, and the Nigerian subnational constitutional practice, I show how the three-tiered political identity of the constitutional subject – Pan-African, national, and subnational- shapes the construction of constitutional identity at various levels differently. While the Pan-African identity of the constitutional subject assists in imagining a cosmopolitan constitutional identity at the continental level, the sub-national identity of this same constitutional subject supports the establishment of a unique constitutional identity at the national (Ethiopia) and subnational (Nigeria) levels. I demonstrate how the identity of the constitutional subject and its accompanying social and political movements offer a relevant material for the construction of constitutional identity, and how this, in turn, may shape, facilitate, or complicate the practice of constitutionalism in the African context.