The judicial entrenchment of constitutionalism in Africa: A comparative overview of the positive development in the Kenyan and South African jurisdictions

Abstract

Similarly, to most of their counterparts in Africa, South Africa and Kenya have a history of disrespecting constitutionalism by flouting their constitutions. This occurs despite the good intentions to preserve judicial independence, the rule of law, democracy and constitutionalism displayed by these countries by enshrining these values in their constitutions. The guarantee of judicial independence by the constitution is essential for an impartial judge to preside without bias or favor over matters that involve the violation of the constitution by the executive, the legislature and even the judiciary itself. It is the enshrining of the independence of the judiciary that enables the Kenyan and South African courts respectively to deliver judgements that have declared unconstitutional and invalid the election of a sitting president during a presidential election in Kenya, declaring the conduct of the president and the legislature unconstitutional and invalid in South Africa and forcing these institutions to comply with the constitution. While both Kenya and South Africa can learn from each other with respect to the preservation of constitutionalism, it is more important that the democracies in the world should learn from these democracies which have taken giant steps in protecting judicial independence and, ultimately, preserving constitutionalism.