The Future of African Constitutional Design and Practice

2021 ◽  
pp. 215-236
Author(s):  
Berihun Adugna Gebeye
Keyword(s):  
Constitutional Reform ◽  
Constitutional Theory ◽  
Constitutional Design ◽  
The Future ◽  
Constitutional Reforms ◽  
Design And Practice

Building on the theses and analyses of the previous chapters, this chapter attempts to bring the elements of legal syncretism to the attention of future African constitutional design and practice. With this objective, the chapter discusses why African constitutional design should take sovereignty seriously and underscores why sovereignty is—and must be—an important aspect of any African constitutional theory; presents some of the major limits or shortcomings of postcolonial constitutional reforms and draws attention to possible future constitutional reform areas; and highlights the potential of some aspects of African constitutional design and practice that can mediate and operationalize the practice and application of plural constitutional values—something that future constitutional design and practice should attempt to consolidate.

The Executive

2021 ◽  
pp. 151-175
Author(s):  
Berihun Adugna Gebeye
Keyword(s):  
South Africa ◽  
Conceptual Framework ◽  
Case Studies ◽  
Executive Branch ◽  
Executive Power ◽  
Constitutional Theory ◽  
Discursive Practices ◽  
Constitutional Design ◽  
Comparative Case Studies ◽  
Design And Practice

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.

Reforming the Constitution; Reforming the Postcolonial State? Indigenous Peoples and Constitutional Reforms in Taiwan

2019 ◽  
Vol 14 (2) ◽  
pp. 245-278
Author(s):  
Jeroen VAN BEKHOVEN
Keyword(s):  
Indigenous Peoples ◽  
Democratic Transition ◽  
Constitutional Reform ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
Internal Colonialism ◽  
Authoritarian State ◽  
Double Transition ◽  
Constitutional Reforms

AbstractWhen an authoritarian state starts democratic transition reforms, the constitution can facilitate such reforms. However, a little-studied role of the constitution during democratic transition is that it can back indigenous peoples’ demands. Constitutional reform during democratic transition enables indigenous peoples to challenge the state's ‘internal colonialism’. The democratic institutions and democratic rights established and guaranteed by the constitution open possibilities for indigenous peoples to push for constitutional reforms that promote ‘internal decolonization’. This means that indigenous peoples are empowered and that their interests are protected. For indigenous peoples, a ‘double transition’ can thus take place: from authoritarianism to democracy, and from internal colonialism to internal decolonization. A case study of the constitutional reforms in Taiwan confirms that the constitution can guarantee indigenous peoples’ participation in constitutional reform. But in Taiwan, this involvement has not led to meaningful incorporation of indigenous peoples in the constitution, and it has not fully promoted double transition. The case study highlights serious problems for indigenous peoples to realize strong constitutional reforms. This article provides a foundation for additional research on constitutional change and indigenous peoples. This is critical to advance constitutional theory and to ascertain whether and how constitutions can give indigenous peoples a voice.

Constituting Scotland

2016 ◽  
Author(s):  
W. Elliot Bulmer
Keyword(s):  
Constitutional Law ◽  
Constitutional Theory ◽  
Constitutional Design ◽  
Global Trends ◽  
National Movement ◽  
Comparative Constitutional Law ◽  
Constitutional Thought ◽  
Scottish Government ◽  
Historical Trajectory ◽  
Constitutional Tradition

The rise of the Scottish national movement has been accompanied by the emergence of distinct constitutional ideas, claims and arguments, which may affect constitutional design in any future independent Scotland. Drawing on the fields of constitutional theory, comparative constitutional law, and Scottish studies, this book examines the historical trajectory of the constitutional question in Scotland and analyses the influences and constraints on the constitutional imagination of the Scottish national movement, in terms of both the national and international contexts. It identifies an emerging Scottish nationalist constitutional tradition that is distinct from British constitutional orthodoxies but nevertheless corresponds to broad global trends in constitutional thought and design. Much of the book is devoted to the detailed exposition and comparative analysis of the draft constitution for an independent Scotland published by the SNP in 2002. The 2014 draft interim Constitution presented by the Scottish Government is also examined, and the two texts are contrasted to show the changing nature of the SNP’s constitutional policy: from liberal-procedural constitutionalism in pursuit of a more inclusive polity, to a more populist and majoritarian constitutionalism.

Constitutional reform calls mount across Latin America

2021 ◽  
Keyword(s):  
Latin America ◽  
Indigenous Communities ◽  
Constitutional Reform ◽  
Constitutional Change ◽  
Content Type ◽  
Constitutional Reforms ◽  
The Status

Significance The debate over constitutional reform will be enlivened by the upcoming election of a constituent convention in Chile on the same day as the Peruvian elections. Impacts Constitutional change may become a banner for the left elsewhere in Latin America. Future constitutional reforms may reconsider the status of indigenous communities in the Amazon. Workers’ rights, include labour stability, may be strengthened.

The Concept of the ‘Living Constitution’ in Russian Constitutional Theory and Practice

2021 ◽  
Vol 46 (3-4) ◽  
pp. 416-445
Author(s):  
Caroline von Gall
Keyword(s):  
Direct Effect ◽  
Paradigm Shift ◽  
Social Conditions ◽  
Theory And Practice ◽  
Constitutional Reform ◽  
Constitutional Theory ◽  
Constitutional Change ◽  
The Past ◽  
Margin Of Appreciation

Abstract In discussing the concept of the ‘living constitution’ in Russian constitutional theory and practice, this paper shows that the Russian concept of the living constitution differs from U.S. or European approaches to evolutive interpretation. The Russian concept has its roots in Soviet and pre-revolutionary Russian constitutional thinking. It reduces the normative power of the Constitution but allows an interpretation according to changing social conditions and gives the legislator a broad margin of appreciation. Whereas the 1993 Russian constitutional reform had been regarded as a paradigm shift with the intention to break with the past by declaring that the Constitution shall have supreme judicial force and direct effect, the paper also gives answers to the complexity of constitutional change and legal transplants and the role of constitutional theory and practice for the functioning of the current authoritarian regime in Russia.

scholarly journals The Constitutional Reform in Russia: Relevancy, Implementation, Prospects. Part 2. Amendments to the Constitution: Unsolved and New Issues and the Further Reformation Vector

2020 ◽  
Vol 12 ◽  
pp. 3-8
Author(s):  
Oleg Yu. Boldyrev ◽  
Keyword(s):  
Russian Federation ◽  
Constitutional Reform ◽  
Constitutional Reforms ◽  
The Russian Federation ◽  
The Law

The seriousness of the flaws in the 1993 Constitution of Russian Federation is a weighty argument in favor of its reform. However, it is important to answer the question whether the constitutional reform eliminated the main defects of the existing Constitution. The article shows that the Law on the amendment to the Constitution of the Russian Federation of March 14, 2020 No. 1-FKZ does not provide solutions to the most pressing problems, including those that justified its adoption, and, in addition, creates new problems and risks. Accordingly, the relevance of further constitutional reforms remains. A number of proposals have been formulated concerning their directions and forms.

scholarly journals Natural Resources and the Constitution: Some Recent Developments and their Implications for the Future Regulation of the Resource Industries

1980 ◽  
Vol 18 (1) ◽  
pp. 1 ◽  
Author(s):  
Rowland J. Harrison
Keyword(s):  
Natural Resources ◽  
Petroleum Industry ◽  
Constitutional Reform ◽  
Reform Movement ◽  
The Future ◽  
Recent Developments

This paper reviews recent developments with respect to constitutional jurisdiction over natural resources. Particular reference is made to discussions between the federal and pro vincial governments directed towards reallocation of authority. It also examines poten tial implications of the constitutional reform movement for the future regulation of the petroleum industry.

Expanding WTO membership and heterogeneous interests

2005 ◽  
Vol 4 (3) ◽  
pp. 401-408 ◽  
Author(s):  
BERNARD HOEKMAN
Keyword(s):  
Institutional Design ◽  
Director General ◽  
Economic Welfare ◽  
The Future ◽  
Design And Practice ◽  
Institutional Challenges ◽  
Development Prospects ◽  
New Millennium

In late 2004, the Consultative Board to the WTO Director General issued its report, ‘The Future of the WTO: Addressing the Institutional Challenges in the New Millennium’. As noted by the Director General in the foreword, a rationale for the report was that ‘there had been too little serious thinking on whether the institutional design and practice that had served the GATT so well would do the same for the WTO’. One of the specific questions raised was ‘Could the WTO with an enlarged membership at various levels of development continue to deliver results?’ (p. 2). The following reflection on the Consultative Board's report is motivated by the latter question, where ‘results’ is defined as promoting not just global economic welfare, but the development prospects of poor members.

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