Transition and the Pitfalls of Nondemocratic Institutions: A review of Constitutionality in Ethiopia

Ethiopia has undertaken important political reforms after the fall of authoritarianism in 2018. This article examines the performance of Ethiopia’s constitutional review mechanism amid the ongoing political and institutional reforms in the country. The study focuses on the process and merit of the constitutional ruling to delay the 2020 national and regional elections because of the coronavirus pandemic, thereby extending the government’s tenure. It further unravels the challenges posed by nondemocratic institutions of the past regime in navigating the transition. In doing so, this study draws on legal, documentary and case analysis, and a literature review. While the mandate extension comes as no surprise, the reasoning of the decision to do so was disappointing for many, dashing the hope and sense of a constitutional moment that accompanied the highly publicised constitutional hearing process in June 2020. The judgment reveals an endemic deficiency of the institutional system. Thus, it is imperative for Ethiopia to establish an independent constitutional umpire to check and control the exercise of government power and support the transition to multiparty democratic governance in the country.

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

The Supreme Court decision in the now-infamous case Francis Karioko Muruatetu v Republic1 seemed to settle the enduring debate whether sentencing is a judicial or a legislative function. The court’s ruling was that sentencing is a judicial function and that the mandatory nature of the death penalty for murder2 was unconstitutional because it took away the courts’ discretion to determine a just and proportionate punishment to impose on a convicted person. In its judgment, the court ordered that the judiciary sentencing policy3 be revised to reflect the court’s guidelines on the obligation of courts to listen to the accused’s mitigation before sentencing. The court also directed that a framework for sentence rehearing be prepared immediately to allow applicants who had been sentenced in circumstances similar to those of the petitioners to apply for sentence a rehearing from the trial court. This article examines the aftermath of this judgment in terms of whether the Supreme Court’s decision helped to cure the challenge that lies in the current sentencing process; achieving coherence and proportionality in the sentencing process. By using jurisprudential arguments, we intend to demonstrate that, despite the court’s direction to all courts to ensure that no person should be subjected to a disproportionate sentence, the problem of disproportional sentencing is one that goes beyond merely reviewing of the sentencing guidelines but also demands a reform of the entire criminal justice system.

Nigeria and the Riddle of Two Constitutions

This article brings to the fore the problem of two constitutions (the 1963 and the 1999 Constitutions) coexisting in Nigeria. It argues that the ongoing debate on the need for Nigeria’s restructuring may not be resolved until this problem is addressed. By using a historical approach and an analytical research methodology, the article lifts the discourse about restructuring above mere political expediency to the realm of law, which is the only instrument for restructuring. The authors forcefully argue that the 1979 and 1999 Nigerian constitutions are “military unconstitutional constitutions” that lack legitimacy and legal validity. It submits that the 1963 Constitution, which made Nigeria a republican state, was never repealed but was used by the military to govern and it is, therefore, intact, unencumbered and operatable in the country. This paper argues that it is only after reverting to the 1963 Constitution that an honest and sincere search for a valid foundation upon which a truly federal, democratic and just Nigerian society can be built.

Judicial Interpretation of the Presidential Power of Pardon in Nigeria

The exercise of the presidential power of pardon has generated periodic controversies and elicited various reform proposals in Nigeria in recent times because this power is often exercised in ways that are clearly at odds with Nigerian society’s interests, including granting pardons to further narrow partisan interests and other personal ends. Of utmost concern is the question of the proper time to exercise this power—whether before or after conviction or at any time in-between. Although the Supreme Court of Nigeria takes the view that the power should not be exercised until after conviction, this paper examines, by way of a comparative analysis, the full amplitude of this power within the narrow confines of this riposteprovoking issue, juxtaposing the reasoning of the Supreme Court of Nigeria against the text of the Constitution, and concludes that, since pardon, an act of grace, operates outside of strict legal rules, subjecting its exercise by the president to the high due process threshold canvassed by the court would defeat the essence of this power.

The Interface Between National and International Law in Africa: Nigeria and Kenya in Comparative Perspective

This paper examines the interface between national and international law in Africa, with a special focus on Nigeria and Kenya, by comparatively examining both states. The choice of Kenya as a comparator is because, like Nigeria, Kenya is anglophone. Kenya has embarked on fairly recent constitutional reforms in relation to the position of international law in its legal system. The choice of Nigeria is because as an Anglophone African state, it represents the traditional attitude towards international law practised in Anglophone Africa. The purpose of the comparative analysis is to investigate whether there are lessons that Nigeria and other Anglophone African states may glean from Kenya’s constitutional law reforms. In addition to the comparative approach, the methodology is also doctrinal. It will be suggested that Anglophone African countries like Nigeria should adopt the current approach that Kenya has adopted towards engaging with international law at its national level.

Judicial Enforcement of Constitutionalised Anti-Corruption Principles: The Case of Kenya

The Constitution of Kenya 2010 has entrenched values and principles of leadership and integrity. Adherence to these values and principles is an eligibility criterion for appointment to public office. The Anti-Corruption and Economic Crimes Act 3 of 2003, one of the laws that give effect to constitutionally entrenched values and principles of leadership and integrity, provides for the suspension from office of public officers charged with offences relating to corruption and economic crime. The enforcement of these twin innovations, ethical standards on eligibility for state/public office and suspension from office pending trial, constitute a key cog in Kenya’s anti-corruption strategy. This paper examines the emerging practice and contestation in the enforcement of these twin constitutional innovations by the judiciary.

The Constitutionality of Covid-19 Measures Under the Nigerian Federal System

In November 2019, a novel coronavirus appeared in China. Once it enters a person’s body, it causes a disease known as Covid-19. This disease is highly communicable and began to spread to other parts of the world, including Nigeria. To prevent the spread of the disease in Nigeria, the Nigerian president, Muhammadu Buhari announced measures in a national broadcast, introducing new measures in an attempt to combat the disease. This article examines the constitutionality of the measures taken within the framework of the Nigerian federal system. The article finds that the president did not expressly declare a state of emergency, did not indicate the constitutional provisions relied upon in his broadcast, while he did rely on the Quarantine Act in respect of regulations made and introduced measures that were far-reaching that had a telling effect on the Nigerian federal system. The article argues that measures could have been taken under the derogation clause, the limiting clause in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Quarantine Act, the Fundamental Objectives and Directive Principles of State Policy and the provisions of the Nigerian Constitution on emergency powers. However, none of these instruments would have constitutionally justified suspending the Nigerian federal system without a controversy, except for measures taken in the exercise of emergency powers. The article concludes that, since the Nigerian president did not declare a state of emergency, the measures taken could be said to have been unconstitutional to the extent that they suspended federalism, if federalism is considered an expression of checks and balances, and not only a mechanism to manage diversity. Furthermore, even under a pandemic situation, excessive power should be checked.

A Reflection on Issues involved in the Exercise of the Power of the Attorney-General to enter A Nolle Prosequi under the 1999 Constitution of Nigeria

The 1999 Nigerian Constitution bestows on the Attorney-General the power to enter a nolle prosequi in criminal proceedings. This paper reflects on issues involved in the exercise of the constitutional power of nolle prosequi. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The paper finds that the exercise of the constitutional power of nolle prosequi for self-interest or political considerations of the Attorney-General is unconstitutional. The paper suggests the subjection of the exercise of the constitutional power of nolle prosequi to the permission of the court in line with the practice in other countries like the United States of America (USA) and Kenya.

The Economy in the Constitution: An Appraisal of Kenya’s 2010 Constitution as an Economic Charter

The idea of constitutions as instruments of political governance or ‘power maps’ is well established. Constitutions set down the foundation for political governance, establish organs of the state, allocate them power, define their relationships inter se, and most importantly, limit public power. The conception of constitutions as instruments of economic governance has not received as much scholarly attention. The lack of constitutionalism and rule of law has tended to coexist with poor economic prospects in Kenya and elsewhere in Africa, suggesting a link between them. This has made the question of whether constitutions and the idea of constitutionalism can contribute to better economic governance besides political governance, more important. While it cannot be assumed that the stipulations in a constitution on economic governance automatically translate into good governance and economic growth, such provisions are nonetheless important as they provide an encouraging impetus for sound economic governance that is indispensable in achieving growth and development. This article appraises Kenya’s Constitution as an economic charter that dedicates significant attention to regulating economic affairs through setting a foundation for the country’s economic orientation, protecting private property and enterprise, securing the rule of law and good governance, including economic governance, and making provisions on other economic concerns such as labour relations, consumer protection and competition.

Charles M Fombad and Nico Steytler, Corruption and Constitutionalism in Africa: Revisiting Control Measures and Strategies (Oxford University Press 2020)

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