paper is not quoted or cited without express permission of the author. The editors cannot guarant... more paper is not quoted or cited without express permission of the author. The editors cannot guarantee a stable URL for any paper posted here, nor will they be responsible for notifying others if the URL is changed or the paper is taken off the site. Electronic copies of this paper may not be posted on any other website without express permission of the author. The posting of this paper on the hrhw working papers website does not constitute any position of opinion or judgment about the contents, arguments or claims made in the paper by the editors. For more information about the hrhw working papers series or website, please visit the site online at
This chapter explains how legal syncretism influences and manifests itself in the design and prac... more This chapter explains how legal syncretism influences and manifests itself in the design and practice of constitutional rights—with a particular focus on women’s rights—in the constitutional systems of Nigeria, South Africa, and Ethiopia. The chapter demonstrates how the interaction between the liberal and indigenous conceptions of rights in a constitutional space produces unique regimes of women’s rights in these countries. The chapter first presents a brief theory of women’s rights as a standard of comparison and evaluation; this is done through a more general investigation of women’s rights in international law. This is then followed by a more focused discussion of women’s constitutional rights in Nigeria, South Africa, and Ethiopia. Such discussion explores the substantive content and the way in which women’s rights are constitutionalized, as well as their practical and judicial applications. The syncretic nature of women’s rights in these countries sheds some light on the impor...
The African legal universe is difficult to capture through the lens of legal centralism and legal... more The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.
This chapter focuses on the executive branch in order to explain how legal syncretism influences ... more This chapter focuses on the executive branch in order to explain how legal syncretism influences African constitutional design and practice, using Nigeria, Ethiopia, and South Africa as comparative case studies. The chapter first develops a conceptual framework for the design of the executive and the practice of executive power drawing from liberal constitutional theory. The chapter then explores and examines the design of the executive and the practice of executive power in Nigeria, Ethiopia, and South Africa. The aim is to demonstrate how legal syncretism shapes the executive branches in these countries and how different configurations of legal syncretism have produced imperial executives in Nigeria and Ethiopia, but not in South Africa. By disentangling the discursive practices that bring about and sustain the imperial executives, and by showing the pathologies of constitutional design and practice related to the executive, the chapter defends the idea of a limited executive if c...
This thesis examines and explores the potential of Directive Principles of State policy (DPSP) fo... more This thesis examines and explores the potential of Directive Principles of State policy (DPSP) for the judicial enforcement of socio-economic rights by taking Ethiopia and India as a comparative study. DPSP have brought additional discourse on the constitutional protection of human rights in general and socio-economic rights in particular. The objective of this thesis is to assess whether DPSP as a constitutional principle are helpful for the judiciary to enforce socio-economic rights or whether they are ‘pious aspirations and mischievous generalities’ which do not have a judicial utility. Through systematic desk review of primary and secondary sources, this thesis has found that DPSP have a huge potential for the judicial enforcement of socio-economic rights. On the one hand, the Indian experience confirms that the innovative and harmonized interpretation of fundamental rights and DPSP have resulted in the enforcement of socio-economic rights. By reading DPSP with the right to life...
Corruption is a universal problem which compromises people’s quest for development, peace, democr... more Corruption is a universal problem which compromises people’s quest for development, peace, democracy, and human rights though its degree of severity varies. Due to its universality, there was global campaign against corruption and has resulted in an international regime of law. Law is one of the strategies of combating corruption; however, there are other strategies which should be implemented to contain corruption. Nonetheless, the article focuses on the legal measures for the fight against corruption by excluding other measures. It explores the strategies provided by the United Nations and African Union anticorruption conventions with a view to evaluate the Ethiopian legal regime on corruption. Especially, it critically examines to what extent the legal regime of corruption in Ethiopia incorporate the measures provided by these conventions; to what extent the existing laws/institutions are adequate to prevent and combat corruption effectively; and the measures which should be take...
Building on the theses and analyses of the previous chapters, this chapter attempts to bring the ... more Building on the theses and analyses of the previous chapters, this chapter attempts to bring the elements of legal syncretism to the attention of future African constitutional design and practice. With this objective, the chapter discusses why African constitutional design should take sovereignty seriously and underscores why sovereignty is—and must be—an important aspect of any African constitutional theory; presents some of the major limits or shortcomings of postcolonial constitutional reforms and draws attention to possible future constitutional reform areas; and highlights the potential of some aspects of African constitutional design and practice that can mediate and operationalize the practice and application of plural constitutional values—something that future constitutional design and practice should attempt to consolidate.
This chapter investigates how legal syncretism as a process can explain the African constitutiona... more This chapter investigates how legal syncretism as a process can explain the African constitutional transformations and developments from precolonial times to the present. Through the lens of legal syncretism, the chapter explores and examines the idea and practice of constitutionalism in precolonial Africa, traces the transformation of precolonial constitutionalism brought about by the introduction of colonial constitutionalism, and shows how postcolonial constitutionalism builds on, and departs from, the previous constitutional systems. This investigation illustrates how the encounters and interactions between international law, colonial law, indigenous constitutional systems, and the liberal constitutional norms that have been prevalent since the late nineteenth century have all contributed to the establishment of the territorial, political, and theoretical contours of African constitutionalism.
This study examines women’s rights and legal pluralism in the Ethiopian Somali regional state. To... more This study examines women’s rights and legal pluralism in the Ethiopian Somali regional state. To this end, a socio-legal research methodology was used. Both secondary data and primary data (collected through semi-structured interviews, focus group discussions and observations) were utilized. The primary data was collected from judges, prosecutors, community elders, men and women. The study revealed that personal property, participation, family rights and marriage rights of women are compromised under customary law – xeer and religious law – sharia. Some of the practices of xeer and sharia are incompatible with the FDRE and Somali constitutions and universal human rights standards. It is also found that women subscribe to these laws not always by their consent but due to fear of social exclusion and loss of social security from their kinship. Moreover, the family law which has been applied in Somali region sustains the inequality and discrimination of women. It is argued that women’...
This chapter presents legal syncretism as a new theoretical framework for African constitutionali... more This chapter presents legal syncretism as a new theoretical framework for African constitutionalism. After providing reasons for needing a new theoretical framework the chapter proceeds to explore the existing theoretical frameworks of law in general—legal centralism and legal pluralism—and examines their relevance to African constitutionalism. After demonstrating both the potential and limits of these frameworks, the chapter then proposes legal syncretism as a new and better theoretical framework with which to capture and explain the transformation of African constitutionalism from precolonial times to the present, as well as all the attendant constitutional designs and practices.
This book asks and seeks to answer why we need a theory for African constitutionalism and how thi... more This book asks and seeks to answer why we need a theory for African constitutionalism and how this could offer us better theoretical and practical tools with which to understand, improve, and assess African constitutionalism on its own terms. By locating constitutional studies in Africa within the experiences, interactions, and contestations of power and governance beginning in precolonial times, the book presents the development and transformation of African constitutional systems across time and place, along with the attendant constitutional designs and practices ranging from the nature and operation of the African state to its vertical and horizontal government structures, to its constitutional rights regime. It offers both a theoretically and comparatively rich, historically and contextually informed, and temporally and spatially extensive account of the nature, travails, and incremental successes of African constitutionalism with detailed case studies from Nigeria, Ethiopia, an...
This chapter explores and examines how legal syncretism as a result permeates the design and prac... more This chapter explores and examines how legal syncretism as a result permeates the design and practice of African constitutionalism. By seriously considering the constitutional structures and rights, as well as their practical applications, the chapter attempts to decrypt the identity, nature, and texture of African constitutionalism through legal syncretism. The chapter explicates the nature of the African state and its various modalities of organization, examines the African government architecture, and investigates the constitutional rights regime. Through a closer look at the texts and contexts of constitutions and constitutionalism in Africa, and building on legal, constitutional, social, political, and international relations theory, the chapter aims to reveal the distinctive features of African constitutionalism. The overarching objective of this chapter is to underscore why appreciating the syncretic features of African constitutionalism is necessary for understanding, improv...
Law and development (L&D) is a dynamic academic and policy field. Since the second half of the tw... more Law and development (L&D) is a dynamic academic and policy field. Since the second half of the twentieth century, anthropologists, lawyers, economists, and political scientists have taken a special interest in L&D. Due to such multidisciplinary engagement and its dynamism, L&D is at once a field or discipline of inquiry, an approach or way of thinking, a phenomenon to be observed, and a funding device to be deployed in development practice. In this chapter, by going beyond the conventional narratives of L&D studies, the authors examine the idea of development and law, along with their interactions in the context of L&D at national and international levels. This comprehensive investigation shows the deeper theoretical, political, ideological, and legal perspectives that underpin and structure the scholarship, policy, and practice of law and development. The chapter then critically reviews the three moments of L&D, which have their distinct common features, and suggest why L&D should ...
This article examines the path of global constitutionalism and its encounter with cultural divers... more This article examines the path of global constitutionalism and its encounter with cultural diversity in Africa. It situates the phenomenon of global constitutionalism in the late nineteenth century and traces some of its tectonic transformations since the inauguration of the liberal international order. Besides referring to the processes of and calls for the constitutionalization of the international legal regime and the emergence of global constitutional law, global constitutionalism played a constitutive role for constitutionalism in Africa. As constitutionalism in Africa is configured within a biosphere of global constitutionalism and cultural diversity, their dynamic interplay leads to the emergence of jurisgenerative constitutionalism, which is procedurally and normatively open to accommodate a plural conception of rights, justice and values. As a result, what is constitutionally permissible and what is not cannot simply be determined by an attachment to either global constitutionalism or cultural diversity. Rather, it is the interaction of global constitutionalism and cultural diversity in time and place that dictates what the constitutional practice or outcome should look like. By taking the women’s rights jurisprudence related to customary and Islamic laws and the phenomenon of Shariacracy as themes of analysis, and Nigeria as a case study, this article explores how the emergence of jurisgenerative constitutionalism mediates global constitutionalism and cultural diversity in Africa. By bringing in the African experience, the article sheds some light on the range of theoretical and practical possibilities available to the emerging field of global constitutionalism.
Ethiopian Constitutional and Public Law Series , 2019
This article explores and examines the citizenship and human rights architecture under the Ethiop... more This article explores and examines the citizenship and human rights architecture under the Ethiopian Constitution. As Ethiopia is imagined as a community of Nations, Nationalities and Peoples (NNPs), membership to NNPs is an essential component of being Ethiopian. Further, as Ethiopia is primarily constituted to advance and safeguard the interests and rights of NNPs, the enforcement of individual human rights is contingent upon their service to NNPs. The citizenship and human rights architecture engineered by the Ethiopian Constitution makes ethnicity the main site of citizenship. As a result, ethnicity has become the primary means and ultimate end of political organization and contestation in contemporary Ethiopia. For this constitutional design to work, this article suggests, the constitutional and political actors either have to find a narrative that goes beyond the normative universe of the Constitution or rethink the foundations and assumptions of the citizenship and human rights architecture.
Verfassung und Recht in Übersee/World Comparative Law
This article examines the African experiment with federalism in light of classic federal theory w... more This article examines the African experiment with federalism in light of classic federal theory with the objective of identifying and illuminating patterns of convergence and divergence and the consequences thereof. Classic federal theory offers explanations for the origin, formation, structures, and success and failure of federalism. This article, drawing from the experience of Nigeria, Ethiopia, and South Africa, reveals that while federalism in Africa shares the forms, structures, and discursive practices of classic federal theory, its normative articulations and institutional frameworks are animated by syncretic configurations. As a result, federalism transforms its purpose, fundamental elements, and operations in Africa. As federalism follows new pathways in Africa, this article shows how its system of operation and standards of assessment take a similar course. Against the central ethos of classic federal theory, federalism in Africa manages to operate and, to the extent possible, deliver its purpose mainly without liberal constitutionalism. This article argues that if federalism has to ensure the practice of constitutional democracy in Africa then democratic values, human rights, and constitutional considerations should animate its normative and institutional underpinnings as in classic federal theory.
Canadian Journal of African Studies / Revue canadienne des études africaines , 2019
Beyond being a descriptive framework of the legal universe in sub-Saharan Africa, legal pluralism... more Beyond being a descriptive framework of the legal universe in sub-Saharan Africa, legal pluralism has become a policy field in the rule of law promotion. The aim of this article is to problematize and clarify how legal pluralism has been deployed for rule of law, and on what grounds sustainable rule of law through legal pluralism hold. Due to the syncretic nature of the state in sub-Saharan Africa, it is contended that legal pluralism is configured with a Janus face. While one face of legal pluralism connects the state to the society and is positioned to maintain internal peace and order, the other face connects the state to the international community and consequently shields it from external threat. This article argues that a sustainable rule of law promotion rests on the dialectic of the constitutional systems and the Janus faced configuration of legal pluralism in sub-Saharan Africa. RÉSUMÉ Au-delà de sa fonction de cadre descriptif de l'univers juridique en Afrique subsaharienne, le pluralisme juridique est devenu un champ politique de la promotion de l'état de droit. L'objectif de cet article est la problématisation et la clarification de la manière dont le pluralisme juridique a été déployé pour l'état de droit, et des bases sur lesquelles, à travers le pluralisme juridique, un état de droit durable peut s'appuyer. En raison du caractère syncrétique de l'État en Afrique subsaharienne, nous soutenons que le pluralisme juridique est configuré comme une figure de Janus à deux faces. Alors qu'une face du pluralisme juridique connecte l'état de la société et est positionnée pour le maintien de la paix et de l'ordre intérieurs, l'autre face connecte l'État à la communauté internationale et, en conséquence, la protège des menaces extérieures. Cet article soutient que la promotion d'un état de droit durable repose sur la dialectique des systèmes cons-titutionnels et sur la configuration en double face de Janus du pluralisme juridique en Afrique subsaharienne.
A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals... more A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples (NNPs). The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is relegated in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights.
paper is not quoted or cited without express permission of the author. The editors cannot guarant... more paper is not quoted or cited without express permission of the author. The editors cannot guarantee a stable URL for any paper posted here, nor will they be responsible for notifying others if the URL is changed or the paper is taken off the site. Electronic copies of this paper may not be posted on any other website without express permission of the author. The posting of this paper on the hrhw working papers website does not constitute any position of opinion or judgment about the contents, arguments or claims made in the paper by the editors. For more information about the hrhw working papers series or website, please visit the site online at
This chapter explains how legal syncretism influences and manifests itself in the design and prac... more This chapter explains how legal syncretism influences and manifests itself in the design and practice of constitutional rights—with a particular focus on women’s rights—in the constitutional systems of Nigeria, South Africa, and Ethiopia. The chapter demonstrates how the interaction between the liberal and indigenous conceptions of rights in a constitutional space produces unique regimes of women’s rights in these countries. The chapter first presents a brief theory of women’s rights as a standard of comparison and evaluation; this is done through a more general investigation of women’s rights in international law. This is then followed by a more focused discussion of women’s constitutional rights in Nigeria, South Africa, and Ethiopia. Such discussion explores the substantive content and the way in which women’s rights are constitutionalized, as well as their practical and judicial applications. The syncretic nature of women’s rights in these countries sheds some light on the impor...
The African legal universe is difficult to capture through the lens of legal centralism and legal... more The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.
This chapter focuses on the executive branch in order to explain how legal syncretism influences ... more This chapter focuses on the executive branch in order to explain how legal syncretism influences African constitutional design and practice, using Nigeria, Ethiopia, and South Africa as comparative case studies. The chapter first develops a conceptual framework for the design of the executive and the practice of executive power drawing from liberal constitutional theory. The chapter then explores and examines the design of the executive and the practice of executive power in Nigeria, Ethiopia, and South Africa. The aim is to demonstrate how legal syncretism shapes the executive branches in these countries and how different configurations of legal syncretism have produced imperial executives in Nigeria and Ethiopia, but not in South Africa. By disentangling the discursive practices that bring about and sustain the imperial executives, and by showing the pathologies of constitutional design and practice related to the executive, the chapter defends the idea of a limited executive if c...
This thesis examines and explores the potential of Directive Principles of State policy (DPSP) fo... more This thesis examines and explores the potential of Directive Principles of State policy (DPSP) for the judicial enforcement of socio-economic rights by taking Ethiopia and India as a comparative study. DPSP have brought additional discourse on the constitutional protection of human rights in general and socio-economic rights in particular. The objective of this thesis is to assess whether DPSP as a constitutional principle are helpful for the judiciary to enforce socio-economic rights or whether they are ‘pious aspirations and mischievous generalities’ which do not have a judicial utility. Through systematic desk review of primary and secondary sources, this thesis has found that DPSP have a huge potential for the judicial enforcement of socio-economic rights. On the one hand, the Indian experience confirms that the innovative and harmonized interpretation of fundamental rights and DPSP have resulted in the enforcement of socio-economic rights. By reading DPSP with the right to life...
Corruption is a universal problem which compromises people’s quest for development, peace, democr... more Corruption is a universal problem which compromises people’s quest for development, peace, democracy, and human rights though its degree of severity varies. Due to its universality, there was global campaign against corruption and has resulted in an international regime of law. Law is one of the strategies of combating corruption; however, there are other strategies which should be implemented to contain corruption. Nonetheless, the article focuses on the legal measures for the fight against corruption by excluding other measures. It explores the strategies provided by the United Nations and African Union anticorruption conventions with a view to evaluate the Ethiopian legal regime on corruption. Especially, it critically examines to what extent the legal regime of corruption in Ethiopia incorporate the measures provided by these conventions; to what extent the existing laws/institutions are adequate to prevent and combat corruption effectively; and the measures which should be take...
Building on the theses and analyses of the previous chapters, this chapter attempts to bring the ... more Building on the theses and analyses of the previous chapters, this chapter attempts to bring the elements of legal syncretism to the attention of future African constitutional design and practice. With this objective, the chapter discusses why African constitutional design should take sovereignty seriously and underscores why sovereignty is—and must be—an important aspect of any African constitutional theory; presents some of the major limits or shortcomings of postcolonial constitutional reforms and draws attention to possible future constitutional reform areas; and highlights the potential of some aspects of African constitutional design and practice that can mediate and operationalize the practice and application of plural constitutional values—something that future constitutional design and practice should attempt to consolidate.
This chapter investigates how legal syncretism as a process can explain the African constitutiona... more This chapter investigates how legal syncretism as a process can explain the African constitutional transformations and developments from precolonial times to the present. Through the lens of legal syncretism, the chapter explores and examines the idea and practice of constitutionalism in precolonial Africa, traces the transformation of precolonial constitutionalism brought about by the introduction of colonial constitutionalism, and shows how postcolonial constitutionalism builds on, and departs from, the previous constitutional systems. This investigation illustrates how the encounters and interactions between international law, colonial law, indigenous constitutional systems, and the liberal constitutional norms that have been prevalent since the late nineteenth century have all contributed to the establishment of the territorial, political, and theoretical contours of African constitutionalism.
This study examines women’s rights and legal pluralism in the Ethiopian Somali regional state. To... more This study examines women’s rights and legal pluralism in the Ethiopian Somali regional state. To this end, a socio-legal research methodology was used. Both secondary data and primary data (collected through semi-structured interviews, focus group discussions and observations) were utilized. The primary data was collected from judges, prosecutors, community elders, men and women. The study revealed that personal property, participation, family rights and marriage rights of women are compromised under customary law – xeer and religious law – sharia. Some of the practices of xeer and sharia are incompatible with the FDRE and Somali constitutions and universal human rights standards. It is also found that women subscribe to these laws not always by their consent but due to fear of social exclusion and loss of social security from their kinship. Moreover, the family law which has been applied in Somali region sustains the inequality and discrimination of women. It is argued that women’...
This chapter presents legal syncretism as a new theoretical framework for African constitutionali... more This chapter presents legal syncretism as a new theoretical framework for African constitutionalism. After providing reasons for needing a new theoretical framework the chapter proceeds to explore the existing theoretical frameworks of law in general—legal centralism and legal pluralism—and examines their relevance to African constitutionalism. After demonstrating both the potential and limits of these frameworks, the chapter then proposes legal syncretism as a new and better theoretical framework with which to capture and explain the transformation of African constitutionalism from precolonial times to the present, as well as all the attendant constitutional designs and practices.
This book asks and seeks to answer why we need a theory for African constitutionalism and how thi... more This book asks and seeks to answer why we need a theory for African constitutionalism and how this could offer us better theoretical and practical tools with which to understand, improve, and assess African constitutionalism on its own terms. By locating constitutional studies in Africa within the experiences, interactions, and contestations of power and governance beginning in precolonial times, the book presents the development and transformation of African constitutional systems across time and place, along with the attendant constitutional designs and practices ranging from the nature and operation of the African state to its vertical and horizontal government structures, to its constitutional rights regime. It offers both a theoretically and comparatively rich, historically and contextually informed, and temporally and spatially extensive account of the nature, travails, and incremental successes of African constitutionalism with detailed case studies from Nigeria, Ethiopia, an...
This chapter explores and examines how legal syncretism as a result permeates the design and prac... more This chapter explores and examines how legal syncretism as a result permeates the design and practice of African constitutionalism. By seriously considering the constitutional structures and rights, as well as their practical applications, the chapter attempts to decrypt the identity, nature, and texture of African constitutionalism through legal syncretism. The chapter explicates the nature of the African state and its various modalities of organization, examines the African government architecture, and investigates the constitutional rights regime. Through a closer look at the texts and contexts of constitutions and constitutionalism in Africa, and building on legal, constitutional, social, political, and international relations theory, the chapter aims to reveal the distinctive features of African constitutionalism. The overarching objective of this chapter is to underscore why appreciating the syncretic features of African constitutionalism is necessary for understanding, improv...
Law and development (L&D) is a dynamic academic and policy field. Since the second half of the tw... more Law and development (L&D) is a dynamic academic and policy field. Since the second half of the twentieth century, anthropologists, lawyers, economists, and political scientists have taken a special interest in L&D. Due to such multidisciplinary engagement and its dynamism, L&D is at once a field or discipline of inquiry, an approach or way of thinking, a phenomenon to be observed, and a funding device to be deployed in development practice. In this chapter, by going beyond the conventional narratives of L&D studies, the authors examine the idea of development and law, along with their interactions in the context of L&D at national and international levels. This comprehensive investigation shows the deeper theoretical, political, ideological, and legal perspectives that underpin and structure the scholarship, policy, and practice of law and development. The chapter then critically reviews the three moments of L&D, which have their distinct common features, and suggest why L&D should ...
This article examines the path of global constitutionalism and its encounter with cultural divers... more This article examines the path of global constitutionalism and its encounter with cultural diversity in Africa. It situates the phenomenon of global constitutionalism in the late nineteenth century and traces some of its tectonic transformations since the inauguration of the liberal international order. Besides referring to the processes of and calls for the constitutionalization of the international legal regime and the emergence of global constitutional law, global constitutionalism played a constitutive role for constitutionalism in Africa. As constitutionalism in Africa is configured within a biosphere of global constitutionalism and cultural diversity, their dynamic interplay leads to the emergence of jurisgenerative constitutionalism, which is procedurally and normatively open to accommodate a plural conception of rights, justice and values. As a result, what is constitutionally permissible and what is not cannot simply be determined by an attachment to either global constitutionalism or cultural diversity. Rather, it is the interaction of global constitutionalism and cultural diversity in time and place that dictates what the constitutional practice or outcome should look like. By taking the women’s rights jurisprudence related to customary and Islamic laws and the phenomenon of Shariacracy as themes of analysis, and Nigeria as a case study, this article explores how the emergence of jurisgenerative constitutionalism mediates global constitutionalism and cultural diversity in Africa. By bringing in the African experience, the article sheds some light on the range of theoretical and practical possibilities available to the emerging field of global constitutionalism.
Ethiopian Constitutional and Public Law Series , 2019
This article explores and examines the citizenship and human rights architecture under the Ethiop... more This article explores and examines the citizenship and human rights architecture under the Ethiopian Constitution. As Ethiopia is imagined as a community of Nations, Nationalities and Peoples (NNPs), membership to NNPs is an essential component of being Ethiopian. Further, as Ethiopia is primarily constituted to advance and safeguard the interests and rights of NNPs, the enforcement of individual human rights is contingent upon their service to NNPs. The citizenship and human rights architecture engineered by the Ethiopian Constitution makes ethnicity the main site of citizenship. As a result, ethnicity has become the primary means and ultimate end of political organization and contestation in contemporary Ethiopia. For this constitutional design to work, this article suggests, the constitutional and political actors either have to find a narrative that goes beyond the normative universe of the Constitution or rethink the foundations and assumptions of the citizenship and human rights architecture.
Verfassung und Recht in Übersee/World Comparative Law
This article examines the African experiment with federalism in light of classic federal theory w... more This article examines the African experiment with federalism in light of classic federal theory with the objective of identifying and illuminating patterns of convergence and divergence and the consequences thereof. Classic federal theory offers explanations for the origin, formation, structures, and success and failure of federalism. This article, drawing from the experience of Nigeria, Ethiopia, and South Africa, reveals that while federalism in Africa shares the forms, structures, and discursive practices of classic federal theory, its normative articulations and institutional frameworks are animated by syncretic configurations. As a result, federalism transforms its purpose, fundamental elements, and operations in Africa. As federalism follows new pathways in Africa, this article shows how its system of operation and standards of assessment take a similar course. Against the central ethos of classic federal theory, federalism in Africa manages to operate and, to the extent possible, deliver its purpose mainly without liberal constitutionalism. This article argues that if federalism has to ensure the practice of constitutional democracy in Africa then democratic values, human rights, and constitutional considerations should animate its normative and institutional underpinnings as in classic federal theory.
Canadian Journal of African Studies / Revue canadienne des études africaines , 2019
Beyond being a descriptive framework of the legal universe in sub-Saharan Africa, legal pluralism... more Beyond being a descriptive framework of the legal universe in sub-Saharan Africa, legal pluralism has become a policy field in the rule of law promotion. The aim of this article is to problematize and clarify how legal pluralism has been deployed for rule of law, and on what grounds sustainable rule of law through legal pluralism hold. Due to the syncretic nature of the state in sub-Saharan Africa, it is contended that legal pluralism is configured with a Janus face. While one face of legal pluralism connects the state to the society and is positioned to maintain internal peace and order, the other face connects the state to the international community and consequently shields it from external threat. This article argues that a sustainable rule of law promotion rests on the dialectic of the constitutional systems and the Janus faced configuration of legal pluralism in sub-Saharan Africa. RÉSUMÉ Au-delà de sa fonction de cadre descriptif de l'univers juridique en Afrique subsaharienne, le pluralisme juridique est devenu un champ politique de la promotion de l'état de droit. L'objectif de cet article est la problématisation et la clarification de la manière dont le pluralisme juridique a été déployé pour l'état de droit, et des bases sur lesquelles, à travers le pluralisme juridique, un état de droit durable peut s'appuyer. En raison du caractère syncrétique de l'État en Afrique subsaharienne, nous soutenons que le pluralisme juridique est configuré comme une figure de Janus à deux faces. Alors qu'une face du pluralisme juridique connecte l'état de la société et est positionnée pour le maintien de la paix et de l'ordre intérieurs, l'autre face connecte l'État à la communauté internationale et, en conséquence, la protège des menaces extérieures. Cet article soutient que la promotion d'un état de droit durable repose sur la dialectique des systèmes cons-titutionnels et sur la configuration en double face de Janus du pluralisme juridique en Afrique subsaharienne.
A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals... more A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples (NNPs). The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is relegated in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights.
The African legal universe is difficult to capture through the lens of legal centralism and legal... more The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.
Ethiopia's ethnic federalism is under stress more than any time since its introduction in 1995. W... more Ethiopia's ethnic federalism is under stress more than any time since its introduction in 1995. Waves of protest movements in Oromia and Amhara Regional states, in particular, have not given ethnic federalism an easy ride since 2015. Hence, Semahagn Gashu Abebe's The Last Post-Cold War Socialist Federation is a significant contribution in understanding the sociology of Ethiopian federalism, the political context within which it came into being and is operating, and sheds light on why some ethnic groups are protesting. Abebe's underlying objective is to explain how the configuration of a Socialist federation in the restructuring of the Ethiopian state makes the transition to and consolidation of democratization and respect for human rights difficult. Organizing the book in eight chapters, Abebe makes a compelling case on the disjuncture between constitutional design and practice in the operation of federalism in Ethiopia. His main hypothesis is that the ideological and political tenets of the TPLF/EPRDF, the ruling coalition since 1991, are more important than the formal constitutional rules in the operation of the federal system. Precisely because of this, he contends that there are two parallel constitutional systems in Ethiopia. In order to test this hypothesis, Abebe explores and examines in detail the scholarship on federal theory and comparative federalism in the first and second chapters. After examining the origin, essential components, basic features, and operation of democratic multi-cultural federations, Abebe could not find comparative relevance for the Ethiopian federal experiment in these systems. As a result, he turns his inquiry to former Socialist federations (Union of Soviet Socialist Republic, Czechoslovakia, and Yugoslavia) to get aid in understanding and explaining the Ethiopian federalism. Abebe eloquently argues that, as the case with former Socialist federations, the original logic and the fundamentals of federalism in Ethiopia are linked to the ideological and political underpinnings of the TPLF/EPRDF. After giving a brief historical background to the Ethiopian state and its constitutional development in chapter three, Abebe discusses how the ideological and political convictions of the TPLF/EPRDF, in particular, the right to self-determination, revolutionary democracy, developmental state ideology, by party rules on gimgemma (party evaluation), democratic centralism, and neo-patrimonial mobilization, give impetus to the origin of ethnic federalism and permeate its experiment and operation. From chapter four to seven, not only does Abebe demonstrate how these political convictions perform constitutionalist functions by pushing the formal constitutional rules into the periphery, he also identifies the socio-political factors within which each of these political underpinnings arise and operate in the context of the party, TPLF/EPRDF, and the state. In the final chapter, he holds that the ideological framework of the ruling party not only challenges the consolidation of democratic institutions and creates a hostile atmosphere for the operation of civil society
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Books by Berihun Gebeye
Papers by Berihun Gebeye