Developments in African Constitutionalism (Issue 2)

Welcome to Lex Amica Journal’s weekly roundup of notable developments in African constitutionalism.

Each week, we highlight important court rulings, legislative changes, constitutional reforms, scholarly articles, and commentary that shape constitutionalism across the continent.

If you have news, cases, or analysis to share for inclusion in “Developments in African Constitutionalism”, email us at editorial@lexamicaug.org

From African Constitutional courts

1. South Africa’s Constitutional Court granted an extension of the suspension of invalidity of the Traditional and Khoi-San Leadership Act until May 2027, after finding that Parliament had failed to cure the constitutional defect identified in Mogale v Speaker of the National Assembly—its failure to facilitate public participation before passing the Act. While the Court found the Minister’s explanation for the delay unsatisfactory, it held that letting the Act lapse would severely prejudice millions in rural and Khoi-San communities whose leadership structures depend on it. However, it declined to issue a structural interdict to oversee Parliament’s process, citing separation of powers.

2. Uganda’s Constitutional Court partially allowed a petition challenging prolonged post-committal detention, declaring that detaining suspects for three to six years without trial violated their constitutional rights to a speedy trial and the presumption of innocence under Articles 28(1) and 28(3)(a). However, the Court declined to set mandatory maximum custody time limits or impose systemic reforms, holding that such measures fell within Parliament’s legislative mandate.

   
   

3. Zambia’s Constitutional Court upheld Section 5(1) of the Emoluments Commission Act No. 1 of 2022, which expanded the Commission’s mandate from “public officers” to “officers in State institutions.” The Court held that the change was constitutional, reasoning that the key criterion for inclusion under the Commission’s mandate is whether an entity’s emoluments are charged on the Consolidated Fund, as provided in Article 265(2).

   
   

4. The High Court of Zanzibar dismissed objections to a petition challenging the disqualification of a presidential candidate. The Court held that it has original jurisdiction to enforce constitutional rights, that access to court is a fundamental safeguard of constitutional supremacy, and that no prior notice is required in constitutional matters. Therefore, the case was allowed to proceed on its merits.

   
   

5. Kenya’s Supreme Court dismissed an appeal challenging the election of the Speaker of the Senate. It found that the winner met the constitutional eligibility requirements under Articles 99 and 85. It found no violation of the Constitution and held that the election process complied with Senate Standing Orders.

From Regional and International Courts and Tribunals

1. The African Court on Human and Peoples’ Rights struck out an application challenging violations of rights under the African Charter, including fair trial, presumption of innocence, and protection from cruel treatment, on the grounds of want of prosecution. After more than a year of inactivity, the Court found that the Applicant had negligently failed to advance the application and that it was no longer justified to continue its examination.

2. The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) has in a statement highlighted the ongoing challenges in advancing girls’ rights in Africa. While legislation in many countries now sets the minimum age of marriage at 18 and prohibits female genital mutilation (FGM), harmful practices persist, often justified by cultural norms. The Committee called on AU Member States to create participatory opportunities, strengthen multisectoral coordination, and engage community leaders to combat harmful practices through inclusive, locally driven approaches.

3. The International Criminal Court convicted Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’) of war crimes and crimes against humanity committed in West Darfur, Sudan, between August 2003 and March 2004. The Court found that the Accused exercised effective control and command over the Janjaweed, participating in and directing atrocities, including the murder of two individuals personally.

From the News

1. Ahead of Côte d’Ivoire’s 25 October election, security forces cracked down on opposition protests against President Ouattara’s contested fourth-term bid. With most candidates excluded, concerns over electoral credibility, political exclusion, and the risk of renewed violence grow.

2. Madagascar’s President Andry Rajoelina has reportedly fled the country following an alleged assassination attempt amid weeks of nationwide protests demanding his resignation. In a Facebook broadcast, Rajoelina, 51, claimed that military personnel and politicians had plotted a coup against him. A powerful army unit, the CAPSAT, has effectively taken control of the military, while opposition figures plan impeachment proceedings against Rajoelina.

3. Cameroon’s opposition leader, Issa Tchiroma Bakary, has unilaterally declared victory in the country’s recently concluded presidential election, urging long-serving President Paul Biya to concede. The government, however, reiterated that only the Constitutional Council has the authority to declare official results, warning that any unilateral announcement could constitute “high treason.” The Constitutional Council has until October 26 to announce the official outcome.