Constitutional jurisdiction and the right to happiness

saul_lealAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Should it be a role of the Judiciary to assure happiness for the people? Is it appropriate for a Constitutional Court to consider happiness to be a right? Does the establishment of fundamental rights expand the collective happiness? To answer these questions, it is essential to examine the root of Constitutional jurisdiction.

Karl Loewenstein questioned whether the Constitution would be “instrumental for the pursuit of happiness of the people”,[1] based on his intrigue into the purpose and meaning of a Constitution. He is accompanied by Hans Kelsen, for whom “the longing for justice is man’s eternal longing for happiness”.[2]

The answer to the aforementioned questions lies within the examination of the Constitution of the State of Pennsylvania, in the United States, in 1776, in order to address the power given to the courts to assess the constitutionality of the laws and of normative acts.

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Banning female circumcision in The Gambia through legislative change: The next steps

satang_nabanehAuthor: Satang Nabaneh
Lecturer at the Faculty of Law, University of The Gambia.

There is nothing more powerful than a decision made at the right time, especially one which is a desideratum. So it was with the ban on female genital mutilation (FGM) in The Gambia. From the coastal village of Brufut, on the chilly night of 24 November 2015, President Jammeh declared a ban on FGM stating that it was a cultural and not a religious practice (that is not to say that the practice would have been justifiable if it was a religious practice, given its well documented harmful effects). The news was as unexpected as it was music to the ear. It was every campaigner’s wish, to see an end to FGM in The Gambia. This was swiftly followed by the passing of the Women’s (Amendment) Bill 2015 by the National Assembly on 2 December 2015 to prohibit female circumcision. The amendment addresses one of the key deficiencies of the Women’s Act 2010 which was the absence of a provision on eliminating harmful traditional practices. The Amendment Act added sections 32A and 32B in the Women’s Act. With the enactment, The Gambia joined a number of African countries in adopting legislation as a reform strategy for ending FGM.

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In defence of these “disgusting and unnatural”


Benjamin_NgaruAuthor: Benjamin Ng’aru

Legal Assistant, Local Authorities Pensions Trust; Volunteer Programmes Assistant, Legal Exchange Centre, Nairobi, Kenya

On Monday 25 February 2014, Uganda’s long serving president Yoweri Museveni signed the Anti-Homosexuality Act of 2014 (previously referred to as Kill the Gays Bill”). The Long Title thereof provides that this “Act [is intended] to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.” Museveni has also, on record, called homosexuals “disgusting and unnatural” persons. The legislation has since received widespread condemnation from human rights organisations and leaders across the globe.

Whereas homosexuality was, since the colonial era, outlawed with the introduction of the British colonial rule and justice system, the new legislation is an all time low. Section 2(2) of the Act provides for a mandatory life sentence for persons convicted of “homosexual acts”. Section 1 of the Act has a wide margin of what constitutes “homosexual acts” such as “the touching of another’s breast, vagina, penis or anus, … however slight …. with any part of the body or through anything”.

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