Taming regressive constitutional amendments : the African Court as a continental (super) constitutional court

Abstract

The African Court on Human and Peoples’ Rights has the required substantive basis to function, and has in fact shown the willingness to operate, as a constitutional court for Africa. The Court has invalidated not only laws but also a constitutional provision as incompatible with relevant continental and sub-regional standards. The article argues that this extensive power of the African Court has implications for the empowerment of domestic constitutional courts to review the substantive validity of constitutional amendments. In combination with other constitutional and popular mechanisms of control, such an empowerment would constitute an additional veto point to stymie self-serving efforts undermining fundamental constitutional principles, so common in the African context. The express judicial empowerment and regulation of the review of constitutional amendments would allow constitutional designers to define the scope of the power, identify the enforceable substantive limits, and establish procedural and decision rules cognizant of the higher level of political consensus underwriting amendments. Counterintuitively, therefore, the recognition of domestic judicial review of constitutional amendments would limit judicial venture into constitutional politics.