–Dr. Tom Kabau, Co-Editor in Chief, Africa Journal of Comparative Constitutional Law; Senior Lecturer in Law, School of Law, Jomo Kenyatta University of Agriculture and Technology
The inaugural issue of the (AJCCL) (volume 1, 2016) is now out. The AJCCL is published by JUTA Law of South Africa and is hosted by the Kenya School of Law in Nairobi. Supported by a distinguished International Advisory Board, the AJCCL provides expert analysis of and commentary on constitutional issues relevant to Africa and the developing world. The contents of the inaugural issue include:
- J Oloka-Onyango and Christopher Mbazira, ‘Befriending the judiciary: Behind and beyond the 2016 Supreme Court amicus curiae rulings in Uganda’;
- Tom Kabau, ‘Constitutional dilemmas in the recovery of corruptly acquired assets in Kenya: Strengthening judicial assault on corruption’;
- Niharika Bahl, ‘Accommodation and altercation: The challenge of legal pluralism in India and South Africa’;
- Fredrick Sekindi, ‘Another perpetuation of incumbency through the supreme law: The conceptualisation of the presidency under the 1995 Constitution of Uganda’;
- Aydin Atilgan, ‘Global constitutionalism in the context of the Third World: Remarks in pursuit of a new paradigm’.
In the first article, J Oloka-Onyango and Christopher Mbazira evaluate the implications of two precedent setting amici curiae applications that were filed at the Supreme Court of Uganda during the 2016 presidential election petition that challenged the re-election of President Yoweri Museveni. They argue that the Supreme Court’s landmark rulings in the amici curiae applications established progressive precedents for the admission of such requests, and clarified core issues, including the questions of bias, the requisite expertise of the intended ‘friends of the court’, and the protection of public interest.
In the second article, Tom Kabau assesses the challenges and prospects of successful recovery of secretly looted public assets in Kenya through court remedies in the context of the ‘absolute’ constitutional right to a fair trial, which includes the presumption of innocence and the right not to provide self-incriminating evidence. He analyses the emerging trend of some questionable allegations of violations of the right to a fair trial that have unjustifiably resulted in the quashing of court proceedings and investigations concerning corruption. On that basis, the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Kabau argues that such an interpretative approach may facilitate the entrenchment of accountability in public institutions in Kenya, including in the Judiciary, and therefore eventually guarantee all Kenyans the right to a fair trial.
In the next article, Niharika Bahl discusses the commonalities and distinctions, and the associated merits, in the relationship between non-state and state legal systems in India and South Africa in the context of their constitutional systems. He points out that while the Indian approach to legal pluralism indicates a cautious acceptance of non-state legal systems, South Africa has significantly and willingly embraced such non-state systems, resulting in high levels of legal pluralism in the country.
Fredrick Sekindi, in the fourth article, undertakes an analysis of the nature of the ‘imperial’ and ‘perpetual’ presidency established under the 1995 Constitution of Uganda while taking into account the previous fundamental laws adopted in the country since it became a British Protectorate in 1894. It is on that basis that Sekindi convincingly argues that just like the previous fundamental laws, the 1995 Constitution of Uganda was, regrettably, imposed with the overriding objective of entrenching and perpetuating President Museveni’s hold on state power.
In the last article, Aydin Atilgan focuses on identifying a distinctive and progressive position for the Third World in the highly Western-centric debate on global constitutionalism. He observes that some of the elements of constitutionalisation beyond nation states may seem to consolidate the concerns of non-Western states, such as their opposition to further domination in international relations. In that context, he is of the view that transnational constitutionalism presents a vital opportunity for the Third World to advocate its moral arguments of emancipation in international relations discourse and practice. In addition, Atilgan calls for more active participation by non-Western states in the global constitutionalism discourse, which he identifies as highly desirable, as it may assist such countries develop new strategies for their greater emancipation in international relations.