The International Association of Constitutional Lawyers (IACL) and the Konrad-Adenauer-Stiftung(KAS) Rule of Law Programme have commended countries with unflinching commitment to fundamental rights and upholding the rule of law.
The law bodies also commended structures of governments in African countries such as South Africa and Kenya that respect principles such as the separation of powers and the basics of democracy putting them at par with India.
Giving tone to the proceedings of a conference of African constitutional lawyers held in Botswana recently, the Secretary General of the International Association of Constitutional Lawyers(IACL) Professor David Bilchitz, pointed out, on behalf of the President of the Association Professor Adriene Stone, that it is not easy standing for these basic and decent values of a society in the face of oppressive, self serving political leaders and elites.
“Whilst South Africans are much more humble today about our transition, recognizing that many problems persist and the path to a just society is a long and winding one,we have seen more recently how a combination of independent media,independent institutions and fearless courts can help expose corruption and in fact lead to a change of political leadership,” appraised Bilchitz who happens to be South African.
Former President of South Africa Jacob Zuma was forced to step down before the end of his term by his own party – the ruling African National Congress – amid allegations of corruption and.
Bilchitz also applauded the bravery of judges in Kenya who refused to rubberstamp a flawed election, and the courage of many of the African people in Zimbabwe, Cameroon and the Democratic Republic of Congo who were able to call out a corrupt political elite even in the face of threats to their own lives and wellbeing.
The IACL spokesperson motivated African constitutional lawyers that by linking up through their network, not only will it serve them in terms of solidaity,in fact it is potent with tangible consequences. The network, he said, should encourage an understanding of developments in jurisprudence and thinking across the world that can in turn inluence local jurisdictions.
Moreover, he added, it would provide a valuable source of reference for comparative law anaysis in tackling similar or related cases in the different matters and various jurisdictions in which the participants will be expected to apply themsemselves.
He said recent decriminalization of consensual same sex sexuality in India is one case in point adding
The Indian Supreme Court had a rich array of decisions to draw from as acknowledged in its judgement cited by Professor Bilchitz. He said they were aware that the socio-historical contexts differed from one jurisdiction to another and that they must therefore look at comparative law making allowances for them.
“However the overwhelming weight of international opinion and the dramatic increase in the pace of recognition of fundamental rights for same sex couples reflect a growing consensus towards sexual orientation equality,” Judge Justice Chadrachud, of India pronounced.
Continued the judge, “We feel inclined to concur with the accumulated wisdom reflected in these judgements, not to determine the meaning of the guarantees contained within the Indian Constitution, but to provide a sound and appreciable confirmation of our conclusions about those guarantees.”
The Indian Supreme Court referenced the United Nations(UN) Human Rights Committee, the United States Supreme court, the Canadian Supreme Court and the European Court on Human Rights and the South African Constitutional Court as well.
In turn, the Indian Court’s decision has become a canon that potentially influences our own continent,and many further arguements opened by the Kenyan Supreme Court in light of this decison attest to this.
These decisions are viewed as highlighting how comparative law can help advance fundamental rights. For example, with the benefit of comparative analysis it has been established that criminalization laws of this kind and many others that the Indian Court and courts in African countries including Botswana, are seized with, were replicated as a model across the former British Empire and are clearly a residue of colonialism and they are in fact deeply un-African.
In recognition of the giant stride made by the Kenyan Courts in terms of far reaching decisions and their implications for constitutionalism, the Konrad Adenaeur Stiftung(KAS) Rule of Law Programme for Sub-Saharan Africa has embarked on a project to package the most significant of those judgements and experts observations pertaining to them into books which are also availabe in e-book form.
Director of KAS, Dr.Arne Wulff has said, “At the end of the year we hope to publish the second edition of the commentary on Kenya’s Constitution from 2010 which is written by Luis Franceschi, the Dean of Strathmore University in Nairobi and Professor PLO Lumumba, from Kenya as well.So there is a need to actualize the commentary since there has been many judgements made since the last publication.”
