The function of constitutional judges and judicial philosophy in Africa: Introduction to the special issuePosted: 17 December, 2021
Author: Trésor Makunya Muhindo
Postdoctoral Fellow and Publications Coordinator, Centre for Human Rights, Faculty of Law, University of Pretoria
This special issue is devoted to the function of constitutional judges and judicial philosophy in Africa through the lens of Justice Albie Sachs’ judicial philosophy. It emerges from presentations made by speakers at the virtual book launch of the French translation of Albie Sachs’ book ‘The strange alchemy of life and law’ (2021) organised on 19 November 2021 by the Pretoria University Law Press.
This issue is divided into three main parts. In the first part, Judge Albie Sachs and Emmanuel De Groof provide the background to the translation of the book. The book aims at bridging the divide between the common law and civil law legal traditions that African legal systems inherited through colonialism. The divide between the two legal traditions is so great that it seems African lawyers and judges based in the common law tradition and those from the civil law tradition operate in a completely different world.
|Author: Balingene Kahombo
Professor of Public Law and African International Relations, Faculty of Law, University of Goma (Democratic Republic of Congo)
|Author: Trésor M. Makunya
Doctoral Candidate & Academic Associate, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)
The Organisation for the Harmonisation of Business Law in Africa (OHADA) is a supranational organisation established by the Treaty of Port-Louis of 17 October 1993 to standardise business legislation and regulation in Africa. It was believed that the creation of OHADA will attract foreign investors because its norms increase legal and judicial security and certainty. The imperfection, disparity and inaccessibility of existing business-related legal rules and judicial institutions were identified as major problems to address. The OHADA sought to combat the ‘backwardness’ of African business law by adopting legislation regulating different aspects of business, such as company law, simplified recovery procedures and enforcement measures, and labour law. These laws are known as uniform acts.
For perhaps too long, the conventional wisdom has been that the best can come only from abroad; meaning Europe and America. From the perspective of constitutional law, the South African Constitution did more than just provide a clean break with the past. It provided a modern constitution which successfully borrowed and adapted many of the best principles from some of the major modern European constitutional models to fit with the realities of the country. Whilst not perfect, and there shall never be a perfect constitution, it shows how Africans can creatively find solutions to their problems.But it is perhaps the South African Constitutional Court, through the voluminous amount of jurisprudence that it has produced since 1995,that has attracted the most attention from constitutional experts all over the world and given rise to the feeling that the centre of modern constitutionalism might well be moving to Africa. For a continent that has been obsessed with blindly copying from the former colonial powers, there are many reasons to start looking at itself.Even the 1990s constitutional reforms in other African countries were still influenced by the inherited colonial constitutional models.