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THE ADVISORY JURISDICTION OF CONSTITUTIONAL

COURTS IN SUB-SAHARA AFRICA
ADEM KASSIE ABEBE*
CHARLES MANGA FOMBAD**
I.
INTRODUCTION
Contemporary constitutional law has witnessed a waning of the

concept of parliamentary supremacy and the increasing empowerment of the weakest and least dangerous branch of the traditional
tripartite state structure, the judiciary.1 An overwhelming majority
of constitutions around the world recognize the power of courts to
interpret constitutional provisions and to invalidate unconstitutional laws and other measures.2 Indeed, today various forms of
constitutional review have spread into every corner of the globe
* Postdoctoral Fellow and Academic Coordinator of LL.M in Human Rights and
Democratisation in Africa, Centre for Human Rights, University of Pretoria. LL.D 2012,
University of Pretoria; LL.M 2009, University of Pretoria; LL.B 2007, Jimma University,
Ethiopia.
** Professor of Law and Head of the African Constitutional Law Unit, University of
Pretoria, South Africa. Diploma in Conflict Resolution 2001, University of Uppsala; Ph.D.
1986, University of London; LL.M. 1982, University of London; Licence en Droit 1981,
University of Yaounde.
1. C. Neal Tate, Comparative Judicial Review and Public Policy: Concepts and Overview, in
COMPARATIVE JUDICIAL REVIEW AND PUBLIC POLICY 1, 4 (1992); see Ran Hirschl, The New
Constitutionalism and the Judicialization of Pure Politics Worldwide, 75 FORDHAM L. REV. 721,
721 (2006) (explaining that over the last few decades, there has been a profound transfer
of power from representative institutions to judiciaries worldwide).
2. As of 2011, more than seventy-two percent of the worlds constitutions gave courts
the power to review the constitutionality of laws. For an empirical study of the origins of
juristocracy, see Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Constitutional
Review?, J.L. ECON. & ORG., July 23, 2013 at 2. Several theories have been propounded to
explain the unprecedented levels of judicial empowerment. Traditionally, division of powers (federalism) and the prominence of human rights have provided the main justifications to the recognition of judicial review. MARTIN SHAPIRO & ALEC STONE SWEET, ON LAW,
POLITICS, AND JUDICIALIZATION 149, 15156 (2002); Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD HANDBOOK OF LAW AND POLITICS 81, 82 (2008). Newer
theories view constitutional review as an insurance scheme whereby risk-averse politicians
in electorally competitive states opt to establish strong and independent courts as alternative forums for challenging government action if and when they are not in power. TOM
GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES
24 (2003); RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCE OF THE
NEW CONSTITUTIONALISM 12 (2004). The expansion of the institution of constitutional
review may also be a result of international norm diffusion where states attempt to emulate
developments in other countries.
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and into every level of political association.3 Constitutional review

grew in prominence in Africa particularly following the constitutional and democratic transformations of the 1990s.4 The expansion of constitutional review in Africa and beyond reflects a broad
political and academic consensus that constitutional democracy
requires the establishment of procedures to monitor compliance
with constitutional standards.
The jurisdiction of constitutional adjudicators often extends to
contentious issues in the context of concrete cases and controversies.5 Despite strong objections based on democratic theory of
the power of independent courts to review the constitutionality of
laws, even in concrete cases,6 and although abstract review poses
the countermajoritarian difficulty unambiguously,7 some constitutions confer on their highest courts the power to provide
guidance to political organs through advisory opinions. The
advisory jurisdiction of courts is particularly recognized at the
international level. While all major international tribunals can
issue advisory opinions,8 the recognition of the advisory juris3. MICHAEL LOUIS CORRADO, COMPARATIVE CONSTITUTIONAL REVIEW: CASES AND
MATERIALS xvi (2004).
4. Unless the context requires otherwise, the terms constitutional adjudicator,
constitutional court, and court are used interchangeably to refer to the organ in charge
of reviewing the constitutionality of laws and other decisions. The terms constitutional
review or judicial review refer to the review of laws and government decisions to ascertain their compatibility with constitutional standards.
5. See, e.g., U.S. CONST. art. III, 2 (providing that judicial Power shall extend to
specified categories of Cases and Controversies).
6. The democratic objection opposes as illegitimate and inappropriate the power
of unelected judges to review the constitutionality of laws. Alexander Bickel noted,
because constitutional review allows unelected judges to control the choices of elected
majorities, the process raises the countermajoritarian dilemma or difficulty. ALEXANDER
BICKEL, THE LEAST SERIOUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16
(1986). The democratic objection is perhaps the most prominent theoretical objection to
the practice of constitutional review. In addition, some scholars oppose the power of
courts to adjudicate socio-economic rights on grounds of competence. See Pilar Domingo,
Introduction, in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE POOR? 1, 2 (2006).
7. Alec Stone, Abstract Constitutional Review and Policy Making in Western Europe, in
COMPARATIVE JUDICIAL REVIEW AND PUBLIC POLICY 41, 55 (Donald W. Jackson & C. Neal
Tate eds., 1992).
8. See Anthony Aust, Advisory Opinions, 1 J. INTL DISP. SETTLEMENT 123, 12324
(2010) (on the advisory jurisdiction of the International Court of Justice); Julie Calidonio
Schmid, Advisory Opinions on Human Rights: Moving Beyond a Pyrrhic Victory, 16 DUKE J.
COMP. & INTL L. 415, 417 (2006) (on the advisory jurisdiction of the European Court of
Human Rights, the Inter-American Court on Human Rights, and the African Court on
Human and Peoples Rights). See also AP van der Mei, The Advisory Jurisdiction of the African
Court on Human and Peoples Rights, 5 AFR. HUM. RTS. L.J. 27, 27 (2005).
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diction of domestic courts is more often the exception than the

rule.9
This Article explores the advisory jurisdiction of constitutional
adjudicators in Sub-Sahara African countries. Almost all constitutions in Africa establish procedures through which the constitutionality of laws and executive measures may be challenged,
especially based on fundamental rights provisions.10 Additionally,
constitutional courts in some countries have jurisdiction to issue
advisory opinions.11 Moreover, in some countries, laws may be
challenged in the abstractoutside the context of specific facts
and partiesor in the absence of harm from state action.12
The advisory jurisdiction of constitutional adjudicators in Africa
has not been explored from a comparative perspective. In fact,
Africa has largely been absent from the burgeoning scholarship on
comparative constitutional law. Henry Kwasi Prempeh lamented
that [w]ith the notable exception of South Africa, African nations
continue to lie largely outside the mainstream of contemporary
comparative constitutional discourse.13 Mary Dubziak similarly
noted that [a]midst the blossoming of comparative scholarship,
most of the continent of Africa is usually overlooked, as if it were a
legal Heart of Darkness, as if it were a lawless world.14 This Article contributes to the limited comparative scholarship on the advisory jurisdiction of constitutional adjudicators in Africa, and thus
expands the geographical reach of comparative constitutional
studies.
The Article is organized as follows. Part II presents the concept
and brief history of advisory jurisdiction. Part III investigates the
9. Aust, supra note 8, at 124 (observing that in common law countries there is a
deep-seated objection to a court giving views on a matter that does not determine the
rights of litigants in an actual dispute).
10. See Arne Mavèiè, Constitutional-Judicial Review, http://concourts.net/tab/tab1.php
?lng=en&stat=1&prt=0&srt=0 (last visited Oct. 8, 2013) (providing a tabular presentation of
areas in which constitutional complaints may be made).
11. E.g., CONSTITUTION, art. 163(6) (2010) (Kenya) (empowering the Supreme Court
to issue advisory opinions at the request of government organs).
12. E.g., S. AFR. CONST., 1996, 38(d) (allowing anyone to request a court to enforce
constitutional rights in the public interest). At least one-third of the members of the
National Assembly may refer an act of Parliament that has been signed into law by the
president for review by the Constitutional Court. Id. 80 (explaining the procedure for an
application by members of National Assembly to the Constitutional Court for an order
declaring unconstitutional all or part of an act of Parliament).
13. H. Kwasi Prempeh, Africas Constitutionalism Revival: False Start or New Dawn?, 5
INTL J. CONST. L. 469, 469 (2007).
14. Mary L. Dudziak, Who Cares About Courts? Creating a Constituency for Judicial Independence in Africa, 101 MICH. L. REV. 1622, 1630 (2003).
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advisory jurisdiction of courts in selected African countries, observing that there is an increasing convergence in the constitutional
practice of African states toward recognizing the power of constitutional courts to review laws in the abstract both before and after
their final promulgation. Part IV explores theoretical and practical
criticisms and justifications of advisory jurisdiction, arguing that
theoretical and practical criticisms of advisory jurisdiction are overstated. Part V concludes that a priori abstract review enhances constitutionalism by clearing any clouds of doubt surrounding the
constitutionality of proposed laws. The procedure may also facilitate the smooth resolution of potential legislative-executive
deadlock.
This Article also explores the advisory jurisdiction of constitutional adjudicators in selected Sub-Sahara African countries,
including countries in the Francophone, Anglophone, and
Lusophone legal systems, as well as Ethiopia. It reviews all the linguistic groups and legal systems in Sub-Sahara Africa.15 The selection also ensures the representation of the institutional and
procedural mosaic in relation to constitutional adjudication in general and advisory jurisdiction in particular. However, while representative, the constitutional review systems in the selected
countries still retain institutional and procedural discrepancies
from the systems of other countries within their same linguistic
group.
II.
THE CONCEPT AND HISTORICAL EVOLUTION

OPINIONS OUTSIDE OF AFRICA
OF
ADVISORY
An advisory opinion is the authoritative interpretation or exposition of the legal or constitutional status quo in the absence of
actual disputes.16 It refers to the determination of the constitutional implications of laws, bills, and other proposed measures in
the abstract, placing it outside the context of traditional adversarial
litigation.17 Advisory opinions are answers provided by the members of a high court to questions posed by the executive or a legisla15. Although beyond the scope of this Article, countries in North Africa have also
established constitutional courts with a priori and a posteriori review powers. E.g., CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May 22, 1980, May 25,
2005, March 26, 2007, December 26, 2012, art. 177 (establishing the Supreme/High Constitutional Court with exclusive jurisdiction to review the constitutionality of laws and regulations). The constitutions of Francophone North African countries establish
constitutional review systems comparable to the French system.
16. Schmid, supra note 8, at 415.
17. See Aust, supra note 8, at 124.
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tive body on a legal question pending before that authority.18 The

advisory procedure intends to enable the political organs to obtain
judicial guidance and clarification on points of law in the absence
of a live case or controversy, rather than to redress past harm.19
The procedure helps to prevent potential future harm by providing legal guidance in advance, especially when the opinion is rendered before a particular law is adopted or a proposed course of
action pursued.20
Advisory jurisdiction therefore includes abstract review procedures whereby the constitutionality of laws or practices may be
challenged in the absence of specific facts and parties.21 The
absence of factual determinations and the non-concrete nature of
the courts analysis permeate both advisory opinions and abstract
review. Abstract review essentially involves the determination of
the constitutionality of some or all provisions of a law without
regard to any particular facts, and sometimes even before the promulgation of a proposed law.22 Abstract review is particularly common in civil law countries with centralized constitutional review
systems.23 Both advisory opinions and abstract review procedures
are often initiated at the insistence of political organs.24 Moreover,
often only the highest court has the jurisdiction to issue advisory
opinions or review the constitutionality of legislation in the
abstract.25 However, while the outcomes of abstract review procedures are often considered binding, advisory opinions are often
18. James R. Rogers & Georg Vanberg, Judicial Advisory Opinions and Legislative Outcomes in Comparative Perspective, 46 AM. J. POL. SCI. 379, 380 (2002).
19. See Aust, supra note 8, at 124.
20. James L. Huffman & MardiLyn Saathoff, Advisory Opinions and Canadian Constitutional Development: The Supreme Courts Reference Jurisdiction, 74 MINN. L. REV. 1251, 1316
(1990).
21. John C. Blakeman, Book Note, 8 L. & POL. BOOK REV. 218, 21821 (1998), available at http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/jay.htm (defining abstract
review as a form of judicial advisement of non-judicial branches of government).
22. Stone, supra note 7, at 42 (observing that abstract review is not dependent on, or
incidental to, concrete litigation or controversy involving a statute. The abstract review
process results in a decision on the prima facie constitutionality of a legislative text . . . [, so]
the process is a purely exegetical exercise.)
23. Id. at 4244 (discussing the development of judicial review in Europe).
24. See, e.g., CONSTITUTION, art. 163(6) (2010) (Kenya) (explaining that only the
national government, any State organ, or any county government may submit requests for
an advisory opinion).
25. See, e.g., S. AFR. CONST., 1996, 80 (explaining that only the Constitutional Court
has the power to receive applications by members of the National Assembly challenging
the constitutionality of an act of Parliament within thirty days after the promulgation of the
act by the president).
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considered purely consultative, and thus non-binding.26 Nonetheless, in some countries advisory opinions are considered binding.27
Another difference is that in advisory opinion proceedings, the
government organ often does not have a clear stance on the issue.
In abstract review, on the other hand, the government presents its
position, and the purpose of the review is to decide whether the
government position is constitutionally defensible. This Article
covers both pure advisory procedures as well as abstract review.
A.
Non-Advisory Forms of Review
The concept of advisory opinions and abstract review must be

distinguished from concrete review where the constitutionality of
laws is assessed in terms of its application to particular facts and
parties. This Article mainly investigates the advisory jurisdiction of
constitutional adjudicators. It does not address the referral of constitutional issues necessary to the resolution of pending cases by
lower court judges to constitutional adjudicators.28 In such cases,
although the constitutional adjudicator still decides on the constitutionality of laws in the abstract, the original controversy arises out
of contentious cases in lower courts.29 More often than not, the
court considers the constitutional issue in the context of the facts
that gave rise to it.30 The consideration of constitutional issues
based on specific facts is therefore more concrete than abstract.
Advisory jurisdiction should also be distinguished from cases
where courts, while deciding contentious cases, indicate in passing
constitutionally acceptable or unacceptable courses of action to the
political organs, despite the fact that such determination is not
necessary or directly relevant to the resolution of pending legal dis26. See BLACKS LAW DICTIONARY 1125 (8th ed. 2004) (defining advisory opinion as
a nonbinding statement by a court of its interpretation of the law on a matter submitted
for that purpose).
27. E.g., In re The Matter of the Interim Independent Electoral Commission, (2011)
eK.L.R. para. 92 (C.A.K.) (Kenya) (ruling that its advisory opinions are binding).
28. See Alec Stone Sweet, The Politics of Constitutional Review in France and Europe, INTL
J. CONST. L. 69, 82 (2007).
29. Stone, supra note 7, at 4546.
30. Pasquale Pasquino, New Constitutional Adjudication in France: The Reform of the Referral to the French Constitutional Council in Light of the Italian Model, 3 INDIAN J. CONST. L. 105,
117 (2009) (observing that in the Italian context, it is evident, reading the sentences of
the Italian Court that the judgment about the constitutionality of the statute is made, very
often, considering the problems that appear in the concrete application of the legislative
norm, also considering the specific case the ordinary judge had in front of her when she
sent the preliminary question).
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putes.31 Here, courts provide dictum, which is advice to guide or

encourage future courses of action.32 For example, in a case that
involved the constitutionality of a ban on independent candidacy
in Tanzania, the Court of Appeal observed that the ban was not
contrary to any provision of the Constitution.33 Nevertheless, the
Court advised the attorney general and Parliament to take into
account the views of the U.N. Human Rights Committee that
[t]he right of persons to stand for election should not be limited
unreasonably by requiring candidates to be members of parties or
of specific parties.34 This Article addresses self-standing advisory
or abstract opinions rendered outside the context of specific cases
or controversies and not with advice offered as obiter dicta in the
context of contentious cases.35
B.
The English Origin of Advisory Opinions
Historically, the practice of courts giving extra-judicial advisory

opinions originated in England36 before the recognition of the
principle of separation of powers between the judiciary and political organs.37 The increasing aversion of English courts to accept
31. See Neal Kumar Katyal, Judges as Advicegivers, 50 STAN. L. REV. 1709, 1709 (1998)
(observing that [a]dvicegiving occurs when judges recommend, but do not mandate, a
particular course of action based on a concern for rule or principle in a judicial case or
controversy). By giving advice in the form of dicta, courts clarify constitutional issues, or
shine light on particular matters. Id. at 1711. Katyal identified advicegiving as the
fourth function of courts in addition to invalidating government decisions, legitimating
such decisions, or declining to decide the issue by invoking Bickelian passive virtues. Id.
at 1709. See also Samuel L. Bray, Preventive Adjudication, 77 U. CHI. L. REV. 1275, 127677
(2010) (explaining constitutional concerns about preventative adjudication through issuance of advisory opinions); Girardeau A. Spann, Advisory Adjudication, 86 TUL. L. REV.
1289, 1292 (2012) (explaining that separation of powers concerns limit adjudication to the
retrospective resolution of particular cases and controversies and the U.S. Supreme Court
invokes the doctrine of mootness to refrain from issuing an advisory opinion).
32. Katyal, supra note 31, at 1714.
33. Attorney General v. Mtikila, at *48 (Ct. App. June 17, 2010) (Tanz.).
34. General Comment No. 25, U.N. Human Rights Comm., para. 17, U.N. Doc.
CCPR/C/21/Rev.1/Add.7 (Aug. 27, 1996).
35. See Note, Advisory Opinions and the Influence of the Supreme Court over American Policymaking, 124 HARV. L. REV. 2064, 2067 (2011) (explaining that judges may give legal guidance incidentally through extrajudicial publications and interviews, dicta in judicial
opinions, and ex parte advice to political actors).
36. ALBERT R. ELLINGWOOD, DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 1
(1918) (observing that the issuance of advisory opinions by English judges is a practice
almost as old as the legal memory defined by statute); see also Robert J. Pushaw, Jr., Why the
Supreme Court Never Gets Any Dear John Letters: Advisory Opinions in Historical Perspective, 87
GEO. L.J. 473, 47577 (1998) (book review) (observing that English courts had a longstanding practice of providing advisory opinions at the request of the Monarch).
37. Margaret M. Bledsoe, Comment, The Advisory Opinion in North Carolina: 1947 to
1991, 70 N.C. L. REV. 1853, 185557 (1992).
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requests for an advisory opinion finally led to the rejection of the

advisory jurisdiction by the Judicial Committee of the Privy Council
in 1912.38 Nevertheless, the Privy Council maintained that courts
could give advisory opinions if a statute expressly granted them
such authority.39 The English Parliament has adopted some statutes that authorize courts to issue advisory opinions.40 For example, the Judicial Committee Act allowed the King to seek and
obtain advisory opinions on any point whatsoever.41 English
judges, however, issue advisory opinions reluctantly.42
C.
Use of Advisory Opinions in North America and Australia
The U.S. Supreme Court has always refused requests for advisory
opinions and even rejected a statutory provision authorizing the
issuance of advisory opinions on specific issues.43 Their rejection
of advisory jurisdiction is based on the principle of separation of
powers and the case or controversy requirement in Article III of
the U.S. Constitution, which defines the judicial power of the U.S.
Supreme Court.44 However, this strict interpretation of the doctrine of separation of powers did not prevent the inclusion of advi38. Id. at 185657.
39. Id. at 1856.
40. Id.
41. Id.
42. See The Queen v. East Sussex County Council, [2003] EWHC (Admin) paras.
16364 (U.K.) (observing that the fact remains that courts . . . exist to resolve real
problems and not disputes of merely academic significance. Judges do not sit as umpires
on controversies of the Academy. Nor is it the task of a judge when sitting judicially . . . to
set out to write a textbook or practice manual or to give advisory opinions . . . . [I]t is no
function of the court . . . to give advisory opinions on questions raised in the abstract. The
proper application of the law can only be determined in the context of a particular factual
situation, decided on the facts of a concrete case.) (internal citation omitted), available at
http://www.movingandhandlinginstructors.co.uk/eastsussexcase.pdf (last visited Oct. 8,
2013).
43. Advisory Opinions and the Influence of the Supreme Court over American Policymaking,
supra note 35, at 2064 (counting the bar on advisory opinions, among the oldest and most
foundational self-imposed justiciability doctrines); see also Helen Hershkoff, State Courts
and the Passive Virtues: Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1844
(2001); CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 65 (1994) (noting that the ban on
advisory opinions as the oldest and most consistent thread in the federal law of
justiciability).
44. But see STEWARD JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES
14970 (1997) (arguing that politics, history, and personality of the judges of the time
rather than the principle of separation of powers played the uppermost role in the decision of the Supreme Court in 1793 to refuse to issue advisory opinions). According to Jay,
historical circumstances, political expediency, and institutional self-interest, rather than
some abstract constitutional doctrine or logic, explain the restraint exercised by the judges
of the time. Id.
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sory jurisdiction in state constitutions.45 Currently, eleven states

recognize the power of their highest courts to issue advisory opinions at the request of the political organs on important legal or
constitutional questions.46
The Australian High Court has similarly refused to issue advisory
opinions on legal or constitutional issues, ruling that judicial power
only extends to the power to rule on matters that exist when
there is some immediate right, duty or liability to be established by
the determination of the Court.47 Several constitutional reform
proposals to extend the jurisdiction of the High Court to issue advisory opinions have been defeated.48
Unlike its southern neighbor, the Supreme Court of Canada has
the power to issue advisory opinions at the insistence of political
organs.49 The Supreme Court Act authorizes the Supreme Court
to render advisory opinions on important questions of law or fact
at the behest of the federal cabinet through the Governor General.50 All matters referred to the Court by the federal cabinet are
presumed to be important questions.51 Some of the most important constitutional decisions of the Canadian Supreme Court have
actually been advisory opinions, including the opinion on the legal
rights of Quebec to secede from the Canadian federation.52
D.
Advisory Opinions in Western Europe
The expansion of constitutional review in Western Europe after

the Second World War led to the official recognition of abstract
45. Bledsoe, supra note 37, at 1857.
46. Rogers & Vanberg, supra note 18, at 380. Moreover, prior to the creation of the
Federal Supreme Court, state judges freely gave legal advice to the government. See generally JAY, supra note 44, at 15051 (finding that the theory of separation of powers as developed through the 1780s did not preclude advisory opinions).
47. In re Judiciary and Navigation Acts (1921) 29 CLR 257, 264 (Austl.) (declaring
that it did not have the power to issue advisory opinions because this would contradict the
principle of separation of powers enshrined in the Constitution). The original jurisdiction
of the High Court of Australia is limited to constitutional matters. AUSTRALIAN CONSTITUTION ss 75, 76.
48. See generally John M. Williams, Advisory Opinions: A Well-Covered Harbour, 22 BOND
L. REV. 169 (2010) (providing a narration of the historical attempts).
49. For an in-depth analysis of the advisory jurisdiction of the Canadian Supreme
Court, see Huffman & Saathoff, supra note 20, at 131721 (The American presumption
against advisory opinions is as ingrained as the Canadian presumption in favor of the reference system.).
50. Supreme Court Act, R.S.C. 1985, c. S-26, 53 (Can.). See also Huffman & Saathoff,
supra note 20, at 126263.
51. Supreme Court Act, R.S.C. 1985, c. S-26, 53(3) (Can.).
52. In re Section 53 of Supreme Court Act, R.S.C., 1985, c. S-26, [1998] 2 S.C.R. 217
(Can.).
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review in many states.53 In Germany, for instance, where there are

disagreements or doubts concerning the compatibility of competing federal, state, and Basic Law, the federal government, state governments, or a one-fourth vote of the Federal Parliament may refer
the matter to the Constitutional Court.54 These bodies may only
refer laws to the court after their final promulgation by the Federal
Parliament.55 The Constitutional Court then performs an abstract
review,56 similar to the characteristics of advisory opinions
explained above.57
The a priori review procedure in France is also characterized by
its abstract nature.58 The French Constitutional Council, however,
has the power to rule on the constitutionality of bills after adoption
by Parliament, but before their final promulgation.59 The president of the republic, prime minister, president of the National
Assembly, president of the Senate, or at least sixty members of the
Senate or National Assembly may submit a request for the a priori
review of bills.60 Abstract review is therefore common in countries
with centralized constitutional review systems.61
Even in countries where abstract review is officially rejected,
there may be instances where courts actually engage in abstract
constitutional interpretation beyond the context of the specific
parties and facts presented in a case.62 It is common for courts to
indicate in obiter dicta acceptable or unacceptable constitutional
53. Stone, supra note 7, at 4142.
DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC
54. GRUNDGESETZ FUR
LAW], May 23, 1949, BGBI. I, art. 93(1) 2, 22 (Ger.) [hereinafter CONSTITUTION OF GERMANY]; see Erhard Denninger, Judicial Review Revisited: The German Experience, 59 TUL. L. REV.
1013, 1026 (1985).
55. CONSTITUTION OF GERMANY, art. 93(1) 2, 22.
56. Danielle E. Finck, Judicial Review: The United States Supreme Court Versus the German
Constitutional Court, 20 B.C. INTL & COMP. L. REV. 123, 147 (1997).
57. See supra notes 1630 and accompanying text.
58. Sweet, supra note 28, at 71 (observing that the French Constitutional Council is
the only European constitutional court whose jurisdiction is limited to abstract review).
59. 1958 CONST. art. 61(1) (Fr.). Prior to 2008, the French Constitution only recognized a priori constitutional review, that is, review after a bill has been enacted but before
its final promulgation. A 2008 Constitutional Amendment (Article 61(1)) introduced the
concept of a posteriori review into French constitutional law. Id. Under the amendment,
the apex courts may refer constitutional issues to the Council if the resolution of such
issues is necessary to resolve the dispute before them. See Pasquino, supra note 30, at 105
(discussing the 2008 amendment reforming the referral to the French Constitutional
Council).
60. 1958 CONST. art. 61 (Fr.).
61. Eivind Smith, Introduction, in CONSTITUTIONAL JUSTICE UNDER OLD CONSTITUTIONS
xi, xiii (1995) (referring to a priori review as a European practice).
62. See Katyal, supra note 31, at 180001.
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behavior.63 Abstract review thus may still occur indirectly in countries that do not expressly recognize it. Indeed, all forms of judicial
review involve some blend of abstract and concrete review.64 With
this background, the Article turns to its focus on the formal recognition of advisory jurisdiction in African countries.
III.
THE ADVISORY JURISDICTION OF CONSTITUTIONAL

ADJUDICATORS IN SUB-SAHARA AFRICA
Written constitutionalism in Africa is an essentially post-independence or post-colonial phenomenon.65 The concept of constitutional review, which has its origins in the idea of constitutionalism,
became prominent only after the constitutional revolutions that
were triggered by the third wave of democratization in the
1990s.66 Following the Cold War, countries around the world,
including in Africa, embarked on writing and rewriting their constitutions based on liberalist ideas.67 In addition to the introduction of multiparty politics and guarantees of fundamental human
rights, the recognition of constitutional review represented an
institutional convergence in the newly adopted constitutions.68
However, as in other parts of the world, the institutional form
and procedural aspects of constitutional review vary across borders.
While some countries empowered only one court or council to
decide on the constitutionality of laws (centralized constitutional
review systems), others allowed courts of different levels to review
laws for constitutionality (diffused review system).69 While some
63. Id.
64. See ALEC STONE SWEET & MARTIN SHAPIRO, Abstract and Concrete Review in the United
States, in ON LAW, POLITICS, AND JUDICIALIZATION 343, 347 (2006); Alec Stone Sweet, Why
Europe Rejected American Judicial Review: And Why it May Not Matter, 101 MICH. L. REV. 2744,
277071 (2003).
65. However, there were also colonial constitutions whose principal function . . . was
domination of the colony and the warding-off of imperial rivals. Yash Ghai, A Journey
Around Constitutions: Reflections on Contemporary Constitutions, 122 S. AFR. L.J. 804, 808
(2005).
66. The constitutional and democratic reforms of the 1990s in Africa and beyond
represented what Samuel Huntington referred to as the third wave of democratization.
SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CENTURY 21, 25 (1991). For a discussion of the different phases of constitutionalization in
Africa, see Ghai, supra note 65, at 814.
67. See HUNTINGTON, supra note 66, at 21; see also Yuhniwo Ngenge, International Influences and the Design of Judicial Review Institutions in Francophone Africa, 61 AM. J. COMP. L. 433,
434 (2013).
68. For the expansion of judicial review, see Ginsburg & Versteeg, supra note 2, at 1.
69. E.g., CONSTITUTION DE LA REPUBLIQUE

DU BENIN Dec. 11, 1990, art. 114 (establishing the centralized constitutional review system); CONSTITUTION, arts. 23(1), 165(3) (2010)
(Kenya) (adopting the decentralized constitutional review system).
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recognized abstract review procedures, whereby laws and government decisions may be challenged in the absence of concrete facts,
others only recognized concrete review procedures.70 While some
only recognized a priori review, where a bill may be challenged
before its final promulgation, others recognized a posteriori review
where laws may only be challenged once they have taken effect.71
These variations are not mutually exclusive, however, since some
countries recognize abstract, concrete, a priori, and a posteriori
review procedures.72 Other variations across African states include
appointment procedures, term-limits of constitutional adjudicators, and the scope of their material jurisdiction.73
A cursory look at post-independence African constitutions
reveals that Francophone African countries mainly recognize
abstract constitutional review due to the influence of the French
and European constitutional review systems.74 However, following
the fall of the Berlin Wall and the democratic and constitutional
transformations that inundated Africa, some Anglophone African
countries recognized a limited jurisdiction of their constitutional
adjudicators to issue abstract or advisory opinions.75 This Article
tracks an increasing convergence of the inclusion of abstract review
in all legal systems and linguistic groups in Africa.
A.
The Advisory Jurisdiction in Francophone African Countries
One of the landmark features of most constitutions adopted in

Francophone Africa after the third wave of democratization is the
establishment of constitutional review systems.76 Although the
French system influenced the institutional designs for constitutional review, Francophone African countries have also borrowed
some features of the more evolved European systems of review.77
70. See, e.g., CONSTITUTION OF BOTSWANA Sept. 30, 1966, art. 18(1) (explaining that
only an individual who can show that his right is, has been, or is likely to be contravened in
relation to him may submit cases to the courts).
DU BENIN Dec. 11, 1990, art. 121 (estab71. See, e.g., CONSTITUTION DE LA REPUBLIQUE
lishing procedures to challenge bills before the president has signed them into law).
DU BENIN Dec. 11, 1990, arts. 117, 122

72. See, e.g., CONSTITUTION DE LA REPUBLIQUE
(recognizing abstract and concrete review as well as a priori and a posteriori review).
73. For instance, judges of the 1996 Constitutional Court of South Africa are
appointed by the president and serve for a non-renewable term of twelve years. S. AFR.
CONST., 1996, 176(1). Under the 2010 Constitution of Kenya, the Chief Justice and Deputy Chief Justice are appointed by the president with the approval of the National Assembly
and must retire at the age of 70. CONSTITUTION, art. 167(1) (2010) (Kenya).
74. See Ngenge, supra note 67, at 433.
75. See infra Part III.C for discussions on South Africa and Kenya.
76. See Ngenge, supra note 67, at 433.
77. Id. at 433, 445.
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Hence, most Francophone African countries have established constitutional courts with broader competence and accessibility than
their French counterpart.78 This Section discusses abstract review
in three selected Francophone African states, namely, Benin, Cameroon, and the Democratic Republic of Congo (DRC). Benin is
selected because of the relative success of the constitutional review
system. Cameroon is selected for the opposite reason: the absolute
failure of the constitutional review system. The DRC represents
the new genre of Francophone African constitutions.
1.
Benin
The 1990 Constitution of Benin establishes a presidential form

of government with a unicameral parliament.79 It also establishes a
Constitutional Court with the power to review the constitutionality
of laws and other measures.80 The court has been perhaps the
most active constitutional adjudicator in Francophone Africa.81
The Constitutional Court has broader competence and wider
accessibility than most constitutional adjudicators around the
world.82 It is composed of seven members: three appointed by the
president of the republic and four appointed by the National
Assembly.83 The members are appointed for a five-year term.84 No
member is allowed to serve for more than ten years.85 The Court
has the jurisdiction to review in the abstract the constitutionality of
laws and other measures.86 The Court is also authorized to rule on
the constitutionality of treaties and international agreements.87 It
is further empowered to arbitrate disputes between different institutions of the state, and the validity of presidential and legislative
elections.88 All decisions of the Constitutional Court are binding.89
78. Id.
79. CONSTITUTION DE LA REPUBLIQUE

DU BENIN Dec. 11, 1990, arts. 4142 (1990).
80. Id. art. 114.
81. See Anna Rotman, Benins Constitutional Court: An Institutional Model for Guaranteeing Human Rights, 17 HARV. HUM. RTS. J. 281, 281, 295 (2004) (observing that Benins
Constitutional Court combines the functions of a state sponsored human rights institution
with the prestige and institutional gravitas of a constitutional court).
82. See id. at 281, 28788.

DU BENIN Dec. 11, 1990, art. 115 (1990).
84. Id.
85. Id.
86. See id. art. 117.
87. Id. art. 146.
88. Id. art. 117.
89. Id. art. 124 (A provision declared unconstitutional may not be promulgated or
enforced.).
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The Constitutional Court has wide abstract review powers to

determine the constitutionality of any law before its promulgation
if requested by the president or any member of the National
Assembly.90 The Court is also empowered to review the constitutionality of any law or regulation that allegedly violates human
rights at the direct request of citizens, non-governmental organizations, associations, and the president of the republic.91 The Court
also has the jurisdiction to review the constitutionality of laws and
government decisions in concrete cases; individuals whose rights
have been, or are under the threat of being, violated by any government measure can submit their complaints to the Constitutional
Court.92
In addition to this direct access to the Constitutional Court, individuals also have indirect access to constitutional justice through
the exception of unconstitutionality.93 This process allows parties to a court case to challenge the constitutionality of a law in the
context of the pending case.94 In such cases, the court hearing the
case is required to refer the constitutional issue to the Constitutional Court and stay the proceedings until a decision has been
rendered.95 The Constitutional Court may also act on its own
motion to determine the constitutionality of laws and regulations
presumed to infringe on fundamental human rights, making it one
of the few constitutional courts in Africa authorized to initiate
cases on its own motion.96
The Constitutional Court also has a potential role in resolving
political deadlock between the president of the republic and the
National Assembly. The president is required to sign bills into law
within fifteen days of their passage by Parliament.97 In cases where
90. Id. art. 121. All organic laws (Article 97) and certain other laws listed in Article
123 must be referred to the Constitutional Court to be certified for compatibility with the
constitution before their promulgation. Id. art. 123. Note that there are no minimum
requirements for members of the National Assembly to challenge laws before their promulgation. Id. art. 121. Even one member can refer a bill to the Court. Id.
91. Id. arts. 3, 122; Loi 91-009 du 4 mars 1991 Loi Organique sur la Cour Constitutionnelle [Law 91-009 of March 4, 1991 Organic Law of the Constitutional Court], art. 22
(Benin), available at http://www.cour-constitutionnelle-benin.org/lacourtf/02/index
.html.
DU BENIN Dec. 11, 1990, arts. 3, 122 (1990).

These instances represent the concrete jurisdiction of the Court. Id.
93. Id. art. 122.
94. See id.
95. Id.
96. See id. art. 121. Note that the Courts jurisdiction in this regard is limited to laws
and regulations that violate fundamental rights and does not extend to all laws. Id.
97. Id. art. 57.
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the president refuses to sign a bill into law, the president must
request a second parliamentary deliberation.98 If, after the second
deliberation, the president still refuses to sign the bill into law, the
president of the National Assembly should refer the bill to the Constitutional Court.99 If the Constitutional Court decides that the bill
is compatible with the Constitution, the bill becomes law and takes
effect.100 The failure of the president to sign a bill into law within
the fifteen-day period is considered a refusal.101 The president of
the National Assembly should therefore refer bills that have not
been signed within the prescribed period to the Constitutional
Court.102 This involvement of the Constitutional Court in resolving potential disputes between the president and the legislature
helps to timely settle political standoff.
Although it exercises extensive abstract review functions, the
Constitutional Court of Benin does not have purely advisory functions, with that role held by the Supreme Court of Benin. The
Constitution of Benin requires the Supreme Court to give legal
opinions to the government on administrative and judicial matters.103 The advisory jurisdiction of the Supreme Court is not discretionary.104 As such, the Court cannot refuse to render its
opinions whenever requested by the government.105 The Cabinet,
headed by the president of the republic, may request that the
Supreme Court draft or modify any legislative or regulatory texts
before their examination by the National Assembly.106 In one case,
the Supreme Court advised the government on whether a proposed bilateral agreement between Benin and the United States,
which would oblige Benin not to surrender U.S. nationals to the
International Criminal Court, was compatible with Benins obligations under the constitution and the Statute of the International
Criminal Court.107 The Court concluded that the Government
98. See id.
99. See id.
100. Id.
101. Id.
102. Id.
103. Id. art. 132.
104. Id. Note the use of the word shall.
105. Id.
106. Id. arts. 105, 132.
107. For a discussion of this advisory opinion, see Benin, Legal Opinion, Case No 029-C,
ILDC 844 (BJ 2003), 25th July 2003, Benin [bj], OXFORD REP. ON INTL L, http://www.oxford
lawreports.com/subscriber_article?script=yes&id=/oril/Cases/law-ildc844bj03&recno=4&
searchType=Quick&query=benin (last visited Oct. 9, 2013).
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cannot sign the proposed bilateral agreement, as it would be contrary to the obligations of Benin under the Rome Statute.108
The constitution does not explicitly define the legal status of the
reasoned opinions of the Supreme Court. And it is not clear
whether the comments of the Supreme Court are binding on the
government. It is generally understood, however, that the views of
the Supreme Court are merely advisory.109 Nevertheless, the wordings of the opinions of the Supreme Court (e.g., cannot in the
aforementioned case110) may indicate that the Supreme Court
hopes the government will generally implement its opinions. In
addition, the Constitutional Court, if challenged subsequently, will
likely invalidate decisions of the government adopted in disregard
of the opinion of the Supreme Court. This possibility can
encourage the government to take seriously the opinions of the
Supreme Court. For instance, in rejecting the U.S. treaty, the government declined to sign the bilateral agreement with the United
States.111
2.
Cameroon
The 1996 Constitution of Cameroon establishes a presidential

form of government with a bicameral legislature.112 It constitutes a
decentralized unitary state.113 The constitution establishes a Constitutional Council composed of eleven members appointed for a
nine-year term.114 Three members are appointed by the president
of the republic, three by the president of the National Assembly,
three by the president of the Senate, and two by the Higher Judicial Council.115 Former presidents of Cameroon are ex officio members of the Council.116
The constitutional review system in the 1996 Constitution of
Cameroon mimics the pre-2008 French constitutional review system.117 Under Article 47, the jurisdiction of the Constitutional
Council extends to reviewing the constitutionality of all laws, trea108. Id. para. 45.
109. See id. paras. 56.
110. Id. para. 45.
111. Id.
112. CONSTITUTION OF THE REPUBLIC OF CAMEROON June 2, 1972, arts. 5, 14.
113. Id. art. 1.
114. Id. arts. 4652.
115. Id. art. 51.
116. Id.
117. For a discussion of the constitutional review system in Cameroon, see Charles M.
Fombad, Protecting Constitutional Values in Africa: A Comparison of Botswana and Cameroon, 36
COMP. & INTL L.J. S. AFR. 83 (2003) [hereinafter Fombad, Protecting Constitutional Values in
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ties, international agreements, and other matters. The Council

also has the power to resolve conflicts between state institutions,
between the State and the regions, and between the regions.118
The Council must decide all cases within fifteen days, and when
requested by the president of the republic, within eight days.119
Similar to the pre-2008 French system, the constitutionality of laws,
treaties, and international agreements may only be challenged
before their enactment.120 Also similar to the pre-2008 French system, access to the Constitutional Council is limited to politicians:
only the president of the republic, the president of the National
Assembly, the president of the Senate, one-third of the members of
the National Assembly or the Senate, the presidents of regional
executives whenever the interests of their regions are at stake, or,
in relation to election disputes, the candidates and political parties
participating in elections may submit cases to the Council.121
Largely, the same entities that have supported the passage of laws
have standing, and, as a result, have little incentive to challenge the
constitutionality of such laws. The sustenance of the constitutional
review system therefore depends on supply of cases from minority
political parties in the Senate or the National Assembly, and losing
candidates and political parties in relation to electoral disputes. So
far, minority political parties have never referred constitutional
issues to the Council.122 The Supreme Court, sitting as Constitutional Council, has only decided electoral disputes.123
In addition to its a priori review functions, the Constitution of
Cameroon provides that the Constitutional Council shall advise in
matters falling under its jurisdiction.124 As such, the Constitutional Council not only exercises a priori abstract review, it also has
the mandate to advise state organs on constitutional issues. In
practice, the Government has never sought the advisory function
of the Constitutional Council. Notably, unlike the Constitution of
Benin, which grants the advisory function to the Supreme Court,
Africa]; Charles M. Fombad, The New Cameroonian Constitutional Council in a Comparative

Perspective: Progress or Retrogression?, 42 J. AFR. L. 172 (1998).
118. CONSTITUTION OF THE REPUBLIC OF CAMEROON June 2, 1972, art. 47.
119. Id. art. 49.
120. Id. art. 47(3).
121. Id. art. 47(2).
122. Fombad, Protecting Constitutional Values in Africa, supra note 117, at 101.
123. Id. at 102.
124. CONSTITUTION OF THE REPUBLIC OF CAMEROON June 2, 1972, art. 47(4).
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the Constitution of Cameroon merges the a priori review and advisory functions of the Constitutional Council.125
Despite the adoption of two laws to enact the Constitutional
Council in 2004, the Council has yet to be officially established.
Pending its establishment, the Supreme Court of Cameron currently exercises the powers of the Council.126 In general, for reasons beyond the scope of this Article, the constitutional review
system has not played any visible role in constraining government
power.127 Interestingly, the constitutional review system in Cameroon has not evolved despite the significant changes in France following the 2008 constitutional amendments.128 Consequently,
Cameroon is stuck with a system that has proved to be unworthy of
preserving. The situation in Cameroon symbolizes a troubling African tradition of copying normative and institutional frameworks
without similarly following up on evolutions in the jurisdictions
that served as inspiration.
3.
The Democratic Republic of Congo
In 2003, following the signing of a cease-fire in Pretoria, which

largely halted the violent and widespread civil war in the DRC, a
transitional government was set up.129 As part of the peaceful transition, the transitional government drafted a constitution and successfully held a referendum that led to its adoption in December
2005.130 After years of violent conflicts and fragile constitutional
and legal framework, the Constitution of the DRC took effect in
February 2006.131 The constitution establishes a presidential sys
125. Id. arts. 4647. See CONSTITUTION DE LA REPUBLIQUE
DU BENIN Dec. 11, 1990, art.
132.
126. Malah Anna, Constitutional Protection in Cameroon: A Critique of the Amendment Mechanisms 28 (Mar. 30, 2009) (unpublished LL.M. thesis, Central European University) (on file with the Central European University thesis collection).
127. See Fombad, Protecting Constitutional Values in Africa, supra note 117, at 102.
128. See Pasquino, supra note 30, at 11214 (discussing the changes in France).
129. Mbata B. Mangu, The Conflict in the Democratic Republic of Congo and the Protection of
Right Under the African Charter, 3 AFR. HUM. RTS. L.J. 235, 255 (2003). The Pretoria Accord
was signed in July 2002. Id. The transitional constitution, which established the transitional government, was signed into law by President Joseph Kabila in April of 2003. Id.
130. Dieudonne Tshiyoyo, The Constitutional Referendum in the Democratic Republic of
Congo, SWISS FED. INST. TECH. ZURICH, available at http://mercury.ethz.ch/serviceengine/
Files/ISN/104117/ichaptersection_singledocument/1f1b45df-1727-4f0f-a292-d4ac861213
09/en/Chapter5.pdf (last accessed Oct. 10, 2013). The constitution was adopted by the
National Assembly on May 13, 2005, and approved by the Congolese people through the
referendum of December 18 and 19, 2005. Id. It entered into force in February 2006. Id.
DEMOCRATIQUE DU CONGO Feb. 18, 2006.

131. CONSTITUTION DE LA REPUBLIC
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tem of government with a bicameral legislature.132 It creates a

decentralized government structure where power is divided
between the central government and autonomous provinces.133
Notably, the constitution establishes a powerful and accessible
Constitutional Court.134 The Court consists of nine members who
are elected for a non-renewable nine-year term.135 The president
of the republic, Parliament, and the High Council of the Judiciary
each appoint three members of the Court.136 The constitution
charges the Court with determining the constitutionality of all laws
and government decisions.137 Moreover, the Court adjudicates
conflicts between the executive and legislative organs as well as
between the central government and the provinces, and determines the validity of presidential and parliamentary elections.138
The Constitutional Court has jurisdiction to review the constitutionality of laws before and after their final promulgation.139 All
organic laws and the internal regulations of the National Assembly,
the Senate, the joint Chambers (the Congress), the Independent
National Electoral Commission, and the High Council for Audiovisual Media must mandatorily be submitted to the Constitutional
Court for certification prior to their application.140 A priori review
is mandatory in relation to these laws.141 In addition, the president
of the republic, the prime minister, the president of the National
Assembly, the president of the Senate, or one-tenth of the Deputies
or Senators may refer statutes before their final promulgation to
the Constitutional Court with a request to ascertain or challenge
their constitutionality.142 Similarly, the president of the republic,
the Government, and one-tenth of the Deputies or Senators may
refer international treaties or agreements to the Constitutional
Court.143 In cases where the Court declares that an international
132. Id. arts. 70, 100.
133. Id. art. 2.
134. Id. art. 157.
135. Id. art. 158.
136. Id. Two-thirds of the nine members should be lawyers from the ranks of judges or
prosecutors, from the Bar, or from university education. Id.
137. Id. art. 160. See id. arts. 120, 124, 139.
138. Id. art. 161. Although the DRC is not officially a federal state, it reflects a high
level of decentralization. The DRC consists of the city of Kinshasa and twenty-five provinces. Id. art. 2. The constitution divides government powers between the central government and the provinces. See id.
139. Id. arts. 139, 160.
140. Id. art. 160.
141. Id.
142. Id.
143. Id. art. 216.
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treaty or agreement includes a clause contrary to the constitution,

its ratification or approval may only take place after a revision to
the constitution.144 In all cases of a priori review, the Constitutional
Court must decide within a period of one month, and in cases of
urgency as requested by the government, within eight days.145
The Constitutional Court also receives and examines applications for constitutional interpretation upon the request of the
president of the republic, the Cabinet, the president of the Senate,
the president of the National Assembly, one-tenth of the members
of each parliamentary chamber, the Provincial Governors, and the
presidents of the provincial assemblies.146 This provision broadly
recognizes the advisory jurisdiction of the Constitutional Court on
any constitutional issue. The request for constitutional interpretation may relate to the constitutional implications of any government proposal.147 There is thus no limit to what may be the subject
of constitutional interpretation.
In addition to resolving disputes submitted to it by political
organs, the Constitutional Court can receive cases from individuals
and non-state actors.148 Anyone may challenge the constitutionality of laws and other regulatory measures.149 In such cases, individuals need not demonstrate any interest in their applications.150
The provision impliedly recognizes the public interest in ensuring
statutory compliance with constitutional requirements. In addition
to the procedures for direct access, individuals may challenge the
constitutionality of laws and government decisions in relation to
matters affecting their interest in the context of judicial proceedings.151 Whenever one of the parties to the proceedings contests
the constitutionality of applicable laws in a judicial proceeding, the
court must stay proceedings and refer the contested constitutional
matter to the Constitutional Court.152 If a party raises a constitutional objection before a lower court, the court must refer the constitutional matter to the Constitutional Court.153 The lower court
does not have discretion in that regard.154
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
Id.
Id. art. 160.
Id. art. 161.
Id.
Id. art. 162.
Id.
Id.
Id.
Id.
Id.
Id.
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75
Despite the fact that the Constitutional Court enjoys broad powers and accessibility, it has not yet been established. Pending its
formal establishment, the Supreme Court exercises the powers of
the Constitutional Court.155
B.
The Advisory Jurisdiction in Lusophone African Countries
Both Francophone and Lusophone African countries have

inherited the continental European civil law legal system. Just like
their Francophone counterparts, constitutions in Lusophone African countries have established centralized review systems. For
instance, the 2004 Constitution of Mozambique establishes a Constitutional Council with exclusive powers to review the constitutionality of laws and other measures.156 Similarly, the 2010
Constitution of Angola establishes a Constitutional Court with
exclusive constitutional review powers.157 As discussed below, both
constitutional adjudicators exercise significant abstract review powers. In practice, both courts have had opportunities to invoke their
abstract review powers.
1.
Mozambique
The 1990 Constitution first introduced multiparty democracy to

Mozambican politics.158 The constitution, enacted as part of the
deal to end a sixteen-year protracted civil war that erupted two
years after the culmination of the war of independence, signified
the formal transition from the one-party state to the beginning of a
new era of democracy unknown in Mozambique. In 2004, a new
constitution replaced the 1990 Constitution.159 The new constitution endorses the rule of law as a fundamental principle and
expands considerably the catalogue of fundamental rights.160 It
establishes a presidential form of government with a unicameral
parliament, and vests judicial powers in the courts and the Constitutional Council.161
The 2004 Constitution grants the power of reviewing the constitutionality of laws and government decisions to the Constitutional
155. Id. art. 223.
DA REPUBLICA
DE MOCAMBIQUE
[CONSTITUTION] Nov. 16, 2004, art.

156. CONSTITUIC AO
241 (Mozam.).
DA REPUBLICA
DE ANGOLA [CONSTITUTION] Feb. 5, 2010, art.
157. CONSTITUIC AO
180(2)(f), 180(3).
DA REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004, arts. 1, 6 (Mozam.).

158. CONSTITUIC AO
DA REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004 (Mozam.).

159. See CONSTITUIC AO
160. See id. art. 4, tit. III.
161. Id. arts. 147, 223, 241, 244.
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Council consisting of seven permanent members.162 The main

function of the Council is to evaluate and declare the unconstitutionality of laws and the illegality of normative acts of State
offices.163 The Council also settles conflicts of jurisdiction
between sovereign public offices and between the semi-autonomous provinces and the central government.164 The Council
mainly exercises a posteriori abstract review in relation to all laws
that are in force.165 The president of the republic, the president of
the Assembly of the republic, at least one-third of the deputies of
the Assembly, the prime minister, the attorney general, the
Ombudsman, or two thousand citizens may submit a request for an
abstract review of laws to the Council.166 The review of laws on the
application of any of the listed entities is done in the abstract and
regardless of the existence of a concrete controversy on the constitutionality of the law in question. The Constitutional Council has
invalidated some laws through the a posteriori review procedure.
For instance, upon referral of the attorney general, the Council
reaffirmed its previous decisions that laws allowing the detention of
individuals upon the order of the Ministry of Interior were incompatible with the constitutional right to security and liberty, and the
need to obtain judicial approval before the detention or remand of
individuals.167
Direct individual access to the Constitutional Council is very limited because the constitution requires a joint complaint by at least
two thousand citizens to institute action.168 However, the constitution anticipates procedures whereby individuals may indirectly
access the Constitutional Council. All courts are required to refuse
162. Id. arts. 241, 242.
163. Id. art. 244.
164. See id. (providing a full list of the functions of the Constitutional Council, including those related to elections).
165. Id. art. 245(1).
166. Id. art. 245.
167. Conselho Constitucional [Constitutional Counsel] Sept. 5, 2012, Acord
ao [Judgment] N. 4/CC/2012, http://www.cconstitucional.org.mz/Jurisprudencia/4CC2012, 6
(Mozam.). Groups of members of the National Assembly have also challenged the constitutionality of some laws based on Article 245 of the Constitution. See, e.g., Conselho Constitucional [Constitutional Counsel] June 1, 2006, Acord
ao [Judgment] N. 01/CC/2006,
http://www.cconstitucional.org.mz/Jurisprudencia/1-CC-2006, 1 (Mozam.).
DA REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004, art. 245(2) (Mozam.).

168. CONSTITUIC AO
There is currently a constitutional reform process underway. There have been proposals
to convert the Council into a full-fledged Constitutional Court. There have also been suggestions to expand direct individual access to the Council. It is likely that the 2000 individual signatures requirement will be lowered.
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to apply unconstitutional norms.169 A court that refuses to apply a

law should refer the constitutional issue to the Council for final
determination.170 The Council has received some referrals and
invalidated some laws upon judicial referral. For instance, the
Council found a law that mandatorily required labor disputes to be
first submitted to mediation or conciliation incompatible with the
right to access to justice and courts.171 Indirect access is limited
because courts should only refer laws that they have refused to
apply on grounds of unconstitutionality.172 Parties to a case should
therefore first convince courts that a law is unconstitutional.
Courts may also refuse to apply a law on their own motion if they
are convinced that the law is unconstitutional.173 Mere doubts as
to the constitutionality of a law do not suffice. In cases where a
court rejects claims of unconstitutionality and applies a law, the
parties may challenge the views of that court through the normal
appeal procedure.174 Ordinary courts therefore serve as true filters
for constitutional issues.
The constitution also anticipates limited a priori abstract review.
If the president of the republic has doubts about the constitutionality of a bill, the president may refer the bill to the Constitutional
Council.175 If the Council rules that the bill or part of it is unconstitutional, the president is required to veto the bill and refer it to
the Assembly.176 If the Council finds that the bill is constitutionally
sound, the president should sign it into law within thirty days.177
For instance, in January 2010, the president referred proposed
amendments to the Law on Games of Chance, which eased restrictions on gambling, after the National Assembly adopted the bill.178
169. See CONSTITUIC AO

DA REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004, art. 247

(Mozam.).
170. Id.
171. Conselho Constitucional [Constitutional Counsel] Oct. 7, 2011, Acord
ao [Judgment] N. 03/CC/2011, http://www.cconstitucional.org.mz/Jurisprudencia/3-CC-2011, 1
(Mozam.).
DA REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004, arts. 245, 247

172. CONSTITUIC AO
(Mozam.).
173. See id. art. 247.
174. See id.
175. Id. arts. 163, 246.
176. Id. art. 246(5).
177. Id. art. 163, 246(4).
178. Conselho Constitucional [Constitutional Counsel] Jan. 6, 2010, Acord
ao [Judgment] N. 01/CC/2010, http://www.cconstitucional.org.mz/Jurisprudencia/01-CC-2010,
1 (Mozam.). Similarly, the president of the republic referred the Law Establishing the
National Human Rights Commission. The Council found that parts of the law were unconstitutional. Conselho Constitucional [Constitutional Counsel] Mar. 17, 2009, Acord
ao
78
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The Council ruled that the law did not violate any constitutional
provision.179 The a priori review procedure helps to ensure that
doubts about the constitutionality of bills that otherwise have the
support of the legislative majority are removed before they come
into effect. Indeed, the president referred the amendments to the
Law on Games of Chance despite the fact that the National Assembly unanimously adopted it in June 2009. Additionally, the a priori
review procedure is important to timely resolve political deadlock.
In cases where the Assembly and the president do not agree on the
constitutionality of a law, constitutional interpretations of the
Council will end the deadlock.
2.
Angola
The 2010 Constitution of Angola, which replaced the 1992 Constitution, establishes a unitary state with a single parliament, and
combines features of presidential and parliamentary forms of government.180 The President, who serves as the head of state and
government, is not directly elected, but rather is the leader of the
party or coalition of parties that has won the majority of parliamentary seats.181 The National Assembly, the organ that selects the
President, is composed of members elected according to the proportional electoral system.182
The Constitution establishes a Constitutional Court with a priori
and a posteriori abstract review powers.183 The Court has eleven
members appointed for a non-renewable term of seven years.184
The president of the republic appoints four of the members; a twothirds majority vote of the National Assembly appoints four more;
the Supreme Judicial Council appoints two, and one is appointed
on a competitive basis.185 Decisions of the Constitutional Court are
binding and final.186 However, nothing prohibits the Court from
clarifying, reviewing, or reversing its own decisions.
[Judgment] N. 04/CC/2009, http://www.cconstitucional.org.mz/Jurisprudencia/4-CC2009, 1 (Mozam.).
179. Conselho Constitucional [Constitutional Counsel] Jan. 6, 2010, Acord
ao [Judgment] N. 01/CC/2010, http://www.cconstitucional.org.mz/Jurisprudencia/01-CC-2010,
16 (Mozam.).
DA REPUBLICA
DE ANGOLA Feb. 5, 2010, arts. 8, 106.
180. CONSTITUIC AO
181. Id. art. 109.
182. Id. art. 143(2).
183. Id. art. 180(1); 180(2)(a)(d).
184. Id. art. 180(2)(f), 180(3).
185. Id. art. 180(2)(f).
186. Id. arts. 229, 231.
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The Constitutional Court has exclusive jurisdiction to decide on

the constitutionality of all laws, international treaties and agreements, and other state acts.187 The Court also has jurisdiction over
matters relating to elections and political parties.188 It adjudicates
disputes between the different organs of the state and has the
power to rule on unconstitutionality by omission, that is, the failure to carry out a mandatory obligation imposed by the Constitution.189 Only the president of the republic, one-fifth of the
members of the Assembly, or the attorney general may submit a
request to rule on unconstitutionality by omission.190
The Court exercises a priori review of laws and international
agreements at the referral of the president of the republic or onetenth of the members of the National Assembly.191 The National
Assembly must refer proposed laws or international agreements to
the Court within twenty days of their adoption.192 Such bills may
not be enacted into law if the Constitutional Court finds them
incompatible with the constitution.193 The Court also exercises a
posteriori abstract review. Laws in force may be referred to the
Court by the president of the republic, one-tenth of the members
of the Assembly, parliamentary groups, the attorney general, the
Ombudsman, or the Bar Association of Angola.194 For instance, a
coalition of parties challenged the constitutionality of two presidential decrees that created the Sovereign Oil Fund.195 The parties argued that the establishment of the Fund required
parliamentary approval.196 The Court found that the creation of
the Fund did not exceed the Presidents constitutional and legal
powers.197
The Court also plays a role in resolving political deadlock. The
president of the republic must enact bills into law within thirty days
187. Id. art. 180(1), 180(2)(a)(e).
188. Lei Organica do Processo do Tribunal Constitucional [Organic Law of the Procedure of the Constitutional Court], n. 3/08, art. 63 (June 17, 2008) (Angl.), available at
http://www.tribunalconstitucional.ao/uploads/%7B23ca2e45-c6e0-46fe-9e3e-a6b537eb31
93%7D.pdf.
DA REPUBLICA
DE ANGOLA Feb. 5, 2010, art. 232.
189. CONSTITUIC AO
190. Id.
191. Id. art. 228(1)(2).
192. Id. art. 228(3).
193. Id. art. 229(2).
194. Id. art. 230.
195. Tribunal Constitucional [Constitutional Court] Feb. 6, 2013, Acord
ao [Judgment]
N. 233/2013 (Angl.), available at http://www.tribunalconstitucional.ao/uploads/%7Ba99
c613b-f26a-4fd7-bfff-8be7e82c8dd0%7D.pdf.
196. Id.
197. Id.
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after promulgation by the National Assembly.198 Before the end of

this period, the president may request the Assembly to reconsider
any aspect of the bill.199 If, after reconsideration, a two-thirds
majority of the Assembly approves the bill, the president should
sign it into law.200 Nevertheless, even after a bill has been adopted
by a two-thirds majority vote, the president may still refer the bill to
the Constitutional Court for a priori review of its constitutionality.201 However, the potential political deadlock anticipated by the
constitution is unlikely to arise in practice because the president is
the head of the party, which holds the majority of seats in the
National Assembly.202 In addition to resolving potential political
deadlock, the procedure allows the president to refer controversial
laws with legislative support to the Constitutional Court with a view
to prevent their future invalidation by the Constitutional Court.
The constitution does not establish any procedures through
which individuals may directly challenge laws in the Constitutional
Court. It only recognizes limited indirect individual access to the
Court whereby lower courts may refuse to apply a law at the request
of the parties, or on their own motion, on the ground that the law
is unconstitutional.203 In such cases, the lower court should refer
the constitutional issue concerning the relevant law to the Constitutional Court for final decision.204 The Constitutional Court
increasingly receives cases through judicial referral, particularly
from the Supreme Court.205 In addition, the parties can submit
appeals to the Constitutional Court in cases where a lower court
applies laws whose constitutionality the parties have challenged
during the proceedings.206
Interestingly, the 2010 Constitution confers jurisdiction on the
Constitutional Court to decide on the constitutionality of referendums and constitutional revisions or amendments.207 Under Article 236, the constitution imposes several substantive limits on the
power of constitutional amendment.208 In addition, Article 235
198. CONSTITUIC AO
DA REPUBLICA
DE ANGOLA Feb. 5, 2010, art. 124(1).
199. Id. art. 124(2).
200. Id. art. 124(3).
201. Id. art. 124.
202. Id. art. 109.
203. Id. art. 180(2)(d)(e).
204. See id.
205. See Tribunal Constitucional [Constitutional Court] Feb. 6, 2013, Acord
ao [Judgment] N. 233/2013 (Angl.).
206. CONSTITUIC AO
DA REPUBLICA
DE ANGOLA Feb. 5, 2010, art. 180(2)(e).
207. Id. arts. 227, 234(2).
208. Id. art. 236.
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imposes time limits on the power of constitutional amendment.209

Revisions to the constitution may not be adopted during a state of
siege, war, or emergency.210 The Angolan Constitution therefore
contains significant enforceable limits on the power to revise any
constitutional provisions. No other constitution in Africa permits
the substance of a constitutional amendment to be challenged on
such an extensive level by a wide range of actors.211 Nevertheless,
as it has always been, these constitutional provisions cannot create
a strong court by themselves. The strength and effectiveness of
constitutional review depends on a number of political, economic,
social, and cultural factors, which are beyond the scope of this
Article.212
C.
The Advisory Jurisdiction in Anglophone African Countries
The discussions above and a cursory look at the constitutions of

Francophone and Lusophone African countries reveal common
recognition of abstract review procedures.213 On the other hand,
Anglophone African countries historically tend to limit the jurisdiction of their constitutional adjudicators to concrete cases.214 Nevertheless, some Anglophone African countries, such as Kenya,
expressly recognize the advisory jurisdiction of their constitutional
adjudicators.215 In addition, the recognition of litigation in the
public interest in many countries, such as South Africa, has opened
vistas of opportunities for abstract review.216 What follows is a discussion of the abstract review powers of constitutional adjudicators
in South Africa and Kenya. South Africa was chosen because of the
rich experiences of the Constitutional Court,217 while Kenya was
chosen because its constitution explicitly recognizes the advisory
jurisdiction of the Supreme Court.
209. Id. art. 235.
210. Id. art. 237.
211. See, e.g., Attorney General v. Mtikila, at *42, 48 (Ct. App. June 17, 2010) (Tanz.)
(ruling that it did not have the power to review the constitutionality of constitutional
amendments).
212. See generally CHARLES EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND
SUPREME COURTS IN COMPARATIVE PERSPECTIVE 23 (1998) (discussing factors that affect the
courts effectiveness in protecting human rights in the United States, India, Britain, and
Canada).
213. Ngenge, supra note 67, at 44142.
214. See id. at 449; Aust, supra note 8, at 124.
215. E.g., CONSTITUTION, art. 163(6) (2010) (Kenya).
216. See, e.g., S. AFR. CONST., 1996, 38(d).
217. To access the decisions of the Constitutional Court, see Constitutional Court of
South Africa, CONST. CT. S. AFR., http://www.constitutionalcourt.org.za/site/home.htm
(last visited Oct. 11, 2013).
R
R
82
1.
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South Africa
The South African Constitution establishes a bicameral parliament and a system of government combining features of presidential and parliamentary regime types.218 The people do not directly
elect the president of the republic, but rather the president is
elected from among the members of the National Assembly.219 In
practice, the leader of the political party with the majority of the
seats in the Assembly is elected president.220 Although it does not
use the word federalism, the constitution structures the state into a
federal form of government with autonomous provinces.221 The
constitution establishes an eleven-member Constitutional Court to
ensure the supremacy of the constitution.222 The Court has extensive concrete review powers and exercises limited a priori abstract
review.223
The constitution anticipates limited instances where the Constitutional Court may exercise a priori abstract review.224 The president of the republic must sign all bills adopted by the South
African Parliament before they take effect.225 In cases where the
president has concerns about the constitutionality of part or all of a
bill adopted by Parliament, the president may refer the law back to
Parliament for reconsideration.226 If the president is still unconvinced after the adjustments made by Parliament, the president
may refer the bill to the Constitutional Court.227 If the Constitutional Court rules that the bill complies with the constitution, the
president must sign it into law.228 This provision was first relied on
218. S. AFR. CONST., 1996, 42, 86.
219. Id. 86.
220. The three democratic presidents so farNelson Mandela, Thabo Mbeki, and
Jacob Zumawere all leaders of the ruling party, African National Congress (ANC), when
they were elected President. See Bill Keller, Mandela Is Named President, Closing the Era of
Apartheid, N.Y. TIMES (May 10, 1994), http://www.nytimes.com/1994/05/10/world/
mandela-is-named-president-closing-the-era-of-apartheid.html; Suzanne Daley, June 612,
African National Congress Seals an Election Victory, N.Y. TIMES (June 13, 1999), http://www.ny
times.com/1999/06/13/weekinreview/june-6-12-african-national-congress-seals-an-election-victory.html; Barry Bearak, Governing Party Claims Victory in South Africa, N.Y. TIMES
(Apr. 24, 2009), http://www.nytimes.com/2009/04/25/world/africa/25safrica.html.
221. Adem Kassie Abebe, Umpiring Federalism in Africa: Institutional Mosaic and Innovations, 13 AFR. STUD. Q. 53, 54 (2013).
222. S. AFR. CONST., 1996, 166(a), 167.
223. Id. 167.
224. Id. 121(2)(b).
225. Id. 74(9).
226. Id. 79(1).
227. Id. 79(4).
228. Id. 79(5).
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83
when President Nelson Mandela referred the 1998 Liquor Bill to

the National Assembly to reconsider some parts of the bill.229
When the Assembly readopted the bill without modification, the
president referred the bill to the Constitutional Court.230
The a priori review procedure enables the president to clarify
doubts regarding the constitutional validity of controversial law. In
addition, the procedure allows the president to refer bills that the
president opposes. In such cases, the procedure provides a means
to resolve potential political deadlock. Nevertheless, given the fact
that the political party that has the majority of seats in the National
Assembly elects the president,231 the possibility of deadlock is
minimal.
Outside of a Presidential referral, the Constitutional Court does
not have the power to consider the constitutionality of laws before
their promulgation. The narrow tailoring of the a priori review procedure suggests that the drafters of the constitution were weary of
the potentially disruptive consequences of involving the Constitutional Court before the final enactment of laws. However, the Constitutional Court has held that, although the Court will not
ordinarily intervene in the legislative process, there may be exceptional circumstances that warrant judicial intervention even before
the legislative process concludes, such as when an applicant can
demonstrate material and irreversible harm in the sense that no
effective remedy would be available once the legislative process is
complete.232 There are thus limited possibilities where individuals
and entities other than the president may be allowed to challenge
proposed laws before their enactment. Hence, although very narrow, the exception creates additional possibilities for the Constitutional Court to engage in a priori review.
The constitution also recognizes a posteriori abstract review,
where the Constitutional Court may rule on the constitutionality of
laws in the abstract immediately after their enactment.233 Under
Section 80, at least one-third of the members of the National
Assembly is needed to refer an act of Parliament, signed into law by
229. In re Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC), paras. 12 (S.
Afr.).
230. Id.
231. S. AFR. CONST., 1996, 86.
232. Glenister v. President of the Republic of South Africa 2009 (1) SA 287 (CC), para.
44 (2008) (S. Afr.); see also Doctors for Life Intl v. Speaker of the National Assembly 2006
(6) SA 416 (CC), para. 69 (S. Afr.) (holding that intervention will only occur in exceptional cases where irreversible harm will come from inaction).
233. S. AFR. CONST., 1996, 80, 122.
84
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the President, to the Constitutional Court.234 Unlike in

Francophone African countries where there is no time limit, the
request for a posteriori review of laws in South Africa must be made
within thirty days of the presidents assent.235 The constitution also
allows a posteriori abstract review of provincial laws.236 Under Section 122 of the Constitution, at least twenty percent of the members of a provincial legislature may challenge the constitutionality
of a provincial act.237 They must launch the challenge within one
month of the province premiers signing of the act into law.238 The
application of these two provisions helps ensure that potentially
unconstitutional laws are scrapped before they cause any harm.239
The constitution does not specify the consequence from decisions of the Constitutional Court approving the constitutionality of
laws in the abstract review procedures. It is not clear whether individuals may challenge laws that have been declared constitutional
by the Constitutional Court in the a priori or a posteriori abstract
review procedures. This Article argues that individuals should be
allowed to challenge such laws on their specific facts and circumstances.240 Although the principle of res judicata may preclude complaints against laws that have been the subject of the abstract review
procedure, it only excludes similar future cases between the same
parties.241 Moreover, even if a law is constitutional, there may be
exceptional cases where its application to specific facts and circumstances may be incompatible with the Constitution. In addition,
234. Id.
235. Id. 80(2)(b).
236. Id. 121.
237. Id. 122(2)(a).
238. Id. 122(2)(b).
239. In reality, however, the ANC controls sixty-six percent of the seats in the National
Assembly (after the 2009 elections). Barry Bearak, Final Results Show Resounding Victory for
A.N.C. in South Africa, N.Y. TIMES (Apr. 26, 2009), http://www.nytimes.com/2009/04/26/
world/africa/26SAFRICA.html. As such, it is only when all the opposition parties agree, or
the ANC consents to referral, that the one-third membership requirement can be fulfilled.
This is partly why no law has so far been the subject of a posteriori abstract review at the
referral of members of the Assembly.
240. The Constitutional Court appears to have taken similar views. In In re Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC), para. 20 (S. Afr.), the Court observed
that even if this Court does decide that the Bill is constitutional, supervening constitutional challenges after it has been enacted are not excluded, save to the extent that this
Court has in deciding the questions the President placed before it in the section 79 proceedings already determined them.
241. According to the Oxford Dictionaries, res judicata refers to a matter that has been
adjudicated by a competent court and therefore may not be pursued further by the same
parties. See Definition of Res Judicata in English, OXFORD DICTIONARIES, http://oxforddic
tionaries.com/definition/english/res-judicata (last visited Oct. 11, 2013).
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the Constitutional Court should have the power to review the constitutionality of laws approved in the abstract review procedure
based on grounds not considered in the review process.242
Given the wide access to challenge laws once they have been
promulgated, the absence of a priori abstract review does not necessarily imply that potentially unconstitutional laws will cause actual
harm. In addition to the possibility of a posteriori abstract review
discussed in the previous paragraph, individuals and associations
may challenge in the public interest any law immediately after its
enactment, but before its implementation, thereby preventing any
potential harm.243 In particular, the Constitutional Court has
observed that complaints alleging the failure of Parliament to
ensure public participation in the lawmaking process must be
brought timeously.244 In Glenister v. President of the Republic of
South Africa, for instance, the applicant challenged the constitutionality of a law that created a new specialized crime-fighting unit,
the Directorate of Priority Crime Investigation (DPCI), which disbanded the already existing Directorate of Special Operations.245
The applicant had unsuccessfully attempted to prevent the Cabinet
from initiating the Law.246 This first challenge was rejected as premature because there were no exceptional grounds justifying judicial intervention in parliamentary affairs.247 Shortly after the law
was passed, the applicant challenged its constitutionality in the
High Court.248 The High Court dismissed the challenges holding
that only the Constitutional Court may decide that Parliament or
the President has failed to fulfill a constitutional obligation.249
On appeal, the Constitutional Court held that the constitution and
international agreements ratified by South Africa required the
242. In re Constitutionality of the Liquor Bill 2000 (1) SA 732 (CC), para. 20 (S. Afr.).
243. S. AFR. CONST., 1996, 38(d).
244. See Doctors for Life Intl v. Speaker of the National Assembly 2006 (6) SA 416
(CC), para. 69 (S. Afr.); Glenister v. President of the Republic of South Africa 2011 (3) SA
347 (CC), paras. 2628 (stating that failure to submit the application timeously would
have been sufficient to dismiss the challenge because it took the applicants more than a
year and three months to submit the case to the Constitutional Court). The Law was found
to be unconstitutional on other grounds. See infra text accompanying note 250.
245. Glenister, (3) SA 347.
246. Glenister v. President of the Republic of South Africa, 2009 (1) SA 287 (CC),
para. 57.
247. Id.
248. See Glenister v. President of the Republic of South Africa, No 7798/09 (W. Cape
High Ct. Feb. 26, 2010).
249. Id. para. 5. The decision was based on section 167(4)(e), which grants the Constitutional Court exclusive jurisdiction to determine whether Parliament has failed to fulfill a
constitutional obligation.
86
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establishment of a sufficiently independent anti-corruption unit

and that the new law did not adequately secure the independence
of the DCPI.250 This example demonstrates the utility of review
procedures to expunge laws before they cause any real harm.
Section 38(d) of the constitution allows courts to receive applications in the public interest.251 The Constitutional Court may exercise abstract review in the context of public interest litigation.252
For constitutional challenges in the public interest, the Court will
often assess whether a particular law violates the constitution in the
abstract, regardless of its application to any specific set of facts.253
In such cases, the Court considers whether the application of the
law to any set of facts may constitute a violation of one or more
constitutional provisions.254 For instance, in Centre for Child Law v.
Minister for Justice and Constitutional Development and Others, the
applicant challenged the constitutionality of minimum sentencing
rules to the extent they applied to child offenders aged sixteen and
seventeen as contrary to Section 28(2) of the constitution, which
provides that children should not be detained except as a measure
of last resort and only for the shortest appropriate period.255 The
Centre for Child Law did not bring the case on behalf of any particular child victim, but rather on behalf of all children aged sixteen and seventeen threatened by the minimum sentencing
rules.256 As a result, the analysis of the constitutionality of the minimum sentencing rules as applicable to children was necessarily
abstract.257 In general, whenever the Court determines the constitutionality of laws outside the context of specific victims, which is
often the case in constitutional challenges in the public interest,
the analysis is abstract.258
250. Glenister, (3) SA 347, para. 251.
251. S. AFR. CONST., 1996, 38(d).
252. See Ctr. for Child Law v. Minister for Justice and Constitutional Dev. 2009 (6) SA
632 (CC), para. 13 (S. Afr.).
253. Id.
254. Id.
255. Id. para. 2.
256. Id.
257. See id. para. 13 (stating that it may be incumbent on [the Court] to deal with the
substance of a dispute about the constitutionality of legislation a High Court has declared
unconstitutional, even in the absence of a party with proper standing).
258. However, not all cases of public interest litigation involve abstract review. Public
interest litigation may also relate to issues concerning specific facts as long as the issue
affects the interest of the public at large or a segment of it. See id. para. 12 (implying that
the case could have been brought later under specific facts but that [t]o have required the
Centre to augment its standing by waiting for a child to be sentenced under the new provisions would . . . have been an exercise in needless formalism).
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The limited a priori review procedure, the right of one-third of

the members of the National Assembly to challenge laws within
thirty days after their promulgation, and the fact that the constitution allows public interest litigation, create opportunities for challenging laws before they cause actual damage. However, these
procedures cannot help to save the time and resources that are
expended on enacting laws that may later be invalidated as being
unconstitutional. The recognition of advisory jurisdiction not only
prevents harm emanating from the implementation of unconstitutional laws, but also saves legislative time and resources.259 A good
example is the threat of litigation mounted against the proposed
Protection of State Information Bill.260 The main opposition political party, the Democratic Alliance, and non-governmental organizations, in particular the Right2Know Campaign, have called on the
president to refer the bill to the Constitutional Court and
threatened to petition the Court to have it declared unconstitutional.261 The bill, initially tabled for discussion in 2008, was
approved by Parliament and sent for assent to the president in
April 2013.262 An advisory opinion by the Court could have given
the government a clear idea of the most acceptable forms of any
such law.
The Constitutional Court may also review the constitutionality of
constitutional amendments.263 However, the Constitution of South
Africa does not clearly impose any substantive limits on the power
of constitutional amendments. As such, the powers of the Court
are arguably limited to ensuring that the appropriate procedure of
amending specific provisions is followed. The South African Con-
259. Rogers & Vanberg, supra note 18, at 395.

260. South Africa Secrecy Bill Approved by Parliament, BBC NEWS (Apr. 25, 2013, 1:08
PM), http://www.bbc.co.uk/news/world-africa-22298825. The Bill was passed with 189
votes in favor and 74 against, with 1 abstention. Id.
261. Call to Send Info Bill to ConCourt, IOLNEWS (Apr. 26, 2013, 7:55 PM), http://www
.iol.co.za/news/special-features/call-to-send-info-bill-to-concourt-1.1507194.
262. Benon Herbert Oluka, South Africas Parliament Passes Controversial Secrecy Bill, AFR.
REV. (Apr. 26, 2013, 8:02 AM), http://www.africareview.com/News/South+Africa+secrecy+
bill+approved+by+parliament/-/979180/1758714/-/113qxp2z/-/index.html. The president returned the bill to the National Assembly for reconsideration in accordance with
Section 79(1) of the 1996 Constitution. In November 2013, Parliament sent the bill back
to the president, who has yet to sign it at the time of writing this Article. Parliament Sends
Secrecy Bill back to Zuma Again, MAIL & GUARDIAN (Nov. 12, 2013, 5:18 PM), http://mg.co
.za/article/2013-11-12-secrecy-bill-to-be-sent-back-to-zuma-again. The president may alternatively refer the bill to the Constitutional Court in accordance with Section 79(4).
263. S. AFR. CONST., 1996, 167(4)(d).
88
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stitution establishes five different amendment procedures.264 It is

therefore necessary to ensure that the appropriate procedure is followed in relation to all amendments.265 Ascertaining whether the
appropriate procedure has been followed can sometimes require
analyzing the substantive implications of proposed amendments.266
To this extent, the Constitutional Court may engage in scrutinizing
the substantive validity of amendments.
2.
Kenya
The people voted to adopt the Constitution of Kenya in a referendum in 2010.267 Following a deadly post-election violence,
which claimed more than 1,200 lives in 2008, the main political
contenders formed a Coalition Government, which was formed as
a transitional structure to be replaced after elections were held in
2012 under a new constitution.268 Part of the agreement for the
establishment of the Coalition Government was the implementation of a rigorous constitutional reform process, which was
expected to include serious judicial reforms among others.269 The
2010 Constitution establishes a presidential system of government
264. See G.E. Devenish, A Jurisprudential Assessment of the Process of Constitutional Amendment and the Basic Structure Doctrine in South African Constitutional Law, 68 J. CONTEMP.
ROMAN-DUTCH L. 243, 24445 (2005) (discussing the five South African amendment procedures). Devenish suggests that the basic structure doctrine developed by the Indian
Supreme Court may have relevance in South Africa. Id. at 24850. Although the Constitutional Court has had the opportunity, it has not yet ruled on the applicability of doctrine.
See Kwazulu-Natal v. President of the Republic of S. Afr. 1996 (1) SA 769 (CC), para. 47 (S.
Afr.) (It may perhaps be that a purported amendment to the Constitution, following the
formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, might not qualify
as an amendment at all.). See also Exec. Council of the W. Cape Legislature v. President
of the Republic of S. Afr. 1995 (4) SA 877 (CC), para. 204 (S. Afr.) (noting that the constitution does not contain any express limit to the power of Parliament but that practically,
one must be implied); United Democratic Movement v. President of the Republic of S. Afr.
2003 (1) SA 488 (CC), para. 17 (S. Afr.) (explaining that it is not necessary to consider
amendments to the constitution which would destroy the constitution itself).
265. See Andrew J.H. Henderson, Cry, the Beloved Constitution? Constitutional Amendment,
the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1, 114
S. AFR. L.J. 542, 546 (1997) (noting that the process for amending the constitution was
acceptable because it required special procedures).
266. See id. at 55051 (explaining that in order to determine the constitutionality of a
proposed amendment, it is first necessary to forecast its purpose and effects).
267. Jeffrey Gettleman, Kenyans Approve New Constitution, N.Y. TIMES (Aug. 5, 2010),
http://www.nytimes.com/2010/08/06/world/africa/06kenya.html.
268. In-depth: Kenyas Post Election Crisis, IRIN (Jan. 7, 2008), http://www.irinnews.org/
in-depth/76116/68/kenya-s-post-election-crisis; see also Henry Amadi, Kenyas Grand Coalition Government Another Obstacle to Urgent Constitutional Reform?, 44 AFR. SPECTRUM 149,
15354 (2009) (discussing Kenyas Coalition Government).
269. Amadi, supra note 268, at 154.
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89
with a bicameral legislature.270 The constitution also confers significant autonomy on the forty-seven elected counties it establishes.271
Although it cannot be described as a full-fledged federal state,
Kenya now boasts high levels of decentralization of executive and
legislative power.
The 2010 Constitution creates a new powerful Supreme Court
with the final power to determine the constitutionality of laws and
other measures.272 The Supreme Court not only has the power to
rule on concrete constitutional disputes, but also may give advisory
opinions at the request of the national government, any State
organ, or any county government on any matter in county government.273 This provision of the Kenyan Constitution is exceptional
in Anglophone Africa because it explicitly recognizes the advisory
jurisdiction of the Supreme Court.274
The Supreme Court has had the opportunity to expound on the
nature of advisory opinions as well as the circumstances that may
justify exercising the discretionary advisory jurisdiction.275 In one
application, the Interim Independent Electoral Commission
requested the Court determine the implications of the constitution
on the exact date of elections planned for 2013.276 The Court
observed that the purpose of the advisory procedure is to clarify a
doubt and to enable the organ of the state to act in accordance
with the law, and not necessarily to resolve an active dispute.277
Given the constitution uses the word may, the Court held that
the issuance of advisory opinions is purely discretionary.278 The
Court also reiterated that standing to submit requests for an advisory opinion is limited to the entities explicitly listed in Article
163(6).279 As such, only the national government, any state
270. CONSTITUTION, arts. 93, 131 (2010) (Kenya).
271. See id. arts. 183, 18586.
272. See id. art. 163.
273. Id. art. 163(6).
274. Malawis Constitution imposes a right and duty on the president to refer disputes
of a constitutional nature to the High Court. CONSTITUTION OF THE REPUBLIC OF MALAWI,
art. 89(1)(h) (1994). This provision has been interpreted as conferring an advisory jurisdiction on the High Court. See Redson Edward Kapindu, Malawi: Legal System and Research
Resources, GLOBALEX (Jan. 2009), http://www.nyulawglobal.org/globalex/malawi.htm.
275. See, e,g., In re The Matter of the Interim Independent Electoral Commission,
(2011) eK.L.R. para. 93 (C.A.K.) (Kenya) (explaining the role of advisory opinions is to
bring clarity to the law).
276. See id. para. 2.
277. Id. para. 93.
278. Id. para. 34.
279. Id. paras. 35, 83(ii).
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organ, or any county government may submit such a request.280

Individuals and non-state actors do not have the power to invoke
the advisory jurisdiction. The Interim Independent Electoral Commission, however, was found to be a state organ.281 Although
unclear, it will be interesting to see whether members of Parliament may be considered state organs when submitting requests
for advisory opinions.282
In In Re the Matter of the Interim Independent Electoral Commission,
the Supreme Court refused to grant an advisory opinion for two
reasons. First, the issue was the subject of a contentious case pending before the High Court.283 The Court was understandably slow
to provide advisory opinions in relation to issues pending before
lower courts. Issues amenable to ordinary litigation should normally follow the ordinary route in adversarial cases.284 Second, the
Court held as follows that requests for a correct interpretation of
the law will not be admitted for an advisory opinion:
[The Applicant] is to be taken to be seeking the correct interpretation of the said provisions: it is not seeking a plain opinionstatement on the date of the next election. We find, therefore,
that the question placed before us is not a normal one, within
the Advisory-Opinion jurisdiction as envisaged under Article
163(6) of the Constitution.285
The implications of this statement are not entirely clear, given

that the advisory procedure aims to clarify the legal status quo in
relation to a particular issue.286 The distinction between a correct interpretation and an opinion-statement is clumsy at best.
It would have sufficed for the Court to refuse to issue the advisory
opinion because of the pending case in the High Court. Given the
fact that the elections were planned to be held in 2013 while the
request for an advisory opinion was submitted to the Court in 2011,
280. Id.
281. Id. para. 36.
282. As observed in Part III.A, in some Francophone African countries, a particular
number or percentage of parliamentarians are allowed to challenge the constitutionality of
laws before their final promulgation.
283. In re The Matter of the Interim Independent Electoral Commission, (2011)
eK.L.R. para. 47 (C.A.K.) (Kenya).
284. In re the Principle of Gender Representation in the National Assembly and the
Senate, (2012) 2 eK.L.R. paras. 17, 18 (C.A.K.) (Kenya) (observing that questions amenable to ordinary litigation must be prosecuted in the normal manner . . . [and] the Supreme
Court must also guard against improper transformation of normal dispute-issues for ordinary litigation, into Advisory-Opinion causes).
286. See id. para. 33 (defining an advisory opinion as legal advice to a public body
seeking such advice by virtue of the scope created by law).
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the Court could also have cited a lack of urgency in resolving the
legal question presented before the Court as a readymade justification. The provision of quick and appropriate answers to highly
important and urgent constitutional issues is one of the main
advantages of the advisory procedure. Had the election date been
closer or the normal appellate procedure too lengthy, the
Supreme Court could have issued the advisory opinion to avoid the
potential invalidation of an otherwise valid election simply because
it was not held on the constitutionally prescribed day.
The Supreme Court seems to have diverged from the unclear
distinction it attempted to draw between correct answers and
opinion-statements. In the second request for an advisory opinion, the Court held that the basic requirement for admitting an
application for an advisory opinion is that the request seek[s] to
unravel a legal uncertainty in such a manner as to promote the
rule of law and the public interest.287 In that request, the Court
had to determine whether the constitutional requirement that
more than two-thirds of all members of elected and appointed bodies not be from the same sex imposed an immediate duty that
needed to be given effect in the March 2013 elections or whether
this duty was progressive.288 It also had to determine the correct
procedures to follow in relation to disputes concerning presidential elections.289 The Court ruled that the issues were of great
public importance that needed to be resolved in time.290
Indeed, failure to determine both issues could have led to the possible invalidation of the 2013 election outcomes. The Court therefore significantly revised the standard for admitting a request for
an advisory opinion to focus on the public importance and urgency
of resolving constitutional issues, rather than whether the request
was for a correct answer or a mere opinion. This standard comports with the very purpose of establishing the advisory procedure,
namely the timely and authoritative resolution of important and
urgent legal questions.291
Another important issue relates to the limited reading of the
issues subject to advisory opinions, forming the material jurisdiction of the court in the advisory procedure. The Supreme Court
indicated that any request for an advisory opinion should be with
287.
Senate,
288.
289.
290.
291.
In re the Principle of Gender Representation in the National Assembly and the

(2012) 2 eK.L.R. para. 25 (C.A.K.) (Kenya).
Id. para. 1.
Id.
Id. para. 26.
Rogers & Vanberg, supra note 18, at 395.
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respect to any matter concerning county government.292 This

interpretation is unwarranted based on the text of Article 163(6)
and unnecessarily restricts the material jurisdiction of the Supreme
Court. It appears from the text of the constitution that the requirement that the issue should concern county governments only
applies to requests for advisory opinions submitted by county governments, and not to requests submitted by other state organs or
the national government. Article 163(6) provides that [t]he
Supreme Court may give an advisory opinion at the request of the
national government, any State organ, or any county government
with respect to any matter concerning county government.293
There is nothing in this provision suggesting that requests for
advisory opinions from the national government or its organs must
relate to issues concerning county governments. A more plausible interpretation is that requests made by county governments
should be on matters of interest to them alone. The text of the
constitution does not specifically limit the issues that may be
referred by the national government to those relating to the central government because it assumes that the central government is
concerned with all issues, such as issues concerning county governments. It does not make conceptual sense to limit the issues subject to advisory opinions only to issues of relevance to the county
governments, given the fact that legal uncertainties in relation to
issues that do not have relevance to the counties may have serious
consequences to the governance of the nation.
The Supreme Court has broadly interpreted the phrase issues
that concern county governments to include all issues that may
directly or indirectly affect county governments.294 The Court
observed a close connectivity between the functioning of national
government and county government.295 This broad interpretation of the phrase any matter concerning county government has
undermined the potentially restrictive interpretation of Article
163(6).296 Indeed, the issues in the two requests for advisory opinions so farthe exact date of elections and the equitable representation of women in Parliamentwere found to be relevant to
eK.L.R. para. 83(i) (C.A.K.) (Kenya).
293. Id. para. 10 (citing CONSTITUTION, art. 163(6) (2010) (Kenya)).
294. See id. para. 39 (noting the interdependence of functions of national and county
governments and explaining that the constitution provides a unitary, rather than a federal
system of government).
295. Id. para. 40.
296. Id. paras. 3940.
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county governments, although they concern county governments

only indirectly and marginally.297
Nevertheless, the Supreme Court may require state organs to
only request advisory opinions on issues that are of institutional
interest to them.298 Indeed, the Supreme Court Act provides that
the Court may reject a request for an advisory opinion if the applicant does not have or does not represent persons who have an
interest in the opinion.299 This ensures that the Court only issue
advisory opinions when necessary to resolve an urgent legal conundrum faced by the state organ requesting the advice. It also
ensures the proper and competent representation of perspectives
by organs that have interest in and expertise on issues before the
Court.
In conclusion, the decision to issue an advisory opinion should
be given on a case-by-case basis taking into account the public
importance and urgency of the issue. The determination of the
existence of public interest and urgency defies any general rule
and may only be made considering the peculiar circumstances of
individual cases. Moreover, priority should generally be given to
the concrete resolution of constitutional issues. However, the advisory jurisdiction may be invoked even in relation to cases pending
before other courts if it can be demonstrated that the issue is of
great public importance requiring urgent resolution and that
the matter in question would not be amenable to expeditious resolution through adversarial Court process.300
An entity invoking the advisory jurisdiction of the Supreme
Court must first attempt to seek the advice of the attorney general.301 The requirement that the views of the attorney general
should be sought is compatible with the understanding that advisory opinions must only be granted as a last resort and in situations
of urgency. The requirement also ensures that government organs
do not bypass the office of the attorney general whose principal
297. Id. paras. 39, 41; In re the Principle of Gender Representation in the National
Assembly and the Senate, (2012) 2 eK.L.R. para. 20 (C.A.K.) (Kenya).
298. See, e.g., The Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion OC-2/82, Inter-Am. Ct. H.R. (ser. A) No. 2,
para. 14 (Sept. 24, 1982) (explaining that the Inter-American Court on Human Rights
requires that organs of the Organization of American States requesting an advisory opinion should prove legitimate institutional interest in the matter).
299. The Supreme Court Act, (2011) Cap. 7 40(4)(b) (Kenya).
eK.L.R. para. 83(iv) (C.A.K.) (Kenya).
301. The Supreme Court Act, (2011) Cap. 7 40(4)(c) (Kenya).
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role is to provide neutral legal advice.302 As the most authoritative

legal arm of the government, her views can potentially settle legal
disputes.303 Moreover, failure to seek the advice of the attorney
general potentially undermines the urgency of the issues. In the
advisory opinion concerning the date of elections, the Supreme
Court observed that even the Independent Electoral Commission,
which is required to be independent of political organs, should
seek the advice of the attorney general.304
The 2010 Constitution does not explicitly define the legal status
of advisory opinions. However, the Court observed that the
Supreme Courts opinion cannot be on the same plane as that of
law officers from the Attorney-Generals Chambers, or, indeed, of
any other State organs that could appear before this Court pleading for an Advisory Opinion.305 Given the robustness of argument
and the adequate representation of all relevant perspectives in
advisory proceedings, the Court held that the distinction between
advisory and adversarial proceedings should not be overstated.306
Advisory opinions bind all organs other than the Supreme Court,
just like any other decision of the Supreme Court.307 State
organs should therefore consider advisory opinions as authoritative
and binding interpretations of the law.308 This removes any discretion to ignore the views expressed in advisory opinions.
The Court allowed and will allow interested parties as well as amicus curiae to submit written arguments and participate in the oral
hearings.309 Indeed, advisory opinions are rendered in the public
interest and should therefore be open for participation. This practice of the Kenyan Supreme Court should provide a lesson to other
courts in Africa, in particular Francophone Africa, which does not
allow individuals and non-state actors to make amicus curiae submis302. CONSTITUTION, art. 156(4) (2010) (Kenya).
304. Id. para. 61 (observing that [w]hile the applicant after obtaining advice from the
office of the Attorney-General is not necessarily bound by the same, for the purpose of this
Court, the fact that such advice was sought in the first place, will demonstrate the applicants commitment, as well as fidelity to due process).
305. Id. para. 92.
306. Id.
307. Id. para. 94; see also CONSTITUTION, art. 156(4) (2010) (Kenya) (All courts, other
than the Supreme Court, are bound by the decisions of the Supreme Court.).
eK.L.R. para. 93 (C.A.K.) (Kenya) (observing that the binding nature of advisory opinions
is consistent with the values of the Constitution, particularly the rule of law).
309. In re the Matter of the Principle of Gender Representation in the National Assembly and the Senate, (2012) 2 eK.L.R. para. 12 (C.A.K.) (Kenya).
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sions. Allowing amicus curiae ensures that a wide range of perspectives and factual and legal issues will be presented for the benefit of
the court issuing the opinion.310
In addition to issuing advisory opinions, the Kenyan Supreme
Court has the power to review the constitutionality of laws in the
abstract in certain circumstances, in particular in relation to constitutional challenges in the public interest.311 As discussed in the
context of South Africa, public interest litigants do not necessarily
have to prove material facts or produce specific victims.312 They
can challenge laws and government decisions in the abstract
outside the context of adversarial facts and victims. Unlike the
Constitution of South Africa, which only allows public interest litigation in relation to the Bill of Rights,313 the Constitution of Kenya
allows litigation in the public interest in relation to any provision of
the Constitution.314 The abstract review powers of the Supreme
Court of Kenya are accordingly broader than that of the Constitutional Court of South Africa.
D.
The Ethiopian System of Constitutional Review
This Section discusses the power of constitutional courts to exercise abstract review in a country that falls outside the three language groups discussed above. It specifically discusses the
Ethiopian system of constitutional review because of its unique features. As discussed below, the constitutional review system in Ethiopia bears very little resemblance with the common law or civil law
systems discussed above. Neither the American nor the European
constitutional review systems significantly influenced the Ethiopian
system, although it incorporates some features of the latter.
310. See generally Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae
Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 776 (2000) (An amicus curiae brief that
brings to the attention of the Court relevant matter not already brought to its attention by
the parties may be of considerable help to the Court. An amicus curiae brief that does not
serve this purpose burdens the Court, and its filing is not favored. (quoting SUP. CT. R.
37.1.)).
311. CONSTITUTION, art. 258 (2010) (Kenya). Subsections (1) and (2) of Article 22 of
the Kenyan Constitution specifically provide for standing in relation to the Bill of Rights.
Id. art. 22.
312. S. AFR. CONST., 1996, 38(d).
313. Id.
314. CONSTITUTION, art. 258 (2010) (Kenya).
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The 1995 Constitution of Ethiopia is the fourth written constitution in Ethiopian history.315 It establishes the Federal Democratic
Republic of Ethiopia.316 In stark departure from its predecessors,
the 1995 Constitution establishes a federal form of government
with regional states constituted primarily along ethnic lines.317
Both the federal and regional governments have their own legislative, executive, and judicial organs.318 At the federal level, the constitution establishes a parliamentary form of government with two
chambers.319 The House of Peoples Representatives (HPR), the
lower chamber, is the principal federal legislative organ composed
of members directly elected by the people.320 The House of Federation, the upper chamber, is the organ in charge of adjudicating
constitutional disputes, but it also has some legislative powers.321
The House of Federation is composed of representatives of
nations, nationalities, and peoples (ethnic groups) who are
appointed by the legislative councils of regional states.322 The
Prime Minister heads the executive branch, serves as the Head of
Government, and is Commander-in-Chief of the armed forces.323
The constitution vests judicial powers in an independent federal
judiciary.324
The constitution is the supreme law of the land.325 Any law, customary practice, or decision of an organ of the state or a public
official that violates the constitution is, therefore, invalid.326 To
ensure its supremacy, the constitution establishes an unusual system of constitutional review. The institutional design for constitutional review is different from the American (diffused) or
European (centralized) constitutional review models followed
around the world. The constitution empowers the House of Federation to adjudicate all constitutional disputes.327 Because members of the House of Federation are not necessarily legal experts,
315. CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA (1995). The
three other constitutions are the 1931 Constitution, the 1955 Revised Constitution, and the
1987 Constitution of the Peoples Democratic Republic of Ethiopia.
316. Id. art. 1.
317. Id. arts. 1, 46.
318. Id. art. 50(2).
319. See id. art. 53.
320. See id. arts. 54(1), 55(1).
321. See id. arts. 62, 83(1), 105(1)(c), 105(2)(a).
322. See id. art. 61.
323. Id. art. 74(1).
324. See id. art. 79(1).
325. Id. art. 9(1).
326. Id.
327. Id. art. 83(1).
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97
the constitution establishes the Council of Constitutional Inquiry,

composed predominantly of legal experts, to assist the House of
Federation in determining whether there is need for constitutional
interpretation and, if so, to provide recommendations to the
House of Federation for final decision.328
The constitution does not anticipate the possibility of a priori or
abstract constitutional review. It only provides for concrete review
of cases directly submitted by individuals, or indirectly through
judicial referral.329 Individuals may submit complaints against laws
and government decisions that allegedly violate human rights
directly to the Council of Constitutional Inquiry.330 Applicants,
however, must first exhaust available remedies within the relevant
government body.331 In addition, courts, either at the request of
the parties or on their own motion, may refer constitutional issues
to the Council if they are convinced that the applicable law is
incompatible with the constitution and the determination of the
constitutional issue is necessary for the resolution of the dispute
pending before the court.332 In cases where a court refuses to refer
a constitutional issue raised by the parties to the Council, the parties may submit the matter to the Council within ninety days of the
decision of the court.333
The constitution largely limits the role of independent courts in
the constitutional adjudication process to referring constitutional
issues to the Council.334 Whenever a constitutional issue arises in
judicial proceedings, courts must stay proceedings before them
and refer the constitutional matter to the Council.335 If the Council rules that there is indeed a constitutional issue, it passes its recommendations to the House of Federation for a final decision.336
In relation to issues referred by the ordinary courts, if the Council
rules that there is no constitutional issue involved, it sends the mat328. See id. arts. 8284 (explaining that the Council is composed of eleven members,
including the president and vice president of the Federal Supreme Court, six legal experts
with proven professional competence and high moral standing appointed by the president of Ethiopia upon the recommendation of the House of Peoples Representatives, and
three others nominated by the House of Federation from among its members).
329. Id. art. 84(2).
330. Council of Constitutional Inquiry July 6, 2001, FED. NEGARIT GAZETA FED. DEMOCRATIC REPUBLIC ETHIOPIA, Proclamation 250/2001, art. 23(1) (2001).
331. Id. art. 23(2).
332. See id. arts. 21, 22.
333. Id. art. 22(3).
334. CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA, art. 84(2)
(1995).
335. See id.
336. Id. art. 84(3)(b).
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ter back to the court that referred it.337 The fact that the final
power of interpreting the constitution belongs to a political organ
indicates that constitutional interpretation was perceived as an
essentially political rather than legal exercise.338
The Ethiopian Constitution does not establish procedures for
seeking advisory or consultative opinions on constitutional issues.
However, the Proclamation for the Consolidation of the House of
Federation provides that the House shall not be obliged to render
a consultancy service on Constitutional interpretation.339 The
contrary reading of this provision implies that the House of Federation, when it so wishes, may provide advisory, consultative, or guiding opinions on constitutional issues. The constitutional issue may
relate to matters concerning a law before or after its enactment.
For instance, the House of Federation delivered, upon the request
of the Office of the Prime Minister, an advisory opinion on
whether the federal government could enact a family code.340 In
another case, the House of Federation provided an interpretation
of the constitution upon the request of the Silte people to assist
regional states in their effort to address demands for internal selfdetermination within the statesan issue not expressly addressed
in the constitution.341
Although rendering consultative or advisory opinions is discretionary, there is no clear standard for the House of Federation to
follow when deciding whether to provide advisory opinions on constitutional matters. It appears that the importance of and urgency
underlying the two issues discussed above compelled the House of
Federations decision to provide consultative opinions. Moreover,
the law does not define the status of consultative opinions. It is, for
instance, not clear whether a consultative opinion is binding on all
parties that sought the opinion as well as on future cases. However,
given the House of Federation follows similar procedures in relation to all cases involving constitutional interpretation, including
advisory opinions, the opinions of the House of Federation should
337. Id. art. 84(3)(a).
338. Yonatan Tesfaye Fessha, Judicial Review and Democracy: A Normative Discourse on the
(Novel) Ethiopian Approach to Constitutional Review, 14 AFR. J. INTL & COMP. L. 53, 69 (2006).
339. Council of Constitutional Inquiry July 6, 2001, FED. NEGARIT GAZETA FED. DEMOCRATIC REPUBLIC ETHIOPIA, Proclamation 250/2001, art. 4(2).
340. Constitutional Issues Regarding the Promulgation of Family Code and Decision
(House of Federation April 2000) (on file with author). According to the Constitution,
the power to enact family laws falls within the jurisdiction of regional states. Id. The Federal Government was allowed to enact a family code for residents of the autonomous cities
of Addis Ababa and Dire Dawa.
341. Id.
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have a binding effect. Indeed, the Proclamation for the Consolidation of the House provides that final decisions of the House of Federation on constitutional interpretations are binding in all future
cases.342 This should represent the force of advisory opinions as
well. In the event that the government actually ignores the opinions of the House of Federation, it is likely that the House of Federation will subsequently invalidate the measure if and when the
constitutionality of that measure is challenged.
Since the law does not define the entities that have standing to
seek advisory opinions, the House of Federation determines
whether to accept requests on a case-by-case basis as part of the
discretionary assessment.343 From the cases discussed above, it
seems that the House of Federation will accept requests for advisory opinions from political organs and other groups if the issue
raises serious constitutional issues that need urgent
determination.344
Furthermore, the Proclamation constituting the Council provides that cases that may not be handled by regular courts and
which require constitutional interpretation may be submitted to
the Council by at least one-third of the members of the HPR or
state legislative councils, or the federal or regional executive bodies.345 Besides anticipating the existence of disputes that may not
be handled by courts, this provision opens up the Council to
engage in abstract review.346 There is no clear requirement that
the request for constitutional interpretation be based on a law or
regulation which is in force, or on a concrete dispute. Hence,
authorized entities may even refer a bill to the Council for constitutional determination. This provision can also be invoked to submit
requests for constitutional interpretation on measures, such as policies and practices, which have not been expressly catered for in
other provisions.347 Nevertheless, the Council has yet to receive a
request for an abstract constitutional interpretation.
342. Council of Constitutional Inquiry July 6, 2001, FED. NEGARIT GAZETA FED. DEMOREPUBLIC ETHIOPIA, Proclamation 250/2001, art. 11 (2001).
343. Id. art. 6.
344. Constitutional Issues Regarding the Promulgation of Family Code and Decision
(House of Federation April 2000) (on file with author).
345. Council of Constitutional Inquiry July 6, 2001, FED. NEGARIT GAZETA FED. DEMOCRATIC REPUBLIC ETHIOPIA, Proclamation 250/2001, art. 23(4) (2001).
346. See Assefa Fiseha, Constitutional Adjudication in Ethiopia: Exploring the Experience of the
House of Federation (HOF), 1 MIZAN L. REV. 1, 1920 (2007) (explaining that the Court
removes some cases from consideration).
347. See, e.g., Adem Kassie Abebe, The Potential Role of Constitutional Review in the
Realisation of Human Rights in Ethiopia 7780 (Oct. 26, 2012) (unpublished LL.D. thesis,
CRATIC
100
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The constitutional review system in Ethiopia has largely been

irrelevant in the legal and political life of the State.348 The system
has failed to ensure respect for human rights and other constitutional norms.349 Due to the absence of an independent constitutional review system, the number of cases submitted to the Council
has been insignificant.350 As of August 2013, no law has been
declared unconstitutional. Most of the cases referred to the Council have been rejected on procedural grounds.351 Despite the fact
that the government has adopted several constitutionally controversial laws, none of them has been challenged. This reluctance to
challenge controversial laws is mainly a result of lack of confidence
in the constitutional review system. In the absence of the prospect
of supply of rights by constitutional adjudicators, it is difficult to
expect demand for rights in the form of constitutional complaints. Moreover, traditional litigation support structures, such as
political parties, civil society organizations, and the media, lack the
will and experience in using constitutional adjudication to advance
their causes.
IV.
A CRITICAL ANALYSIS
OF
ADVISORY JURISDICTION
As discussed below, theoretical and practical arguments for and

against the practice of empowering constitutional adjudicators to
issue advisory opinions have been the subject of intense scholarly
debate. The main arguments against advisory jurisdiction are
based on the principle of separation of powers. The lack of specific facts and parties with direct interest may allegedly undermine
the quality of advisory opinions rendered by courts. The fact that
advisory jurisdiction potentially prevents actual harm justifies the
practice. Moreover, advisory jurisdiction also arguably reduces the
material and moral cost of enacting and enforcing unconstitutional norms.
University of Pretoria), available at http://upetd.up.ac.za/thesis/available/etd-04082013163705/unrestricted/00front.pdf (explaining that the House of Federation has developed
guidelines on who may raise a claim regarding identity and who may decide on questions
related to the right to self-determination based on recommendations of the Council).
348. Id. at vii.
349. Id. at vi.
350. See Getahun Kassa, Mechanisms of Constitutional Control: A Preliminary Observation of
the Ethiopian System, 20 AFR. FOCUS 75, 88 (2007) (discussing that in all the cases submitted
since 2007, the Council ruled that there was no need for constitutional interpretation, and
no constitutional case has been referred by the Council to the House of Federation for
final decision).
351. Id. at 86.
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A.
Arguments Against Advisory Jurisdiction
The principal theoretical challenge to the idea of granting independent courts the power of constitutional review has been the
democratic objection.352 Scholars have argued that judicial review
empowers an unelected and popularly unaccountable organ to
control elected and directly accountable political organs.353 To the
extent that advisory opinions largely form part of the constitutional
review function of courts, advisory jurisdiction may be objected to
on democratic grounds. In fact, advisory jurisdiction is perhaps
more vulnerable to criticisms based on democratic theory than
concrete judicial review. Indeed, abstract review has been
described as manifestly political because it directly implicates
constitutional adjudicators in day-to-day politics.354 A priori abstract
review is particularly criticized because it may create opportunities
for politicians to obstruct parliamentary processes before they are
finalized.355 In cases where advisory opinions are not formally
binding, however, they may be considered a weak-form of judicial
reviewjudicial review that leaves the ultimate decision making
power to representative political organs.356 Theoretical objections
to constitutional review have been practically undermined by the
fact that most constitutional states around the world have established constitutional review procedures.357 Indeed, all the countries discussed in this Article recognize abstract review procedures.
352. See Domingo, supra note 6, at 2 (observing that the democratic objection may
reasonably be considered the main objection against constitutional review); JEREMY WALDRON, LAW AND DISAGREEMENT 25354 (1999) (explaining that the general will of the people ought to prevail in the fashioning of law and policy).
353. See WALDRON, supra note 352, at 23334; Jeremy Waldron, The Core of the Case
Against Judicial Review, 115 YALE L.J. 1346, 1353 (2006).
354. Stone, supra note 7, at 55 (observing that the abstract review procedure poses the
countermajoritarian difficulty unambiguously from the moment it is initiated).
355. Id.
356. See Walter Sinnott-Armstrong, Weak and Strong Judicial Review, 22 L. & PHIL. 381,
386 (explaining that the main difference between weak-form and strong-form judicial
review is that strong-form is when the decisions of the constitutional adjudicator cannot be
overturned by the legislature except through constitutional amendment and weak-form is
when the legislature can overturn or revise the decisions of constitutional adjudicators
through ordinary procedures or if the constitutional adjudicator is one of the political
organs); see also Mark Tushnet, Weak-Form Judicial Review and Core Civil Liberties, 41 HARV.
C.R.-C.L. L. REV. 1, 25 (2006); Mark Tushnet, Forms of Judicial Review as Expressions of Constitutional Patriotism, 22 L. & PHIL. 353, 36162 (2003).
357. See generally Ginsburg & Vesteeg, supra note 2 (finding that some form of constitutional review has been adopted in most constitutional states, not just democratic regimes).
For a tabular presentation of constitutional review systems around the world, see Mavèiè,
supra note 10.
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In addition to the general objection to the power of constitutional review based on democratic theory, there are certain specific
conceptual and practical challenges to the power of courts to issue
advisory opinions, especially when the opinion relates to proposed
laws that have not yet been promulgated. Theoretically, the bar on
advisory opinions is typically justified by reference to the separation of powers and judicial restraint: when courts answer legal
questions outside the legal dispute-resolution process, they reach
beyond the judicial role and assume a quasi-legislative character.358 Advisory jurisdiction has been criticized because it may
potentially weaken legislative and popular responsibility in violation of the separation of powers.359 According to these authors,
advisory jurisdiction is objectionable as it threatens to upset the
balance of power between independent coordinate branches
through the separation of powers and checks and balances.360 The
core of their argument is that advisory jurisdiction takes judges out
of normal or proper judicial function, which is to resolve active
disputes, and forces them to swim in uncomfortable legislative
oceans.361
Detractors of advisory jurisdiction further argue that the procedure may potentially deny the right to be heard for future litigants.362 If a constitutional adjudicator has expressed itself on the
constitutionality of a proposed or enacted law, it is likely that such
a decision may influence its future decisions on the constitutionality of the law in relation to specific facts presented by individual
litigants.363 Regardless of the legal status of advisory opinions,
judges will likely find it hard to ignore their determinations in advisory proceedings while deciding on the constitutionality of the law
in relation to particular facts. The concern is therefore that the
advisory procedure, especially when it relates to criminal proce358. Advisory Opinions and the Influence of the Supreme Court over American Policymaking,
supra note 35, at 2064; see also Bledsoe, supra note 37, at 1853 (noting that judicial advisory
opinions open the door to the threatening abuse of a branchs power, jeopardizing the
delicate balance of a governmental structure based on the separation of powers among the
three independent branches).
359. Felix Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002, 1007 (1924).
supra note 35, at 206465; Bledsoe, supra note 37 at 1853, 1891; Frankfurter, supra note
359, at 100304.
supra note 35, at 2068; Bledsoe, supra note 37, at 1853; Frankfurter, supra note 359, at
100304.
362. Bledsoe, supra note 37, at 1892 (noting concerns that advisory jurisdiction potentially denies a litigant his day in court).
363. Id.
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dure, would directly affect individual rights without the affected

individuals having notice of the reference proceedings or an
opportunity to participate.364 Litigants may get the impression
that the advisory opinion procedure, where they were not heard
through either briefs or arguments, has prejudged the issues. As
such, these scholars submit that advisory opinions may abridge the
right to fair hearing of future litigants.365
Advisory opinions face the challenge of relying on speculative
and hypothetical circumstances, since they lack specific facts for
testing a particular law.366 Courts are structurally competent and
suitable to decide on the constitutionality of legislation in the context of specific facts, and the lack of specific facts therefore undermines a crucial informational component of judicial decision
making.367 Constitutional litigation often involves the application
of constitutional principles, which derive meaning only if referred
to adequate human facts.368 In criticizing suggestions that the
U.S. Supreme Court should be given advisory jurisdiction, Justice
Frankfurter observed that the abstract formulation of constitutional issues in the absence of briefs and arguments based on specific facts is bound to result in sterile conclusions unrelated to
actualities.369
The argument is that the judicial resolution of abstract constitutional questions may be difficult if not impractical.370 Facts help to
illuminate complex legal issues and therefore constitute crucial
components of judicial proceedings, and in their absence, judicial
decisions are bound to be less than optimal, potentially unsound,
and even erroneous.371 The margin of judicial error arguably
increases if and when decisions are rendered outside the context
of specific facts and parties. Since courts do not have the institutional capacity to engage in and identify all the potential factual
364. Huffman & Saathoff, supra note 20, at 1267.
365. Id.; Bledsoe, supra note 37, at 1892.
366. See generally Frankfurter, supra note 359 (warning against the judiciary extending
advisory opinions to constitutional controversies because adequate facts are necessary and
decisive in resolving such issues).
367. Rogers & Vanberg, supra note 18, at 379, 38284, 39495.
368. Frankfurter, supra note 359, at 1005.
369. Id. at 100204 (observing that judgments upon facts constitute the stuff of
enduring constitutional contests and that the controversy between legislature and courts,
in issues which matter most, is not at all a controversy about legal principles, but concerns
the application of admitted principles to complicated and often elusive facts).
371. William M. Landes & Richard A. Posner, The Economics of Anticipatory Adjudication,
23 J. LEGAL STUD. 683, 685 (1994).
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scenarios in resolving hypothetical issues,372 the political organs

should have the primary responsibility of judging the general constitutionality of legislation.373 As such, the scholars argue that
courts should not have the power to second-guess the constitutionality of proposed measures outside the context of particular facts
and parties.374 In short, the fear is that the abstract review procedure exceeds and unwisely stretches the judicial comfort zone.
In addition to the lack of specific facts, advisory jurisdiction has
been criticized based on the presumption that adversary cases that
involve actual parties with vested interests are likely to ensure the
maximum representation of legal, factual, and philosophical arguments and issues before courts.375 In advisory proceedings, there is
often only a request for an opinion from one party or entity, and it
is possible that not all the perspectives will receive sufficient representation.376 Adversarial proceedings with the accompanying
briefs and arguments are arguably more deliberative and reflective
than advisory proceedings because of the parties conflicting interpretations and outcomes.377
Moreover, because advisory opinions are often technically not
binding, if ignored, it would be a waste of precious judicial time
and resources.378 Similarly, if the issue is abandoned altogether
after the opinion has been rendered, the advisory procedure has
the same consequence of wasting scarce judicial resources. Advisory or anticipatory opinions may consume potentially enormous
resources by requiring courts to decide hypothetical, contingent,
inchoate, premature, abstract, not yet fully developed disputes
that, left alone by the courts for a time, might not require judicial
supra note 35, at 206869.
373. Frankfurter, supra note 359, at 1005 (arguing that to submit legislative proposals
to the judicial judgment, instead of the deliberate decision of the legislature, is to submit
legislative doubts instead of legislative convictions).
374. Huffman & Saathoff, supra note 20, at 1271; Landes & Posner, supra note 371, at
685; Advisory Opinions and the Influence of the Supreme Court over American Policymaking, supra
note 35, at 206869; Frankfurter, supra note 359, at 1003.
supra note 35, at 206869 (observing that the courts rely on the adversary process to
ensure that both sides of an argument are vigorously represented, and the Supreme Court
has been doubtful that vigorous representation will occur in an advisory context).
376. See id.
377. Id. See also Baker v. Carr, 369 U.S. 186, 204 (1962) (emphasizing the need to have
adverse parties with such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions).
378. E.g., In re The Matter of the Interim Independent Electoral Commission, (2011)
eK.L.R. para. 23 (C.A.K.) (Kenya) (arguing against the advisory jurisdiction of the Court).
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resolution at all.379 As a result, advisory opinions may have the

effect of unnecessarily overburdening courts.380
B.
Arguments for Advisory Jurisdiction
Supporters of advisory jurisdiction emphasize the practical

advantages of timely and most authoritative judicial opinions in
clarifying the law and in preventing the enactment or continued
enforcement of potentially unconstitutional laws, with accompanying time and resource implications.381 In addition to preventing
the wastage of legislative time and resources, which results when a
law is invalidated, the timely issuance of advisory opinions economizes on administrative costs [emanating from the enforcement of
the law] and prevents reliance costs [emanating from activities
done in accordance with the law] from being imposed on society at
large.382 The procedure is justifiable because it gives the political
organs the benefit of necessary and authoritative legal clarification
before they act.383 The authoritative interpretation removes any
cloud of doubt that may hang over legislation and helps to avoid
the damage that laws could have caused if entered into force.384
Indeed, sometimes delay in resolving a constitutional issue may
have devastating consequences. For instance, the advisory opinion
of the Supreme Court of Kenya on the representation of women
was necessary to avert the hanging risk of invalidation of elections.385 If there was no such review, and the Court later ruled that
there was a violation of the Constitution, a new election might have
had to occur. As such, the advisory procedure is far more efficient in terms of complying with constitutional requirements.386
379. Landes & Posner, supra note 371, at 685.
380. In addition, it may be argued that the ignorance of the opinions of a court in an
advisory opinion may undermine the legitimacy, credibility, and power of the court rendering them.
381. Note, Advisory Opinions on the Constitutionality of Statutes, 69 HARV. L. REV. 1302,
1305 (1956).
382. Rogers & Vanberg, supra note 18, at 395. See also Advisory Opinions on the Constitutionality of Statutes, supra note 381, at 1305 (Before it is successfully challenged, an unconstitutional statue may discourage legitimate activity; or, conversely, it may encourage
reliance which, when the statute is invalidated, will prove to have been ill-founded, thus
causing injury to those who have based action upon it.)
384. Williams, supra note 48, at 183.
Senate, (2012) 2 eK.L.R. para. 10 (C.A.K.) (Kenya).
386. Huffman & Saathoff, supra note 20, at 1316 (If the judiciary ultimately concludes
the action is invalid, the government returns to ground zero and must delay resolution of
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The main practical justification of advisory jurisdiction is therefore the desire to obtain speedy and authoritative judicial determinations of controversial legal issues.387 To prevent potential harm
and wastage of resources, the experience and skills of the judiciary
should be at the service of the other departments in time of
need.388 By preventing the enactment and/or enforcement of
unconstitutional laws or government decisions, the advisory procedure advances the causes of constitutionalism and serves as a useful instrument of government.389 Advisory opinions grant
authoritative answers to constitutional questions and have the
potential to reduce future litigation on similar issues and the costs
of constitutional uncertainty.390 The clarification of the legal status
quo ensures that governments as well as subjects are aware of the
legal and constitutional consequences of their actions. This awareness will enable them to decide whether they will act in a particular
way and avoid consistently resorting to courts to find answers.
The advisory or abstract review procedure may also help to
resolve impending political deadlock and uncertainty concerning
the constitutionality of proposed legislation.391 Wherever the head
of government refuses to sign bills finally adopted by Parliament
into law, or when two government organs disagree on constitutional and other issues leading to confrontation, the constitutional
adjudicator may be asked to determine the constitutional issue and
settle the deadlock. For instance, the advisory procedure in Kenya
resolved the uncertainty surrounding the date of election and the
representation of women.392 Similarly, the a priori abstract review
procedure established in South Africa, Mozambique, Benin, and
Angola, whereby the heads of governments may choose to refer
bills to the constitutional court before signing them into law, could
some problem or implementation of some program. It is far more efficient to simply ask
the courts in advance about the validity of proposed actions.).
387. Gerald Rubin, The Nature, Use and Effect of Reference Cases in Canadian Constitutional
Law, 6 MCGILL L.J. 168, 170 (1960).
388. ELLINGWOOD, supra note 36, at x.
389. Huffman & Saathoff, supra note 20, at 1251; see also Bledsoe, supra note 37, at 1890
(If the justices find a proposed statute to be unconstitutional, future parties, the government, and the justices may avoid the expense in time and money of bringing suit.).
390. ELLINGWOOD, supra note 36, at 19596 (observing that the advisory procedure
will reduce such probability [of future cases] to a minimum, thus saving a great deal of
litigation).
391. See generally Trevor L. Brown & Charles R. Wise, Constitutional Courts and LegislativeExecutive Relations: The Case of Ukraine, 119 POL. SCI. Q. 143 (2004) (discussing the role of
constitutional courts in reducing political deadlock).
Senate, (2012) 2 eK.L.R. paras. 2, 4, 30 (C.A.K.) (Kenya).
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help to resolve possible legislative-executive paralysis.393 The a priori review procedure helps to timely settle political disputes that
may otherwise delay or prevent the enactment of important pieces
of legislation. Indeed, the absence of such a dispute resolution
mechanism over disputes on bills between the president and Congress in the United States has led to the abandonment of several
proposed laws.394
In addition to its practical benefits, advisory jurisdiction may be
justified on conceptual grounds. First, the advisory procedure
leads to clarification of legal and constitutional provisions thereby
achieving a degree of legal clarity that is an essential manifestation
of the rule of law.395 Second, the advisory procedure facilitates better inter-organ deliberation as it provides a forum for a formal,
institutional dialogue between courts and other government
branches about what is and what is not constitutional.396 Third,
because the advisory procedure is more dialogical and less confrontational, the opinions are more likely to be complied with than
in concrete cases. Moreover, the fact that political organs often
request the opinion ensures that the outcome will likely have
strong political backing from at least one of the political groups,
thereby enhancing the prospect of implementation of constitutional principles.
Most international judicial tribunals have the power to issue advisory opinions.397 Given that international law in general and international adjudication in particular enjoy less democratic legitimacy
than domestic constitutional adjudication,398 it is unclear why
393. See CONSTITUTION DE LA REPUBLIQUE

DU BENIN Dec. 11, 1990, art. 121; CONSTITUI
REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004, arts. 163, 245 (Mozam.); CONSTITUIC AO
DA REPUBLICA
DE ANGOLA Feb. 5, 2010, art. 124; S. AFR. CONST., 1996, 80.
394. The only way through which Congress may enact laws vetoed by the president is
through a two-thirds majority vote, which is difficult to achieve. This has led to the abandonment of several laws after a presidential veto. According to a Congressional Research
Service study in April 2004, Congress had overturned only 7.1 percent (106) of the 1,484
return vetoes at that point in history. Legislative-Executive Checks and Balances, ENOTES,
http://www.enotes.com/executive-branch-reference/legislative-executive-checks-balances
(last visited Oct. 11, 2013).
395. John M. Williams, Re-Thinking Advisory Opinions, 7 PUB. L. REV. 205, 206 (1996).
Williamss argument relies on Joseph Razs conceptualization of clarity as an essential
expression of the rule of law. Joseph Raz, The Rule of Law and Its Virtue, 93 L.Q. REV. 195,
198 (1977). But see Helen Irving, Advisory Opinions, the Rule of Law, and the Separation of
Powers, 4 MACQUARIE L.J. 105, 106 (2004) (concluding that advisory jurisdiction does not
lead to greater legal certainty).
396. Blakeman, supra note 21.
397. See supra text accompanying note 8.
398. See generally Jamie Mayerfeld, The Democratic Legitimacy of International Human Rights
Law, 19 IND. INTL & COMP. L. REV. 49, 50 (2009) (noting that international law has been
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domestic constitutional adjudicators should not be granted the

power to issue advisory opinions. It is ironic to grant advisory jurisdiction to the African Commission on Human and Peoples
Rights399 and the African Court Human and Peoples Rights400
while refusing to grant similar powers to domestic constitutional
adjudicators. There are no significant differences between international and domestic tribunals that explain the wide acceptance of
advisory jurisdiction at the international level, but not at the
national level. The differences, if any, favor the granting of relatively superior powers to domestic constitutional adjudicators.
The instructive role of advisory opinions is particularly important in the African context primarily because the implications of
most constitutional provisions have not been the subject of adequate judicial scrutiny. Most of the constitutions in Africa have
existed for a short period.401 Given the short history of constitutionalism and constitutional adjudication in Africa, many constitutional issues still need clarification.
A constitution that is relatively old and has been the subject of
centuries or decades of litigation and judicial interpretation and
application needs advisory procedures less than new constitutions
that have not been the subject of continuous litigation. The advisory procedure can help in unpacking the complex constitutional
arrangements and issues that characterize most of the new constitutions in Africa.402 This complexity requires a procedure through
which constitutional questions may be urgently resolved whenever
criticized as a denial of democracy); John O. McGinnis & Ilya Somin, Should International
Law Be Part of Our Law?, 59 STAN. L. REV. 1175, 1177 (2007) (noting that most international law is made through highly undemocratic procedures).
399. African Charter on Human and Peoples Rights art. 45(3), June 27, 1981, 1520
U.N.T.S. 218.
400. Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights art. 4, June 27, 1981, 1520
U.N.T.S. 217.
401. The most notable independence constitutions that survived the constitutional
revisions of the 1990s are the constitutions of Botswana and Mauritius. Charles Manga
Fombad, Some Perspectives on Durability and Change Under Modern African Constitutions, 11
INTL J. CONST. L. 382, 389 (2013). Every other African country has written or rewritten its
constitution after the collapse of the Berlin Wall in 1989. In fact, many constitutions were
also adopted in the first decade of the twenty-first century. Examples include the 2010
constitutions of Kenya and Angola, and the 2013 Constitution of Zimbabwe. Many countries are currently undergoing constitutional reform processes.
402. See, e.g., S. AFR. CONST., 1996; CONSTITUTION (2010) (Kenya); CONSTITUTION OF
ZIMBABWE AMENDMENT (NO. 20) ACT (2013).
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the necessity arises.403 As such, even if it may be debatable in established constitutional states, advisory jurisdiction has an important
role in African states with countless outstanding constitutional
issues. Moreover, African traditions tend to prefer consensual and
non-confrontational dispute resolution mechanisms that are
geared towards reconciliation and the maintenance of social and
political relationships.404 The advisory procedure highly resonates
with African ways of resolving important social, legal, and political
issues.
The principle of separation of powers and the right to be heard
do not necessarily warrant opposition to advisory jurisdiction. The
principle of separation of powers does not necessarily preclude a
harmonious and cooperative relationship between the different
branches.405 It is difficult to argue that advisory opinions violate
the principle of separation of powers given the fact that constitutional adjudicators render advisory opinions often only at the
request of political organs. In fact, it may be argued that the principle requires courts to offer advice on legal issues if requested by
political organs.406 In that sense, advisory jurisdiction forms part of
the checks and balances that make the separation of powers more
meaningful. In any case, if a constitution recognizes concrete
review procedures, advisory jurisdiction may only speed up the
inevitable clash in the judicial system, and nothing more.407
Moreover, often advisory opinions are not legally binding.408 So
technically, the political organs are free to ignore the opinions. In
short, the advisory opinion mainly exists for the benefit of political
organs.409 This is reflected in the fact that standing in advisory
403. In re an Application for Advisory Opinion Under Article 163(6) of the Constitution of Kenya, (2012) 2 eK.L.R. para. 19 (C.A.K.) (Kenya) (noting that the far-reaching
innovations in the 2010 Constitution may require the advisory opinions of the Court).
404. R.B.G. Choudree, Traditions of Conflict Resolution in South Africa, 1 AFR. J. CONFLICT
RESOL. 9, 10 (1999); Kwaku Osei-Hwedie & Morena J. Rankopo, Indigenous Conflict Resolution in Africa: The Case of Ghana and Botswana, in INDIGENOUS METHODS OF CONFLICT RESOLUTION IN AFRICA 33, 33, available at http://home.hiroshima-u.ac.jp/heiwa/Pub/E29/e293.pdf.
405. ELLINGWOOD, supra note 36, at 41.
406. See In re References by the Governor-General in Council, [1910] S.C.R. 536, 593
(Can.).
407. Blakeman, supra note 21.
408. See supra note 26 and accompanying text.
409. Katyal, supra note 31, at 170912 (observing that advisory guidance to the political
branches has the potential to enhance the quality of legislative policy making).
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jurisdiction is often limited to legislative and executive bodies.410 It

is therefore insufficient to invoke the doctrine of separation of
powers to discredit the advisory procedure.
The argument that individuals will be denied their right to a day
in court is also not entirely justifiable. First, if an advisory opinion
recommends the cancellation of a proposed law or invalidation of
an existing law, the law will not cause any damage and therefore no
cause of action can follow. To this extent, advisory opinions prevent potential harm to individuals due process guarantees. Secondly, because advisory opinions are often not binding, due
process concerns are misplaced because no party is bound and
thus no rights are violated.411
Most importantly, even if advisory opinions were binding either
in law or in practice, it does not necessarily follow that courts will
always uphold the law in relation to each future legal and factual
scenario. Even if courts approve a law as constitutional through
advisory jurisdiction, they can find it unconstitutional when
applied to a particular set of facts. An advisory opinion on the general compliance of law with constitutional templates does not necessarily predispose all future constitutional issues in specific
circumstances.412 In addition, given that advisory jurisdiction is
often discretionary,413 courts have the power to avoid issuing advisory opinions on a case-by-case basis if they are convinced that
doing so may undermine due process rights of individuals. Hence,
as is the case in Kenya, if there is a pending concrete case in relation to the subject of a request for an advisory opinion, or if it is
likely that such a case will in the immediate future be submitted to
the courts, the constitutional adjudicator may refuse to issue an
advisory opinion.414 Of course, this is subject to exceptions in the
public interest and the urgency of the matter. In short, even in the
presence of an advisory opinion, litigants retain the right to plead
their case and challenge an otherwise valid law in the context of
their specific factual circumstances.
410. See, e.g., CONSTITUTION, art. 163(6) (2010) (Kenya) (explaining that in Kenya, only
the national government, state organs, and county governments have the standing to submit a request for an advisory opinion).
412. Id. at 1316 (observing that [s]ubsequent challenges based on facts arguably different from those contemplated in a reference are not precluded).
413. See, e.g., CONSTITUTION, art. 163(6) (2010) (Kenya) (explaining that the Supreme
Court is granted a discretionary jurisdiction to issue advisory opinions).
eK.L.R. para. 83(iii) (C.A.K.) (Kenya).
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From a practical point of view, as well, some issues are such that
there is no need to have a specific factual background to determine their implications to constitutional provisions.415 The
absence of specific facts does not necessarily undermine the quality
of decisions of constitutional adjudicators. In fact, on fundamental questions of constitutional organization and governmental
power, the abstract character of advisory proceedings offers advantages over the concrete setting of traditional adversary proceedings.416 The neutral interpretation of abstract constitutional
principles may at times benefit from the absence of specific interested parties or specific facts.417 It has been observed in the context of Canada that there is nothing to suggest that the advisory
opinions of the Supreme Court have been less well answered than
its decisions in concrete cases.418 In short, the value attached to
adversarial facts in the determination of constitutional issues is
often overstated. It is often possible to understand the implications of constitutional provisions even in the absence of specific
facts.
If properly structured and supported by some procedural innovations, the advisory procedure can be an important tool in constitutional interpretation in general and the prevention of violations
of human rights in particular.419 Creative procedural adaptations
by courts can allay practical as well as theoretical fears in relation to
advisory jurisdiction. There is indeed very little difference between
contentious and advisory opinions if courts take measures to
ensure that relevant facts, arguments, and perspectives are well represented, including by allowing and inviting amicus curiae submissions. Huffman and Saathoff observe as follows:
The assumption that advisory proceedings are qualitatively distinct from adjudicative proceedings is incorrect. The distinction
is one of degree. The traditional adjudicative proceeding can
not [sic] always avoid hypothesis. The advisory proceeding is
seldom entirely devoid of concreteness. More importantly, the
415. See Huffman & Saathoff, supra note 20, at 1313.

416. Id. at 1251.
417. See id. at 1319 (observing that facts can be known in various ways and in any event
may obscure questions of principle).
418. Id. at 131415.
419. Id. at 1317, 1321 (observing that in the Canadian context, the reference system
has become a valuable institution for constitutional interpretation and that [t]he Canadian experience suggests that the benefits are considerable and the dangers far fewer than
American lawyers and judges generally assume).
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advisory proceeding can be modified to overcome many of the

shortcomings inherent in abstract proceedings.420
The conceptual and practical objections to advisory jurisdiction

have certainly limited the extent of recognition of the procedure
around the world, particularly in Anglophone countries.421 Nevertheless, several contemporary constitutions in many parts of the
world establish procedures empowering constitutional adjudicators
to issue advisory opinions. All the countries discussed in this Article recognize the power of courts to review laws and government
decisions in the abstract. Many recent constitutions in Africa, such
as the 2013 Constitution of Zimbabwe, have recognized the potential benefits of establishing abstract review procedures.422
Clearly, the theoretical as well as practical objections to advisory
jurisdiction of constitutional adjudicators are not insurmountable.
The conceptual objections to advisory jurisdiction are often based
on a strict interpretation of the conception of separation of powers, which has now given way to a more fluid and harmonious
understanding. Procedural innovations often dispel practical
objections to advisory jurisdiction. Therefore, the advantages of
recognizing advisory jurisdiction outweigh any potential
disadvantages.423
Nevertheless, advisory jurisdiction should be discretionary. The
discretionary nature of the procedure will enable courts to cautiously determine, on a case-by-case basis, whether there is indeed
urgency warranting the shortcutting of the ordinary adversarial
procedure and the timely resolution of issues of immense constitutional significance and consequences. Moreover, courts issuing
advisory or abstract opinions should allow a wide range of actors to
present relevant factual and legal perspectives. Allowing amicus
curiae interventions achieves this. Here, constitutional adjudicators
in Francophone countries, such as Benin, may learn a lot from the
practice of courts in Anglophone countries, such as Kenya and
South Africa.424
420. Id. at 1318.
421. Aust, supra note 8, at 124.
422. CONSTITUTION OF ZIMBABWE AMENDMENT (NO. 20) ACT, arts. 167(2)(a), 131(9)
(2013) (requiring the president of the republic to seek the advice of the Constitutional
Court on the constitutionality of proposed legislation if the president is convinced that a
law passed by Parliament contravenes the constitution).
423. See generally Advisory Opinions and the Influence of the Supreme Court over American
Policymaking, supra note 35 (arguing that the absence of advisory procedures has the actual
effect of making constitutional courts more powerful than if they actually had the power).
424. See John C. Mubangizi & Christopher Mbazira, Constructing the Amicus Curiae Procedure in Human Rights Litigation: What Can Uganda Learn from South Africa?, 16 L. DEMOC-
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V.
CONCLUSION
Constitutional review is an important device to ensure that constitutional provisions actually shape government behavior and that
violations of constitutional rules are redressed.425 Constitutionalism needs not only substantive limits on government power, but
also institutions and procedures designed to prevent and redress
violations of such limits. Following the international trend, countries with a civil law legal traditionFrancophone and Lusophone
African countries, and Ethiopiaestablished centralized constitutional review systems.426 They also recognize extensive abstract
review procedures.427 On the other hand, most Anglophone African countries established diffused constitutional review systems
and mainly recognize concrete review procedures.428 However,
even in Anglophone African countries, abstract review is centralized. In Kenya, for instance, only the Supreme Court can issue
advisory opinions.429 In South Africa, only the Constitutional
Court has the power to exercise a priori review of laws.430 Also, only
the Constitutional Court may review, in the abstract, statutes upon
the referral of at least one-third of the members of National Assembly.431 However, the recognition of public interest litigation in
both South Africa and Kenya has created further opportunities for
lower courts to engage in abstract review.432
All constitutional adjudicators exercise some form of abstract
review. There is increasing convergence here across legal and linguistic systems. A priori abstract review is recognized in all coun-
& DEV. 199, 200 (2012) (discussing the amicus curiae procedure in South Africa, and
some other African countries).
425. See sources cited supra note 2.

AO
DU BENIN Dec. 11, 1990, art. 114; CONSTITUIC
DA REPUBLICA
DE MOCAMBIQUE
Nov. 16, 2004, art. 241 (Mozam.); CONSTITUTION OF THE

FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA, arts. 62(1), 83(1) (1995).
427. See CONSTITUTION DE LA REPUBLIQUE

DU BENIN Dec. 11, 1990, art. 117.
428. See CONSTITUTION, art. 163(6) (2010) (Kenya) (establishing a decentralized system
of review where the High Court has original jurisdiction to rule on constitutional issues
and the Supreme Court only has the final say, but not the only, on constitutional issues); S.
AFR. CONST. 1996, 167(5) (establishing a kind of mixed system of constitutional review
where all courts have jurisdiction over constitutional issues; however, the Constitutional
Court must confirm declarations of invalidity by lower courts before they take effect).
429. See CONSTITUTION, art. 163(6) (2010) (Kenya).
430. S. AFR. CONST. 1996, 79, 121.
431. Id. 80, 122.
432. Id. 38(d); CONSTITUTION, arts. 22(2)(c), 258(2)(c) (2010) (Kenya).
RACY
114
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19-MAR-14
11:44
[Vol. 46
tries discussed in this Article except Kenya.433 A review of the

constitutions of the selected countries also reveals that a posteriori
abstract review is recognized in all countries but Cameroon. In
practice, therefore, the theoretical and practical objections to
abstract review have been rejected by African constitutional drafters. Thus, the advantages of advisory jurisdiction outweigh the disadvantages. The power of courts to issue advisory opinions
reinforces constitutionalism by ensuring the removal of unconstitutional measures at the earliest possible stage. By clarifying the legal
status quo, the advisory procedure helps to prevent harm and avoid
the wastage of resources on enacting and enforcing unconstitutional rules. The procedure also reduces the moral cost of enacting and enforcing unconstitutional norms. The advisory
procedure is particularly advantageous when exercised before the
enactment and enforcement of laws. The experiences of the
Supreme Court of Kenya with advisory opinions attest to the potential role of the procedure to timely resolve constitutional uncertainties and avert the harm associated with the subsequent
invalidation of laws and government decisions.434
In South Africa, Mozambique, Angola, and Benin, the heads of
the executive may, rather than signing a bill adopted by Parliament, choose to refer the bill to the constitutional adjudicator to
ascertain its constitutionality.435 This form of a priori review settles
uncertainties concerning proposed laws that otherwise have wide
legislative support. By providing an opportunity to remove any
doubt regarding the constitutionality of laws, the a priori review
procedure enhances the constitutional legitimacy of the law. In
addition, by ensuring that disputes between the head of the executive and Parliament are resolved by constitutional courts, a priori
review particularly helps to resolve potential legislative-executive
political deadlock and to avoid the socio-political and economic
cost that any delays in enacting laws may cause.436 In Francophone
433. CONSTITUTION, art. 163(6) (2010) (Kenya) (stating that advisory jurisdiction may
potentially be invoked regarding issues relevant to proposed laws; in such cases, the opinion constitutes a form of a priori abstract review).
eK.L.R. para. 83(iv) (C.A.K.) (Kenya); In re the Principle of Gender Representation in the
National Assembly and the Senate, (2012) 2 eK.L.R. para. 19 (C.A.K.) (Kenya).
DU BENIN Dec. 11,

435. S. AFR. CONST., 1996, 84; CONSTITUTION DE LA REPUBLIQUE
DA REPUBLICA
1990, art. 57; CONSTITUIC AO
436. It should be noted that unlike the U.S. president who may refuse to sign a bill
finally adopted by Congress into law on any ground, the presidents of South Africa and
Mozambique can only refuse to sign a bill into law on constitutional grounds. The mechanism of resolving political deadlock in these countries is also different from the approach
unknown
Seq: 61
19-MAR-14
11:44
African countries and Angola, the competence of constitutional

courts to review the constitutionality of bills before their final
enactment is much broader than cases where there is disagreement
between the head of the executive and Parliament.437 More specifically, access to the constitutional adjudicator in the a priori review
procedure is not limited to the head of the executive.438 The a
priori review procedure also enables opposition political parties in
Parliament to prevent the enactment of unconstitutional laws.
Indeed, a priori review is often referred to as preventive
adjudication.439
A posteriori abstract review is also more extensively recognized in
Francophone than Anglophone African countries. While constitutional adjudicators in Anglophone African countries exercise
abstract review mainly in the context of public interest litigation,440
their Francophone counterparts are empowered to rule on the
constitutionality of laws in wider contexts.441 Nevertheless, the
advisory jurisdiction of the Supreme Court of Kenya and the power
of the Constitutional Court of South Africa to decide on the constitutionality of laws immediately after their enactment at the referral
of at least one-third of the members of Parliament reveal that
Anglophone African countries also recognize a posteriori abstract
review.442
The abstract review procedure is often accessible both for those
in power and in the opposition.443 However, the degree of accessibility to opposition groups varies in the different countries. While
taken in the United States where a presidential veto may only be overridden by a two-third
majority vote of Congress. In South Africa and Mozambique, the president does not have
the power to prevent the enactment of a bill into law. The president may only refer a bill
to the Constitutional Court. U.S. CONST. art. I, 7, cl. 2; S. AFR. CONST., 84, 1996. In
Angola, the president may even refer to the Constitutional Court a bill that has been
adopted by a two-thirds majority vote after the president initially returned the bill to Parlia
DA REPUBLICA
ment for reconsideration. CONSTITUIC AO
DU BENIN Dec.
437. S. AFR. CONST., 1996, 80, 122; CONSTITUTION DE LA REPUBLIQUE
DA REPUBLICA
11, 1990, arts. 97, 123; CONSTITUIC AO
DA REPUBLICA
DE ANGOLA Feb. 5, 2010.
438. See, e.g., CONSTITUIC AO
439. Alec Stone Sweet, Constitutional Courts and Parliamentary Democracy, 25 W. EUR. POL.
77, 7980 (2002) (observing that the purpose of a priori review is said to be eliminating
unconstitutionality prior to harm being done).
440. S. AFR. CONST., 1996, 38(d), 122; CONSTITUTION, 22(1), 22(2), 258(2)(c)
(2010) (Kenya).

DU BENIN Dec. 11, 1990, art. 97, 117; CONSTITUTION OF THE REPUBLIC OF CAMEROON June 2, 1972, arts. 47, 49; CONSTITUTION, art. 160
(2006) (Democratic Republic of the Congo).
442. CONSTITUTION, art. 163(3) (2010) (Kenya); S. AFR. CONST., 1996, 80, 122.
443. Opposition political parties in the National Assembly of Mozambique have particularly used a posteriori abstract review procedure to challenge laws and Presidential
116
unknown
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19-MAR-14
11:44
[Vol. 46
the Benin Constitution allows a single member of Parliament to

challenge the constitutionality of laws,444 the constitutions of
Angola and the DRC impose a modest one-tenth requirement to
challenge laws both a priori and following their final promulgation.445 The constitutions of South Africa (only a posteriori), Cameroon (only a priori), and Mozambique (only a posteriori) impose a
higher one-third threshold.446 These procedures open some levels
of access to opposition groups to challenge laws in the abstract.
On the other hand, the advisory jurisdiction in Kenya is only accessible to those in government.447 There, opposition parties do not
have the power to seek advisory opinions from the Supreme Court.
This exposes the advisory procedure for abuse by the governing
party to channel unpopular decisions through courts.448
Overall, constitutional adjudicators in Francophone African
countries have broader a priori and a posteriori abstract review powers than their Anglophone counterparts. Nevertheless, just like the
fact that written constitutions do not guarantee constitutionalism,449 the fact that some constitutional adjudicators have extensive
powers on paper does not necessarily translate to positive performance in practice. In fact, constitutional adjudicators in
Anglophone African countries have fared better over all in constraining executive and legislative power than their Francophone
Decrees. Decisions of the Constitutional Council of Mozambique are available at http://
www.cconstitucional.org.mz/Jurisprudencia (last visited May 14, 2013).

DU BENIN Dec. 11, 1990, art. 121(1).
445. CONSTITUTION, art. 160 (2006) (Democratic Republic of the Congo); CONSTITUI
C
AO
DA REPUBLICA
446. CONSTITUTION OF THE REPUBLIC OF CAMEROON June 2, 1972, arts. 47(2); CONSTITU DA REPUBLICA
IC
AO
DE MOCAMBIQUE
Nov. 16, 2004, art. 245 (Mozam.); S. AFR. CONST., 1996,

80.
447. CONSTITUTION, 163(6) (2010) (Kenya).
448. Indeed, some commentators have criticized the attorney general for requesting
the second advisory opinion of the Supreme Court of Kenya on the representation of
women in elected and appointed bodies. It was argued that the attorney general used
advisory jurisdiction to justify the governments delay in complying with the constitutional
requirement to ensure gender balance. Similar criticisms have been launched in relation
to the advisory jurisdiction of the Supreme Court of Canada. See Cristina Marie Ruggiero,
The Construction of Judicial Power in a Federal System: Lessons from Canada, United
States and Germany (2008) (unpublished Ph.D dissertation, University of WisconsinMadison) ([T]he use of the reference procedure [advisory jurisdiction] solely by the governing party can make the [Supreme] Court an instrument of the majority governments
political machinations.).
449. Hence, there is the expression: constitutions without constitutionalism. See
H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections on an African Political Paradox, in CONSTITUTIONALISM & DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY
WORLD 65, 66 (Douglas Greenberg et al. eds., 1993).
unknown
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19-MAR-14
11:44
counterparts.450 The success of constitutional adjudication often

depends on factors other than the list of the formal powers of constitutional courts. The existence of strong litigation support structures,451 legal and judicial culture, social and political culture, and
power relations within a particular political system are as important
as, if not more important than, the scope of powers and accessibility of a constitutional adjudicator. Subsequent studies should
therefore explore the African constitutional review systems to identify the political origins of constitutional review and the factors that
explain the success or failure of the system in constraining government power, to ensure the promotion and protection of fundamental rights.
450. Similarly, courts in Anglophone African countries more actively refer to international human rights instruments than their French counterparts do, despite the fact that
Francophone African countries follow the monist legal tradition and Anglophone countries traditionally follow the dualist legal tradition. See MAGNUS KILLANDER, INTERNATIONAL
LAW AND DOMESTIC HUMAN RIGHTS LITIGATION IN AFRICA 4 (2010).
451. On the importance of litigation support structures for the effectiveness of constitutional review in ensuring the realization of human rights, see EPP, supra note 212, at 89.
unknown
Seq: 64
19-MAR-14
11:44

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THE ADVISORY JURISDICTION OF CONSTITUTIONAL

Contemporary constitutional law has witnessed a waning of the

The Geo. Wash. Intl L. Rev.

and into every level of political association.3 Constitutional review

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

diction of domestic courts is more often the exception than the

The Geo. Wash. Intl L. Rev.

THE CONCEPT AND HISTORICAL EVOLUTION

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

tive body on a legal question pending before that authority.18 The

The Geo. Wash. Intl L. Rev.

Non-Advisory Forms of Review

The concept of advisory opinions and abstract review must be

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

putes.31 Here, courts provide dictum, which is advice to guide or

The English Origin of Advisory Opinions

Historically, the practice of courts giving extra-judicial advisory

The Geo. Wash. Intl L. Rev.

requests for an advisory opinion finally led to the rejection of the

Use of Advisory Opinions in North America and Australia

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

sory jurisdiction in state constitutions.45 Currently, eleven states

Advisory Opinions in Western Europe

The expansion of constitutional review in Western Europe after

The Geo. Wash. Intl L. Rev.

review in many states.53 In Germany, for instance, where there are

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

THE ADVISORY JURISDICTION OF CONSTITUTIONAL

69. E.g., CONSTITUTION DE LA REPUBLIQUE

The Geo. Wash. Intl L. Rev.

The Advisory Jurisdiction in Francophone African Countries

One of the landmark features of most constitutions adopted in

DU BENIN Dec. 11, 1990, arts. 117, 122

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

The 1990 Constitution of Benin establishes a presidential form

79. CONSTITUTION DE LA REPUBLIQUE

83. CONSTITUTION DE LA REPUBLIQUE

The Geo. Wash. Intl L. Rev.

The Constitutional Court has wide abstract review powers to

DU BENIN Dec. 11, 1990, arts. 3, 122 (1990).

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

The Geo. Wash. Intl L. Rev.

The 1996 Constitution of Cameroon establishes a presidential

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

ties, international agreements, and other matters. The Council

Africa]; Charles M. Fombad, The New Cameroonian Constitutional Council in a Comparative

The Geo. Wash. Intl L. Rev.

The Democratic Republic of Congo

In 2003, following the signing of a cease-fire in Pretoria, which

DEMOCRATIQUE DU CONGO Feb. 18, 2006.

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

tem of government with a bicameral legislature.132 It creates a

The Geo. Wash. Intl L. Rev.

treaty or agreement includes a clause contrary to the constitution,

2013] Advisory Jurisdiction of Constitutional Courts in Sub-Sahara Africa

The Advisory Jurisdiction in Lusophone African Countries

Both Francophone and Lusophone African countries have

The 1990 Constitution first introduced multiparty democracy to