Jurisdemocracy: An approach to constitutionalism in the postcolony
Written constitutions in Africa set out what may be called “jurisdemocracy,” a third way between the two hitherto dominant constitutional paradigms: legal constitutionalism and political constitutionalism. A thorough examination of the role of written constitutions, their normative commitments, interpretive approaches, institutional frameworks, and rules of constitutional change reveals that they offer a new alternative for constitutionalism. By building on, and simultaneously diverging from, legal and political constitutionalism, jurisdemocracy reanimates key constitutional concepts such as democracy, liberalism, constitutional supremacy, separation of powers, and constitutional rights, making standard constitutional theories unsuitable in Africa. This article shows how jurisdemocracy better encapsulates the phenomenological reality of written constitutions and provides more effective normative and institutional resources than either legal or political constitutionalism for their implementation.
In this article, I introduce a degree of novelty into the scholarship on the nexus between constitutional identity and the constitutional subject. I do so by pluralizing both the territorial space constitutional identity exists and the constitutional subject it interacts. Drawing from the African Union continental constitutional framework, the Ethiopian national constitutional experience, and the Nigerian subnational constitutional practice, I show how the three-tiered political identity of the constitutional subject – Pan-African, national, and subnational- shapes the construction of constitutional identity at various levels differently. While the Pan-African identity of the constitutional subject assists in imagining a cosmopolitan constitutional identity at the continental level, the sub-national identity of this same constitutional subject supports the establishment of a unique constitutional identity at the national (Ethiopia) and subnational (Nigeria) levels. I demonstrate how the identity of the constitutional subject and its accompanying social and political movements offer a relevant material for the construction of constitutional identity, and how this, in turn, may shape, facilitate, or complicate the practice of constitutionalism in the African context.
The Four Faces of Ethiopian Federalism
Ethiopian federalism has been considered ethnic federalism. However, this
chapter argues that Ethiopian federalism is so much more than ‘ethnic
federalism’ and even more than federalism itself. Ethiopian federalism has four
faces, which are unitary, federal, confederal, and ethnocratic. While its unitary
feature defers the federal promises, its confederal aspect overshadows the federal
spirit. Similarly, its ethnocratic institutional arrangement not only creates
‘citizens’ and ‘subjects’, but also displaces the national project of creating a
federal democracy to the periphery. Although Ethiopian federalism has played
a key role in maintaining the country’s territorial integrity and political unity
after the fall of the military regime, it has not succeeded in creating the necessary
conditions for constitutionalism. Yet Ethiopian federalism has redefined key
concepts such as constituent power, national and constitutional identity, self-
determination, and territory in ways that are significant for comparative
federalism globally.