Federalism

2021 ◽  
pp. 111-150
Author(s):  
Berihun Adugna Gebeye

This chapter demonstrates—using Nigeria, Ethiopia, and South Africa as comparative case studies—how federalism in Africa shares the forms, structures, and discursive practices of classic federal theory, while, at the same time, it also differs from classic federal theory in its normative articulations and institutional frameworks due to its syncretic configurations. To identify and illuminate the syncretic features of federalism in these countries, the chapter first presents the original logic, formation, and fundamental elements of federalism, as well as the reasons for its successes and failures, as developed in classic federal theory; explores how federalism takes new pathways—in both its original purpose and formation—in Nigeria, Ethiopia, and South Africa; and examines how the fundamental elements of federalism in these countries are a blend of syncretic convergences, adaptations, and innovations. And building on this, the chapter argues why it is necessary to rethink the classic standards for assessing the successes and failures of federalism and proceeds to discuss how this can help to improve the performance of federalism in fostering constitutional democracy in these countries. The chapter concludes by suggesting that if federalism is to ensure the practice of constitutional democracy in Africa, then democratic values, human rights, and constitutionalism should all animate its normative and institutional underpinnings of self-rule and shared rule, as they do in classic federal theory.

2020 ◽  
Vol 53 (2) ◽  
pp. 95-115
Author(s):  
Berihun Adugna Gebeye

This article examines the African experiment with federalism in light of classic federal theory with the objective of identifying and illuminating patterns of convergence and divergence and the consequences thereof. Classic federal theory offers explanations for the origin, formation, structures, and success and failure of federalism. This article, drawing from the experience of Nigeria, Ethiopia, and South Africa, reveals that while federalism in Africa shares the forms, structures, and discursive practices of classic federal theory, its normative articulations and institutional frameworks are animated by syncretic configurations. As a result, federalism transforms its purpose, fundamental elements, and operations in Africa. As federalism follows new pathways in Africa, this article shows how its system of operation and standards of assessment take a similar course. Against the central ethos of classic federal theory, federalism in Africa manages to operate and, to the extent possible, deliver its purpose mainly without liberal constitutionalism. This article argues that if federalism has to ensure the practice of constitutional democracy in Africa then democratic values, human rights, and constitutional considerations should animate its normative and institutional underpinnings as in classic federal theory.


2021 ◽  
pp. 151-175
Author(s):  
Berihun Adugna Gebeye

This chapter focuses on the executive branch in order to explain how legal syncretism influences African constitutional design and practice, using Nigeria, Ethiopia, and South Africa as comparative case studies. The chapter first develops a conceptual framework for the design of the executive and the practice of executive power drawing from liberal constitutional theory. The chapter then explores and examines the design of the executive and the practice of executive power in Nigeria, Ethiopia, and South Africa. The aim is to demonstrate how legal syncretism shapes the executive branches in these countries and how different configurations of legal syncretism have produced imperial executives in Nigeria and Ethiopia, but not in South Africa. By disentangling the discursive practices that bring about and sustain the imperial executives, and by showing the pathologies of constitutional design and practice related to the executive, the chapter defends the idea of a limited executive if constitutionalism is to prosper in Africa.


2021 ◽  
Vol 56 (1) ◽  
pp. 120-134
Author(s):  
Melanie Judge

With a focus on contemporary South Africa, and through the lens of queer identity and politics, the article critiques the limitations and possibilities for queerness and its futures in post-apartheid South Africa. From the advent of constitutional democracy and its ushering in of human rights, the article analyses developments in the politics of sexuality in the context of enduring systems of violence, rooted in colonial and apartheid histories. Discrimination against lesbian, gay, bisexual, transgender and intersex people – at the intersection with other forms of discrimination – has emerged as a focal point for political resistances in the post-apartheid period. These resistances are interrogated, including the paradoxes of rights struggles that they expose, and the contradictions between formal equality gains and present queer realities that they call attention to. With an emphasis on enduring inequalities within post-apartheid society, and on the racialisation of violence against queerness, the article explores various political formations of and for queer freedom. In navigating these dynamics of inequality and difference, the article urges a radical politics – both for relating as equals, and against the violent ends of othering.


2017 ◽  
Vol 60 (3) ◽  
pp. 105-125 ◽  
Author(s):  
Sara Berry

Abstract:This article reviews major changes in policies and practices of land allocation and use in sub-Saharan Africa since ca 1990, using two comparative case studies to illustrate their implications for relations between local and national authority. One case contrasts Ghana, where intense local conflicts over land and authority did not translate into political conflict at the national level, with Côte d’Ivoire, where they did. The other compares political strategies and the influence of traditional chiefs in Ghana and South Africa.


2017 ◽  
Vol 25 (1) ◽  
pp. 91-113
Author(s):  
Nana Tawiah Okyir

This article argues for the strengthening and entrenchment of socio-economic rights provisions in Ghana's jurisprudence. The purpose of this entrenchment is to engender judicial activism in promoting more creative pathways for enforcing socio-economic rights in Ghana. The article traces the development of socio-economic rights in Ghana's jurisprudence, especially the influence of the requirements of the international rights movement, particularly of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The article delves into the constitutional history of Ghana and its impact on the evolution of rights in the country. Of particular historical emphasis is the emergence of socio-economic rights under the Directive Principles of State Policy in the 1979 Constitution. However, the significance of the socio-economic rights only became profound with the return to democratic rule under the 1992 Constitution, again under a distinct chapter on Directive Principles of State Policy. However, unlike its counterpart, the chapter on the Fundamental Human Rights and Freedoms, which is directly enforceable, the Directive Principles of State Policy were not. It took the Supreme Court of Ghana a series of landmark decisions until finally, in 2008, it arrived at a presumption of justiciability in respect of all of the provisions in the 1992 Constitution. It is evident that prior to this, the Supreme Court was not willing to apply the same standards of adjudication and enforcement as it ordinarily applies in respect of rights under the chapter on Fundamental Human Rights and Freedoms. Having surmounted the non-justiciability hurdle, what is left is for the courts to begin to vigorously pursue an agenda that puts socio-economic rights at the centre of Ghana's rights adjudication framework. The article draws on comparative experiences from India and South Africa to showcase the extent of judicial creativity in rights adjudication. In India, the courts have been able to work around provisions restricting the enforcement of Directive Principles by often connecting them to Fundamental Freedoms. In South Africa, there is no hierarchy between civil and political rights on the one hand and socio-economic rights on the other; for that reason, the courts give equal ventilation to both sets of rights. The article further analyses these examples in the light of ongoing constitutional reforms in Ghana. It argues that these reforms fall short of the activism required to propel socio-economic rights adjudication to the forefront in Ghana's jurisprudence. In this regard, the article proposes social movements as a viable tool for socio-economic rights advocacy by recounting its success in previous controversial issues in Ghana. The article also connects this to other important building blocks like building socio-economic rights into a national development blueprint. Overall, the article calls for an imaginative socio-economic rights enforcement approach that is predicated on legislation, judicial activism, social movements and a national development blueprint aimed at delivering a qualitative life for the Ghanaian.


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