Designing institutions and mechanisms for the implementation and enforcement of the constitution : changing perspectives in Africa

Abstract

Until fairly recently, the issue of constitutional implementation has surprisingly received little attention both in constitutional theory and practice. Yet it is a crucial aspect of constitutional effectiveness. Without a carefully thought-out strategy for implementing and enforcing a constitution, its practical effectiveness in promoting constitutionalism, respect for the rule of law, and good governance may be quite limited. The Kenyan 2010 Constitution provides a backdrop against which this article examines certain critical issues in designing institutions and mechanisms for ensuring that a constitution is properly implemented and enforced.

The article starts by briefly considering the importance of and challenges in implementing and enforcing constitutions. It then uses the evidence from recent developments in constitution-making to identify some of the core constitutional implementation and enforcement institutions. The article then looks at the Kenyan example which, in Africa, presently provides the best example of a carefully thought-out and well-designed constitutional implementation strategy. Based on this, the article then considers some of the key elements in designing an effective constitutional implementation framework. In concluding, the article argues that incorporating and entrenching effective constitutional implementation mechanisms must be made one of the top priorities in designing constitutions. Furthermore, designing any constitutional institution to oversee, supervise, and monitor the implementation of the constitution must also now be recognised as one of the critical elements for entrenching constitutionalism and respect for the rule of law.