Abstract:
Transformative constitutionalism, popularised in the context of South
Africa’s transition from apartheid to constitutional democracy, arguably
offers an antidote for failed constitutionalism and weak protection of
fundamental rights and freedoms in emergent democracies in Africa. This
article examines the idea of transformative constitutionalism and its
implications for the adjudication of fundamental rights and freedoms. It
recognises that past failures of constitutionalism in Africa, to a significant
degree entailed state abuses of fundamental rights and the corresponding
inability of the courts to uphold these rights. Using examples of
adjudication of rights in the post-2010 period in Kenya and postapartheid
era in South Africa, the article argues that, taken as a model for
constitutionalism in Africa, transformative constitutionalism offers hope
for increased protection of fundamental rights and freedoms. The article
analyses the demands of transformative constitutionalism on the judicial
adjudication of rights, and concludes that the concept demands more
from judges than has traditionally been understood in the two legal
systems.
