AFRICAN HUMAN RIGHTS LAW JOURNAL

Interpreting rights globally: Courts

and constitutional rights in

emerging democracies

Nsongurua J Udombana*

Senior Lecturer, Department of Jurisprudence and International Law, University

of Lagos; Associate Professor of Law and Director of Human Rights Centre,

Central European University, Budapest; Visiting Lecturer, School of Law,

University of South Africa

Summary

Democracy has spread over Africa and with it new constitutions with justici-

able bills of rights have been accepted. The main focus of the article is on

constitutional interpretation and how a constitution should be interpreted

in view of the fact that a constitution, and especially the bill of rights, is not

only made up of clear-cut rules, but also of ideals and principles. Purposive

and creative interpretations are particularly needed in Africa's emerging

democracies. Creative constitutional interpretations are further enhanced

when courts engage in comparative constitutional analysis. The article

gives examples of how courts around the world have used comparative

case law. The author further defends the approach of comparative consti-

tutionalism in the light of the objections that have been raised against it.

While ultimately we must bear responsibility for interpreting our own laws,
there is much to learn from . . . distinguished jurists [in other places] who
1
have given thought to the same difficult issues that we face.

* LLB (Hons), LLM (Lagos); udombana@[Link] or udombanan@[Link]. This is an

expanded version of a paper delivered at a `S v Makwanyane' retrospective

conference, on 14 February 2005 at the University of South Africa. The views

expressed in this paper are those of the author and do not represent any other

authority.
1
SD O'Connor `Keynote address before the ninety-sixth annual meeting of the

American Society of International Law' (2002) 96 American Society of International Law

Proceedings 348 350.

47
48 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

1 Introduction: A brave new continent

Africa is currently experiencing momentous political and economic

transformation for the better and, sometimes, for the worse. What

was unthinkable yesterday, today has become reality. Until relatively

recently, Africa was a continent consisting of barricades and subjected

to various forms of evils, including the evils of colonialism, apartheid,

military coups d'eÂtat, and one-party dictatorships. In the last few dec-

ades, however, a cleft has opened in the pitiless walls of the continent,

allowing citizens to breathe the fresh air of freedom and to experience

constitutional and democratic governance. These positive changes are

due partly to the euphoria and hysteria of globalisation and liberalisa-

tion and partly to the `explosion of anger against the abuse of power,

violations of human rights, economic failure, and hardship, and a deep

2
longing for peace and order'.

à te
Regimes still totter and fall in a few African countries, notably Co

d'Ivoire, the Democratic Republic of Congo, Liberia, Sierra Leone and

Somalia. Togo might join these failed states Ð unless reason prevails

over passion Ð as some criminal elements in that country are trying to

suppress due constitutional process and popular sovereignty and foist a

dynasty on a country that has endured the late Gnassingbe Eyadema's

despotism for four decades, largely through guile, force and French

support. These setbacks notwithstanding, it may be said that the

wind of change is blowing where it wishes in Africa, with `the ballot

. . . increasingly replacing the bullet as a means of attaining political

3
power and maintaining legitimacy'. Democracy may not be a system

of government that embodies all the democratic ideals, but it is one

4
that approximates these ideals to a reasonable degree.

Following the demise of apartheid, South Africa exemplifies this brave

5
new continent. Apartheid was consigned to the ignominy of history

through the common identity and unity of purpose by segments of civil

6
society and international organisations. This paved the way for the

2
C Legum Africa since independence (1999) 56.
3
DM Ayine `Ballots as bullets? Compliance with rules and norms providing for the right

to democratic governance: An African perspective' (1998) 10 African Journal of

International and Comparative Law 709-10. See generally NJ Udombana `Articulating

the right to democratic governance in Africa' (2003) 24 Michigan Journal of

International Law 1209.

4
See A Lijphart Democracy in plural societies: A comparative exploration (1977) 4.
5
See The Prosecutor v Tadiñ para 622 Trial Chamber Judgment Case No IT-94-1-T

(7 May 1997).
6
Welcoming the vanquishing of apartheid in South Africa, the country's first elected

black President, Nelson Mandela, elatedly said: `That historic change has come about

not least because of the great efforts in which the United Nations [and the

Organization of African Unity] engaged to ensure the suppression of the apartheid of

crime against humanity.' Cited in United Nations Basic facts about the United Nations

(2000) 232.
INTERPRETATING RIGHTS GLOBALLY 49

institution of majority rule and a multi-party democracy in South Africa

in 1994, after `voters queued around the country for hours, and in some

cases, days to mark their ``X'' on the ballot papers', in an `election [that]
7
was a moment of national pride'.

One of the remarkable developments in these new democracies is

their constitution-making process, which has been inclusive and parti-

cipatory, allowing various groups to express their perceptions and con-

cerns before being channelled into a constitution. The 1993

Constitution of Ghana, for example, was brought into existence pur-

suant to a referendum in April 1992, which was a recognition that

sovereignty belongs to the people and that they must agree on the

content of the instrument meant to govern their lives.

The South African experience presents a sterling case study of a

democratic constitution-making process. As described by an `outside'

8
commentator, the Constitutional Assembly that was charged with

drafting the South African Constitution embarked upon a programme

of public participation, adopting a three-pronged approach Ð commu-

nity liaison, media liaison and advertising. It established a media depart-

ment that utilised print, radio, television, billboards and other

advertising strategies to attract public interest in the constitution-mak-

ing process. The media strategy also included the establishment of a

newsletter Ð Constitutional Talk Ð a telephone talk-line, and the crea-

tion of an internet home page. In the end, the Constitutional Court,

itself a creation of the Constitution, was given the `unusual' power to

decide whether the new constitutional text adopted by the Constitu-

tional Assembly complied with the constitutional principles contained

9
in the interim Constitution. The final Constitution came into force on

4 February 1997 after the Constitutional Court held, in December

1996, that the amended text complied with all the principles estab-
10
lished at Kempton Park. The constitution-making process in South

Africa has been `hailed not only as unique but as one of the most
11
democratic and inclusive constitution-making exercises in history'.

This inclusiveness has not been uniform in Africa. In some countries,

the constitution-making processes lacked inclusivity, diversity, participa-

tion, transparency, autonomy and accountability. Nigeria's 1999 Con-

7
K O'Regan `Human rights and democracy Ð A new global debate: Reflections on the

first ten years of South Africa's Constitutional Court' (2004) 32 International Journal of

Legal Information 200.

8
See JO Ihonvbere Towards a new constitutionalism in Africa (2000) 60.
9
See sec 71 of the interim Constitution of South Africa.
10
See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended

Text of the Constitution of the Republic of South Africa 1996, 1997 2 SA 97 (CC); 1997 1

BCLR 1 (CC).
11
J Sarkin `Innovations in the interim and 1996 South African Constitution' (1998) 60

The Review 57.

50 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

stitution, for example, was prepared and promulgated in great secrecy

by the military, led by the then caretaker head of state, General Abdul-

salami Abubakar. The drafting process Ð if, indeed, it was a process Ð

was largely non-consultative and non-transparent, thus making the `we

the people' clause in the Preamble a fraud. The legitimacy crisis that the

Constitution suffers from has led to repeated calls for a Sovereign

National Conference to address the concerns of the diverse nations

that make up Nigeria and to draw up a people's constitution. President

Obasanjo is unlikely to convene such a conference; instead, he is pro-

posing a National Political Reform Conference, the contents whereof

are yet to be grasped by Nigerians.

Another charade was the constitution-making process in Zimbabwe

where President Robert Mugabe, in response to campaigns by civil

society groups for a fully representative constitutional assembly tasked

with drawing up a new constitution, established a Constitutional Com-

mission (CC) pursuant to his powers under the Commission of Inquiry

Act. This executive action had two intended effects: First, it allowed

Mugabe to determine the size and make-up of the CC; and, second,

the CC was merely tasked with submitting a report with recommenda-

tions for a new constitution to a President who was under no obligation

12
to accept any or all of the recommendations. Yet, as Van der Vyer

warned, `a superimposed constitutional formulae or constitutional

arrangements that . . . do not address the real causes of discontent,

13
are sure to generate their own legitimacy crisis'. Experience has also

shown that ethnic conflicts in Africa are often the products of regimes

that promote feelings of exclusion within certain groups.

Meanwhile, the establishment of a Constitutional Court in South

Africa as the highest court of appeal in all constitutional matters has

produced dynamic constitutional litigation in the last decade, which is

parallel to none on the continent. The organisers of this conference

14
have chosen S v Makwanyane as a point of reference for reflection

on this development. However, since they have also graciously allowed

me to choose my own topic, I have chosen to address a larger but

related question of how a creative and global interpretation of consti-

tutional rights in Africa could assist in mainstreaming respect for the

values associated with those rights. This paper is also concerned with

redefining the role of the judiciary in Africa, particularly in emerging

democracies.

As this paper will later show, Makwanyane's case was remarkable for

12
See J Hatchard `Some lessons on constitution making from Zimbabwe' (2001) 45

Journal of African Law 210.

13
J van der Vyver `Constitutional options for post-apartheid South Africa' (1991) 40

Emory Law Journal 745 822.

14
S v Makwanyane 1995 3 SA 391 (CC).
INTERPRETING RIGHTS GLOBALLY 51

its invocation of international and comparative law. The question, of

course, is whether comparative constitutionalism is lawful and/or legit-

imate, since constitutions `are often the outcome of constituent pro-

cesses which can be defined in various ways and which are,

undoubtedly, influenced, on the one hand, by the historical, cultural,

philosophical and ideological background of the countries in question,

and, on the other, by contingent political, economic and diplomatic

15
factors'. I start by briefly noting the nature of rights guaranteed in

emerging democratic constitutions in Africa. Thereafter, I examine how

courts may translate these rights from the realm of rhetoric into practice

Ð through a creative interpretation that is also global or comparative.

Finally I present a conclusion.

2 The constitutionalisation of rights

Any approach to the protection of human rights in Africa must take the

constitution as its point of departure because a constitution is the foun-

dation of the legal system and a protocol of survival and continuity for

any social group, ensuring that no one attains salvation or offers a

programme of salvation to the populace by another route. It is a blue-

print of intra-governmental relations, setting forth the general para-

meters of executive, legislative and judicial powers and embodying

fundamental rights granted to individuals under the law. It provides

both a framework of government for a society in a continual process

of transition and a framework of fundamental principles of humanity

and respect for human rights to control and guide the exercise of all

governmental power. It provides a measure of rationality or consistency

16
in decision-making, both in relation to the individual and society.

The constitutions of most emerging democracies in Africa begin by

affirming faith in the universal values of justice, democracy, freedom,

equality and the dignity of the human person. Of course, this does not

mean that all constitutions share the same values, but each system

shares most of them. Section 1 of the South African Constitution, for

example, provides that the Republic of South Africa shall be founded,

inter alia, on the values of human dignity, the achievement of equality,

the advancement of human rights and freedoms, non-racialism and

non-sexism, the supremacy of the Constitution and the rule of law.

Similarly, the Preamble to the Constitution of Burundi affirms the

country's

15
V Piergigli `The reception of liberal constitutionalism and `universal' values in the

African bills of rights: Ambiguities and perspectives in the turn of the millennium'

[Link] (accessed 28 February 2005).

16
See BO Nwabueze Ideas and facts in constitution making (1993) 98.
52 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

. . . commitment to construct a political order and a system of government

inspired by . . . and founded on the values of justice, democracy, good
governance, pluralism, respect of the freedoms and basic rights of the indi-
vidual, unity, solidarity, mutual understanding, tolerance and co-operation
between the different ethnic groups . . .

Almost all of these constitutions contain lofty human rights provi-

17
sions. While some constitutions guarantee primarily only civil and

political rights, others guarantee economic, social and cultural rights

as well. Civil and political rights underscore the fact that the nature and

dignity of the human person have to be absolutely protected and indi-

cate the inviolable, imprescriptible and inalienable rights to be pro-

moted and protected by the state. Socio-economic rights have the

aim of giving people the possibility of receiving help from the state,

thus guaranteeing equality and social justice. Provisions guaranteeing

civil and political rights typically begin with a solemn declaration con-

cerning the principle of non-discrimination, that is, equality before the

law and equal protection under the law. Some writers believe that both
18
principles are strong candidates for inclusion among jus cogens.

The Constitution of South Africa, for example, expresses, in its Pre-

amble, the need for a `new order . . . in which there is equality between

people of all races . . .' Equality and non-discrimination are also the first

substantive rights protected in the country's Bill of Rights. Section 9 of

the Constitution provides:

1 Everyone is equal before the law and has the right to equal protection
and benefit of the law.
Equality includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative and other measures
designed to protect or advance persons, or categories of persons, dis-
advantaged by unfair discrimination may be taken.
3 The state may not unfairly discriminate directly or indirectly against any-
one on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
4 No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection (3). National legislation
must be enacted to prevent or prohibit unfair discrimination.
5 Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair.

Equality is a positive expression of non-discrimination. In Harksen v

19
Lane, the South African Constitutional Court held that section 9(1)

would be violated if a measure differentiates between categories of

17
For human rights provisions in constitutions of African states, see generally C Heyns

(ed) Human rights law in Africa (2004) 247 (discussing human rights protection

enshrined in laws of African countries).

18
See W Mckean Equality and discrimination under international law (1983) 279 282.
19
Harksen v Lane NO 1998 1 SA 300.
INTERPRETING RIGHTS GLOBALLY 53

people and the differentiation does not bear a rational connection to a

20
legitimate government purpose.

Beyond equality and non-discrimination, most constitutions guaran-

tee the right to life and personal integrity, the right to develop one's

personality (physically, morally, socially and culturally), freedom from

cruel and inhuman treatment and freedom from slavery or forced

labour. These provisions usually precede a detailed or concise list of

rights, such as the right to liberty and security of the person, freedom

of domicile, the right to respect for a person's correspondence, freedom

of movement and residence, freedom of expression and religion

(except for Islamic countries where Islam is the state religion), freedom

of assembly, demonstration and association, including the right to form

or join a political party or a trade-union as well as political and citizens'

rights.

However, certain rights that are often emphatically declared on the

basis of universal principles only exist on paper, due to the legal con-

straints that they are dependent on, constraints which are either vague

and indeterminate or, in contrast, extremely precise. Consequently,

rights previously declared in such a solemn manner are deprived of

any real meaning, a ready example being the fundamental right to

life Ð often implicit in Western constitutions. Various constitutions in

Africa Ð Equatorial Guinea, Ghana, Libya, Malawi, Nigeria, Seychelles

and Uganda Ð contain provisions on the death penalty which directly

or indirectly deny the right to life. The death penalty is permitted for

numerous reasons: as a sanction or if the life of a person constitutes a

danger to society or according to a law reasonably justified in a demo-

cratic society or to fulfil a death sentence imposed by a competent

court of justice or confirmed by the highest court of appeal.

The second class of rights usually protected in national constitutions

is social, economic and cultural rights. This is sometimes positioned

under a special title in the part of the constitution concerning freedoms

in general, as is the case in the Constitutions of Cape Verde, Madagas-

Äo Tome
car, Mozambique and Sa  and PrõÂncipe. In others, they are arbi-

trarily placed with civil and political rights and sometimes they are

positioned after them. Yet, in some African constitutions, such as that

of Nigeria, these `second generation' rights match the principles con-

cerning policy or the fundamental directives of the state. Those social

and economic rights that are protected in most constitutions include

family and labour rights, the right to health and to a healthy environ-

ment, the right of ownership (individual or collective), economic free-

dom and cultural rights. Some systems provide for claims so as to

eliminate sex discrimination deriving from historical customs and tradi-

tions and to guarantee equal political, social, economic and cultural

20
n 19 above, para 53.
54 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

rights, including labour rights and rights concerning personal matters.

Such is the case with the Constitutions of Chad, Egypt, Ethiopia, The

Gambia, Malawi, Namibia, South Africa and Uganda.

In the past, Africa's judiciary lacked institutional independence and

financial autonomy, with judges holding their offices at the sufferance

of the executive. Emerging constitutions contain formal commitments

to the independence of courts. Almost all constitutions are cast in nearly

the same mould, so that these guarantees are generally similar. But the

difference in structure between federal and unitary states results in

variations in procedures of judicial review and the organisation of the

judiciary. These constitutions are characterised by the following main

principles: due process of law, legislative authority over the administra-

tive structure of the judiciary, the obligation of the judiciary to uphold

the constitution and the law and its immunity from dismissal and inde-

pendence from the legislative and executive branches.

Some constitutions, such as those of Cape Verde and Ghana, contain

specific clauses on the independence of the judiciary. Others, such as

those of Benin, Central African Republic, Equatorial Guinea, Gabon,

Mali and Togo, refer to judges and constitutional courts as `the guar-

dians of fundamental freedoms' and mandate them to enforce funda-

mental rights. Seventeen constitutions designate the judicial power as

the `guardian of human rights', including, randomly, Algeria, Burkina

Faso, Burundi, Congo, Mali, Rwanda, Senegal and Togo. Other consti-

tutions, such as those of South Africa and Uganda, confer a right of

access to justice both on individuals and groups, thus mirroring the

21
African Charter on Human and Peoples' Rights (African Charter). In

some countries, like Benin, Central African Republic, Egypt and South

Africa, the Constitutional Court is independent and autonomous; but in

others, as in Burkina Faso and Nigeria, it is an appendage of the

Supreme Court. The guarantees under the Bill of Rights are protected

in some cases by enabling individuals to appeal to the Constitutional

Court or the Supreme Court against laws or public acts or omissions

believed to be detrimental to those rights. This is the case in Benin,

Burundi, Cape Verde, Central African Republic, Congo, Djibouti, Liberia

and Seychelles.

A number of countries, including Benin, Ghana, Mali, Namibia,

Nigeria, South Africa and Uganda, have established other institutions

to complement the judiciary, with the mandate to protect the public

from abuses by government and quasi-government bureaucracies.

These institutions, which are variously called Public Defender, Public

Complaint Commission or simply Ombudsperson, are also given inves-

21
African Charter on Human and Peoples' Rights, adopted on 27 June 1981 and entered

into force on 21 October 1986; Doc OAU/CAB/LEG/67/3/Rev 5, reproduced in (1982)

21 International Legal Materials 59.

INTERPRETING RIGHTS GLOBALLY 55

tigatory and prosecutorial powers and are expected to liaise with the

judiciary and other appropriate national institutions. Other countries Ð

like Ethiopia, Ghana, Nigeria, South Africa and Uganda Ð have estab-

lished national human rights institutions with the mandate to promote

and protect human rights and further the cause of social justice. Still

others, such as South Africa, have gender commissions to promote,

protect and uphold the fundamental tenets of gender equality.

It is not certain if the constitutionalisation of rights guarantees their

respect in practice, but it provides, at least, an important mechanism for

mainstreaming respect for the values that are associated with those

rights, both in law and in policy making. It provides the basis for hold-

ing governments accountable and provides an instrument for political

action and mass mobilisation. Meanwhile, the manner in which courts

interpret these rights goes a long way to mainstreaming the values

inherent in them.

3 Interpreting constitutional rights: Thinking global,

acting local

3.1 The Constitution as a living instrument

Much of the burden of realising constitutional rights in emergent

democracies in Africa rests on the shoulders of constitutional courts

Ð whatever their name tags Ð since these courts are the primary

guardians of the bill of rights. Whatever else may be their tasks in

interpreting and adjudicating constitutional rights, they certainly

include striking `a balance between the individual's freedom and the

22
right of the state to self preservation'. The state is far more powerful

than any individual and is endowed with `state authority' that gives it a

monopoly on the legitimate use of force within its territory. Being a

predator, the state must be contained if the individual is not to be

placed in an extremely vulnerable position. Plato saw the dangers of

unchecked power many centuries ago, when he wrote: `No human

being . . . is capable of having irresponsible control of all human affairs

23
without becoming filled with pride and injustice.'

Constitutionalism, then, is about limitations on the powers of a gov-

ernment. If democracy is a government of the people and if, as in

Africa, `the people' is the sovereign or whatever name that is fashion-

able to ascribe majority rule, then there has to be some limitations on

that sovereign power lest it ends in despotic majority absolutism. Many

democracies in the past believed that the `self-restraint of the majority'

would preserve the delicate balance between majority rule and respect

22
BO Nwabueze Judicialism in commonwealth Africa (1977) 139.
23
Plato The laws bk IV 713. C (RG Bury transl Leob Classical Library ed 1926).
56 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

for human rights, but the 20th century shattered this dream. The post-

World War II era has seen the emergence of written constitutions with

written bills of rights and an independent judiciary empowered to

enforce those rights; and the essence of judicial independence is the

power of judges to say `no' Ð `no' to legislators, presidents, governors,

municipal or local authorities, in short, `no' whenever `the needs of the

24
political moment clash with constitutional guarantees'.

A constitutional court must be policy-oriented, formulating and

articulating the values of general validity and acceptance within a

given society and infusing these values with meaning and vitality. It

must be guided at all times by national ideology Ð what the Germans

call the Volkgeist or national spirit. Unless the goals and the fundamental

attitudes and values that should inform the behaviour of its members

and institutions are clearly stated and accepted, Ben Nwabueze warns,

`a new nation is likely to find itself rudderless, with no sense of purpose

25
and direction'. While the decision of a constitutional court in a

democracy should serve the purpose of settling disputes between the

parties before it or correcting individual mistakes in lower court judg-

ments, its primary concern should be to elucidate, safeguard and

26
develop the values inherent in a constitution. According to Barak:

The supreme court's primary concern is broader, system wide corrective

action. This corrective action should focus on two main issues: bridging
the gap between law and society, and protecting democracy.

Interpreting constitutional rights involves, first, determining the mean-

ing and scope of a guaranteed right and, second, determining whether

a challenged law or conduct conflicts with the fundamental rights. In

determining the meaning and scope of guaranteed rights, a constitu-

tional court should constantly remind itself that a constitution is not a

document frozen in time but is a living instrument to be applied to the

changing needs of a society still in the process of maturation. A con-

stitution, like law, is not merely composed of a closed set of clear-cut

rules, but deals with lofty ideals and principles. They lay down, in the

words of Ronald Dworkin, `general, comprehensive moral standards

that government must respect but . . . leaves it to statesmen and judges

27
to decide what these standards mean in concrete circumstances'.

Similarly, constitutional rights are not formulated as detailed set of

rules designed to deal with specific, envisaged situations.

24
The Hon MH Marshall `Speech: ``Wise parents do not hesitate to learn from their

children'': Interpreting state constitutions in an age of global jurisprudence' (2004)

79(5) New York University Law Review 1633 1639.

25
Nwabueze (n 22 above) 140.
26
A Barak `The Supreme Court, 2001 term-forward, a judge on judging: Role of a

Supreme Court in a democracy' (2002) 116 Harvard Law Review 16 27-28.

27
R Dworkin Life's dominion: An argument about abortion, euthanasia and individual

freedom (1993) 119.

INTERPRETING RIGHTS GLOBALLY 57

Constitutional rights must be interpreted in such a way that they

28
trump governmental interest, for the simple reason that human rights

protect not only the individual in a democracy but democracy itself. A

constitutional court must not be very positivistic or legalistic in its atti-

tude, but must go to the spirit of the law in the defence of human rights

and human beings. Although a court should seek logical consistency

and the symmetry of the legal structure and should not lightly sacrifice

certainty, uniformity, order and coherence on the altar of judicial dex-

terity, it is incorrect to assert that judges can extract the meaning of

29
constitutional provisions from legal materials alone. Human rights are

not merely legal rights; they are also moral rights, and moral decisions

do not admit of mathematical certainty. A constitutional court may be,

30
in the words of Hans Kelsen, `a negative legislator'; but it is a legislator

nonetheless and it must look for openings and create jurisprudence Ð

through a creative interpretation of constitutional rights.

The South African Constitutional Court contributed remarkably to the

elaboration of general principles on constitutional interpretation that is

worth noting. The Makwanyane case provides a point of departure. In

that case, the Constitutional Court adopted a liberal and creative

31
approach to the interpretation of the Bill of Rights, when it stated:

Whilst paying due regard to the language that has been used, [an interpreta-
tion of the Bill of Rights should be] `generous' and `purposive' and `give . . .
expression to the underlying values of the Constitution'.

This principle was put to a decisive but controversial use in S v

32
Mhlungu, when the majority of the Constitutional Court allowed per-

sons involved in cases pending at the commencement of the Constitu-

tion to rely on rights in the interim Bill of Rights, despite the apparent
33
provision in the Constitution to the contrary. According to the
34
Court:

28
See R Dworkin Taking rights seriously (1977) ch 7 (arguing that rights are `trumps' held

by individuals that outweigh collective goals).

29
Traditional constitutional courts assert that the constitutions themselves and domestic

commentaries are the sole bases for the analysis and interpretation of their

constitutions. See PJ Smith `States as nations: Dignity in cross-doctrinal perspectives'

(2003) 89 Vanderbilt Law Review 1 21.

30
Cited in AS Sweet Governing with judges: Constitutional politics in Europe (2000) 35.

Kelsen defines a `negative legislator' as one who cannot make law freely because the

decision making is `absolutely determined by the constitution'.

31
Makwanyane (n 14 above) para 9.
32
S v Mhlungu 1995 3 SA 867 (CC).
33
See sec 241(8) of the Constitution of South Africa 1996: `All proceedings which

immediately before the commencement of this Constitution were pending before any

court of law, including any tribunal or reviewing authority established by or under

law, exercising jurisdiction in accordance with the law then in force, shall be dealt with

as if this Constitution had not been passed.'

34
Mhlungu (n 32 above) para 9.
58 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

An interpretation which withholds the rights guaranteed by chapter 3 of the

[interim] Constitution from those involved in proceedings which fortuitously
commenced before the operation of the Constitution would not give to that
chapter a construction which is `most beneficial to the widest amplitude' and
should therefore be avoided if the language and context of the relevant
sections reasonably permits such a course.

Nigeria's Supreme Court also has laid down a principle for constitu-

tional interpretation in a number of cases, notably Nafiu Rabiu v The

35 36
State, where Justice Udo-Udoma stated:

My Lords, it is my view that the approach of this Court to the construction of

the Constitution should be, and so it has been, one of liberalism, probably a
variation on the theme of the general maxim ut res magis valeat quam pereat.
I do not conceive it to be the duty of this Court so to construe any of the
provisions of the constitution as to defeat the obvious ends the Constitution
was designed to serve where another construction equally in accord and
consistent with the words and sense of such provisions will serve to enforce
and protect such ends.

These are encouraging signals. Purposive and creative interpretations of

constitutional rights are particularly needed in Africa's emergent

democracies to help governments understand their legal obligations,

the positive consequences for implementing those obligations, and

negative ones for non-compliance. All genuine interpretation is neces-

sarily creative, that is, it is `a matter of interaction between purpose and

37
object'. Creative interpretation is also constructive, in that it imposes

`purpose on an object or practice in order to make of it the best possible

38
example of the form or genre to which it is taken to belong'.

3.2 Interpreting rights globally

Creative constitutional interpretations are enhanced when courts think

global and act local, that is, when judges engage in comparative con-

stitutional analysis. Comparative constitutionalism is `emphatically . . .

relevant to the task of interpreting constitutions and enforcing human

39
rights' and can be `helpful in the quest for a theory of the public good
40
and right political order'. It could help one to understand what the

law is and to understand one's constitutional traditions better. It could

provide guidance, perspective, inspiration or reassurance for judges and

may help in elucidating different functional concerns to similar

35
Nafiu Rabiu v The State (1980) FRN 509.
36
n 35 above, 519.
37
R Dworkin Law's empire (1986) 52.
38
As above.
39
RB Ginsburg & DH Merritt `Fifty-first Cardozo Memorial Lecture: Affirmative action: An

international human rights dialogue' (1999) 21 Cardozo Law Review 253 282.
40
DP Kommers `The value of comparative constitutional law' (1976) 9 John Marshall

Journal of Practice and Procedure 685 692.

INTERPRETING RIGHTS GLOBALLY 59

questions and in strengthening the quality of judicial decisions, by pro-

41
viding a benchmark against which such decisions can be judged.

There is an emerging trend in many jurisdictions towards an extra-

territorial interpretation of constitutional rights that is both dynamic

and edifying. Some countries' constitutions, such as those of Angola,

Cape Verde, Malawi and South Africa, expressly enjoin their courts to

invoke international and comparative law. Section 21(2) of the Consti-

tution of Angola and section 17(3) of the Constitution of Cape Verde

provide that constitutional and legal norms related to fundamental

rights shall be interpreted and incorporated in the light of international

instruments. Section 11(2) of the Constitution of Malawi enjoins the

judiciary to `have regard to current norms of public international law

and comparative law.' Section 36 of the Constitution of South Africa

1996 requires any limitation of a fundamental right to be `reasonable

and justifiable in an open and democratic society based on freedom,

equality and human dignity.' Section 39(1) further provides:

When interpreting the Bill of Rights, a court, tribunal or forum Ð

(a) must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.

The jurisprudence of the South African Constitutional Court reveals a

dynamic bent towards a global interpretation of rights. As the Court

explained, again in Makwanyane's case, `[i]nternational agreements and

customary international law provide a framework within which . . . [the

42
Bill of Rights] can be evaluated and understood' and these include both
43
binding and non-binding public international law. The Makwanyane case,

itself, provides a classic example of the Court's invocation of international

and comparative law; the Court assumed that an expansive comparative

constitutional analysis was necessary in determining the constitutionality of

the death penalty. The Court went on to discuss decisions from courts in the

United States, Canada, Hungary, India, the European Court of Human

Rights as well as the UN Committee on Human Rights, and concluded

that the death penalty was unconstitutional for being cruel and inhumane.
44
In S v Williams Ð the corporal punishment case Ð the Constitutional

Court noted a `growing consensus in the international community' that

judicially imposed whipping `offends society's notions of decency and is a

45
direct invasion of the right which every person has to human dignity'.

41
See VC Jackson `Narratives of federalism' (2001) 51 Duke Law Journal 223 254-63.
42
Makwanyane (n 14 above) paras 36-7.
43
O'Regan (n 7 above) 207 writing: `Like many South African courts before us, we find

international law and comparative law most helpful in our jurisprudence. There is an

emerging dialogue across continents and nations concerning democracy and human

rights and we engage this dialogue in the development of our own Constitution in our

own specific context.'

44
S v Williams 1995 7 BCLR 861 (CC).
45
n 44 above, para 39.
60 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

The Court even drew upon decisions of sister institutions in Africa, to wit

the Supreme Courts of Namibia and of Zimbabwe, wherein these courts

held that corporal punishment constitutes inhuman or degrading pun-

46 47
ishment. In S v Ephraim, the Court ruled that `abduction [violates]
48
the applicable rules of international law'.

The ruling in S v Ephraim was particularly important when contrasted with

the practice in the United States in which an officer may, in the absence of an

express ban treaty, abduct a foreigner and forcibly transport him to the US

to stand trial. The US Supreme Court approved such a practice in United

49
States v Alvarez-Machain, largely because of its traditional reluctance to

apply comparative constitutional analysis in interpreting the US Constitu-

50
tion. Even as late as 1997, Justice Scalia wrote: `Comparative analysis [is]

inappropriate to the task of interpreting a constitution, though it was of

51
course quite relevant to the task of writing one.' Ackerman agreed,

arguing that the `spirit of the American Constitution requires limiting the
52 53
scope of inquiry to American sources'. Ackerman continued:

To discover the Constitution, we must approach it without the assistance of

guides imported from another time and place. Neither Aristotle nor Cicero,
Montesquieu nor Locke, Harrington nor Hume, Kant nor Weber will provide
the key. Americans have borrowed much from such thinkers, but they have
also built a genuinely distinctive pattern . . . As we lose sight of these ideals,
the organising patterns of our political life unravel.

In recent years, however, the US Supreme Court has tried to redeem

itself from this `frozen-in-time' approach to interpretation, and Amer-

ican scholars and justices now freely discuss the merits of a comparative
54 55
approach to a constitutional question. Thomson v Oklahoma was

46
n 44 above, paras 31-32 34.
47
S v Ephraim 1991 2 SA 553 (A).
48
n 47 above, 568.
49
See United States v Alvarez-Machain (1992) 504 US 655 670.
50
See Barak (n 26 above) 114 (stressing the reluctance of the US Supreme Court in invoking

comparative law); C Moon `Comparative constitutional analysis: Should the United States

Supreme Court join the dialogue?' (2003) 12 Journal of Law and Policy 229 240.
51
Printz v United States (1997) 521 US 898 921 n 11; A Scalia `Commentary' (1996) 40

St Louis University Law Journal 1119 (arguing that `international norms' should not

control adjudication of domestic issues in the US courts).

52
B Ackerman We the people: Foundations (1991) 3.
53
n 52 above, 3-4 6.
54
See eg SD O'Connor `Remarks at the ninety-sixth annual meeting of the American

Society of International Law' (2002) 96 American Society International Law Proceedings

350 (`Conclusions reached by other countries and by the international community

should at times constitute persuasive authority in American courts'); WH Rehnquist

`Constitutional courts Ð Comparative remarks' in P Kirchhof & DP Kommers (eds)

Germany and its basic law: Past, present and future Ð A German-American symposium

(1993) 411 412 (`Now that constitutional law is solidly grounded in so many countries, it

is time that the United States courts begin looking to the decisions of other constitutional

courts to aid in their own deliberative process.').

55
Thomson v Oklahoma (1988) 487 US 815.
INTERPRETING RIGHTS GLOBALLY 61

one of the pioneer cases in this regard. In that case, a majority of the

Supreme Court found that the execution of a 15 year-old would violate

the Eight Amendment's prohibition against cruel and unusual punish-

ment, arguing that:

The conclusion that it would offend civilised standards of decency to execute

a person who was less than 16 years old at the time of his or her offence is
consistent with the views that have been expressed by respected professional
organisations, by other nations that share our Anglo-American heritage, and
by the leading members of the Western European community.

Since then, the Supreme Court has warmly embraced the influence of

globalisation in American constitutional jurisprudence, for example, in

56
Grutter v Bollinger, in which Justice Ginsburg referenced `the interna-

tional understanding' concerning the duration of affirmative action

57
programme; Washington v Glucksburg, in which Justice Rehnquist,

writing for the majority, provided as relevant background a lengthy

footnote concerning foreign court decisions on the constitutionality

58
of bans on assisted suicide; and Thompson v Oklahoma, in which

the Court stressed the relevance of international views on the death

59
penalty. Others are Lawrence v Texas, in which its Supreme Court

struck down a law criminalising homosexuality as a violation of the

60
Fourteenth Amendment, citing Dudgeon v United Kingdom, a 1981

European Court of Human Rights decision that struck down the United
61
Kingdom's criminal sodomy laws; and Atkins v Virginia, in which Jus-

tice Stevens, writing for the majority, noted that executing the mentally

retarded is a practice that has been `overwhelmingly disapproved' by

62
the `world community', a fact which, according to him, supports the

conclusion that such executions are prohibited by the Eighth Amend-

63
ment, being `cruel and unusual punishments'.

There is, indeed, a global cross-pollination of human rights, as many

courts in other jurisdictions frequently cite decisions of international

human rights tribunals that do not even have jurisdiction over them.
64
Examples include the Australian case of Leask v Commonwealth, in

which Justice Toohey cited the European Court of Human Rights' deci-
65
sion in Soering v United Kingdom, concerning extradition to a country

permitting the use of the death penalty; the Canadian case of United

56
Grutter v Bollinger (2003) 539 US 306.
57
Washignton v Glucksburg (1997) 521 US 702 718 n 16.
58
Thompson v Oklahoma 487 US 815 830-31.
59
Lawrence v Texas (2003) 539 US 558.
60
Dudgeon v United Kingdom (1981) 45 Eur Ct HR Ser A.
61
Atkins v Virginia (2002) 536 US 304.
62
n 61 above, 316 n 21.
63
As above, 307 321.
64
Leask v Commonwealth (1996) 187 CLR 579 615-16.
65
Soering v United Kingdom (1989) 161 Eur Ct HR Ser A.
62 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

66
States v Burns, which also cited Soering v United Kingdom; and the
67
Hong Kong case of Shum Kkwok Sher v HKSAR, in which that country's
68
Court of Final Appeal cited Hashman & Harrup v United Kingdom,

concerning the specificity requirement of laws constraining freedom

of speech. These courts also consult the jurisprudence of other munici-

69
pal courts in constitutional interpretations. In The Queen v Keegstra,

for example, the Canadian Supreme Court considered whether the

Canadian criminal code could prohibit hate speech. In interpreting

the Charter of Rights and Freedoms, the Court turned to American

jurisprudence as well as international human rights law for assistance.

Chief Justice Dickson justified such an approach by asserting that `inter-

national human rights law and Canada's commitments in that area are

of particular significance in assessing the importance of parliament's

70
objective'.
71
In the Australian case of Mabo v Queensland [No.2], the High Court

Ð the country's highest court Ð rejected, by a six to one majority, the

doctrine of terra nullius, supporting its holding not only with the deci-

sion of the International Court of Justice but also with decisions from
72
Nigeria, Canada, India, New Zealand and the United States. In
73
another case, Australia Capital Television Pty v Commonwealth, the

Court held as unconstitutional an Act allowing the government to

pass legislation limiting or restricting the freedom of communication

and broadcasting rights. In arriving at its decision, the Court looked to

decisions from Canada, England, the US and the European Court of

74
Human Rights.

Refreshingly, a few other constitutional courts in Africa also partici-

75
pate in this international dialogue. In Mwellie v Ministry of Works, for

example, the Constitutional Court of Namibia considered decisions

from India, US, Canada, England, Malaysia, South Africa and the Eur-

opean Court of Human Rights. Indeed, Africa's transitional judiciaries

have managed to produce a corpus of constitutional case law, though

not many of them are active participants in the comparative constitu-

66
United States v Burns [2001] 1 SCR 283 para 53.
67
Shum Kkwok Sher v HKSAR [2002] 2 HKLRD 793.
68
Hashman & Harrup v United Kingdom (1999) Eur Ct HR Ser A.
69
The Queen v Keegstra [1990] 3 SCR 697.
70
n 69 above, 749-50. See generally L LeBel & G Chao `The rise of international law in

Canadian constitutional litigation: Fugue or fushion? Recent developments and

challenges in internalising international law' (2002) 16 Supplement Constitutional Law

Review 23 45; GV la Forest `The expanding role of the Supreme Court of Canada in

international law issues' (1996) 34 Canadian Yearbook of International Law 89 90-91.

71
Mabo v Queensland [No 2] (1992) 175 CLR 1.
72
n 71 above, 40 48 83-83 123-24 137 164-65.
73
Australia Capital Television Pty v Commonwealth (1992) 177 CLR 106.
74
n 73 above, 107 168-69.
75
Mwellie v Ministry of Works [1995] 4 LRC 184.
INTERPRETING RIGHTS GLOBALLY 63

tional dialogue. Some are not even aware of the existence of many

international human rights tribunals, let alone draw inspiration from

their dynamic and rich jurisprudence.

76
The celebrated Nigerian case of Abacha v Fawehinmi reveals a gratu-

itous ignorance of international human rights jurisprudence on the part of

some of the Supreme Court justices. Among the issues for determination

was included the question whether a treaty incorporated into the laws of

Nigeria has a status higher than, and superior to, other municipal laws

and what, in particular, was the relationship between the African Charter

and the Nigerian Constitution and between the Charter and other muni-

cipal laws. The Supreme Court agreed with the Court of Appeal that the

African Charter (Domestication Act) is a statute with international flavour

and that if there is a conflict between it and another statute, the provisions

of the Charter prevail over that other statute, based on the presumption

that the legislature does not intend to breach an international obliga-

77
tion. The Court, however, held that the African Charter is not superior

to the Constitution and that the National Assembly has the power to
78
remove a treaty from the body of its municipal laws.

In a passage that remains highly embarrassing, Justice Belgore Ð the

most senior member of the Nigerian Supreme Court justices Ð said, in

his concurring judgment: `There is provision in the [African] Charter for

a Commission to be set up, but since 19th January 1981 when the

Charter was made in Banjul, The Gambia, no Commission has been

79
set up.' This statement was made on 28 April 2000. One wonders if

the learned justices might have reasoned differently if they knew that an

African Commission on Human and Peoples' Rights had been in exis-

80
tence for more than 12 years prior to the Fawehinmi case and that the

Commission had developed a pool of jurisprudence on human rights.

The African Commission itself is involved in international dialogue

aimed at giving life and force to the African Charter. In interpreting

81
the Charter, the Commission is enjoined to:

draw inspiration from international law on human and peoples' rights, the
Charter of the United Nations, the . . . [Constitutive Act of the African Union],
the Universal Declaration of Human Rights, other instruments adopted by
the United Nations and African countries in the field of human and peoples'
rights, as well as from the provisions of various instruments adopted within
the specialised agencies of the United Nations of which the parties to the
present Charter are members.

76
See Abacha v Fawehinmi [2000] FWLR (Pt 4) 533.
77
n 76 above, 586.
78
As above.
79
n 76 above, 595.
80
The Commission was established and inaugurated in 1987 `to promote human and

peoples' rights and ensure their protection in Africa'; art 30 African Charter.
81
Art 60 African Charter.
64 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

By placing reliance on international human rights jurisprudence, the

Commission has succeeded in extending the paradigm of human rights

in Africa to the basic needs of peoples, thereby departing from the

original paradigm. In The Social and Economic Rights Action Center and
82
the Center for Economic and Social Rights v Nigeria, for example, the

Commission created a right to housing in the African Charter even in

83
the absence of an express guarantee. According to the Commission:

Although the right to housing or shelter is not explicitly provided for under
the African Charter, the corollary of the combination of the provisions pro-
tecting the right to enjoy the best attainable state of mental and physical
health, cited under article 16 above, the right to property, and the protection
accorded to the family forbids the wanton destruction of shelter because
when housing is destroyed, property, health, and family life are adversely
affected. It is thus noted that the combined effect of articles 14, 16 and 18(1)
reads into the Charter a right to shelter or housing . . .

3.3 Points of discord

The question that begs for an answer is whether comparative constitu-

tionalism can be justified in the absence of an express authorisation.

What is more, is it lawful and legitimate for transitional judiciaries to

invoke international and comparative law in interpreting constitutions

that are products of different cultural and historical developments?

Comparative constitutionalism is met with the objection that it opens

the floodgate to the application of laws that were born to different

countries in different ages and in very different circumstances. Oppo-

nents of comparative constitutionalism insist that it upsets the accul-

turation of a society through the legislative process; that it is wrong to

disaggregate legislation from its cultural instantiation, since laws are

84
imbedded in the culture of a people. They appeal to Montesquieu,

who argued that laws `should be adapted in such a manner to the

people for whom they are made, as to render it very unlikely for
85
those of one nation to be proper for another'.

Comparative constitutionalism, according to its opponents, also

raises serious questions of democratic legitimacy. Modern liberal

democracies tend to justify judicial authority in terms of the rule of

law; and the rule of law produces an argument for `legislative sover-

82
See eg Communication 155/96 Social and Economic Rights Action Centre v Nigeria

Fifteenth Annual Activity Report Annex V (SERAC case).

83
n 82 above, para 60.
84
See D Childress III `Using comparative constitutional law to resolve domestic federal

questions' (2003) 53 Duke Law Journal 193 217 219 (arguing, incorrectly, that `[e]ach

legal system is autonomous and is perhaps incapable of legal transplant. Any

transplant would be a rejection of the organic law that is part of that society and

culture').
85
C de Secondat `Baron de Montesquieu' in DW Carrithers (ed) The spirit of the laws bk 1

ch 3 104-05 (1977) (1748).

INTERPRETING RIGHTS GLOBALLY 65

86
eignty in its narrowest and least reflective sense'. Others fear the

danger that judicial comity may one day require that a country's con-

stitutional court or Supreme Court reach a decision that is not in that

87
country's best interest.

These objections are true; but they do not represent the whole truth.

Of course, a judge should necessarily take the history and changing

conditions of his community as his point of departure in interpreting

a constitution. He should, however, not stop there; he should pay

attention to legal developments in the rest of the world and to their

role in keeping their countries in step with these developments, realis-

ing, as the United States (US) Supreme Court did Ð in Lawrence v

88 89
Texas Ð that:

[T]imes can blind us to certain truths and later generations can see that laws
once thought necessary and proper in fact serve only to oppress. As the
Constitution endures, persons in every generation can invoke its principles in
their own search for greater freedom.

There are several reasons why comparative constitutionalism is legiti-

mate and imperative. The first is that the language of human rights is

global, spoken by political leaders and ordinary citizens alike. This is

because of the rediscovery that humanity is confronted with basically

common issues. Dr Samuel Johnson wrote many years back that people

everywhere are prompted by the same motives, deceived by the same

fallacies, all animated by hope, obstructed by danger, entangled by

90
desire, and seduced by pleasure. It is naõ
Ève, in the light of this redis-

covery, for judges to expect the breeze of globalisation to pass them by.

No institution of government can afford to ignore the rest of the world;

and that includes the courts.

A second but related justification is that, despite the differences in the

historical development or the conceptual structure and style of opera-

tion that exist in different legal systems, these systems give the same or

similar solutions to the problems of life. The bills of rights in Africa are

generally composed in a very similar manner to those of the Western

world and bear, in particular, the imprimatur of the Universal Declara-

91
tion of Human Rights of 1948 (Universal Declaration). These consti-

tutions rest, to borrow Weinrib's words, `on a shared constitutional

conception that, by design, transcends the history, cultural heritage,

86
C Harlow `Voices of difference in a plural community' (2002) 50 American Journal of

Comparative Law 339 341.

87
See Moon (n 50 above) 245.
88
Lawrence v Texas (2003) 123 S Ct 2472.
89
n 88 above, 2482.
90
See BH Bronson (ed) Samuel Johnson: Rasselas, poems, and selected prose (1971) 95.
91
Universal Declaration of Human Rights, adopted on 10 December 1948; GA Res 217 A

(III) GAOR 3d Sess.

66 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

92
and social mores of any particular nation-state'. Thus, nearly all coun-

tries in Africa assume a model that basically draws from those of liberal
93
democracies, at least from a formal point of view.

The values that underpin modern constitutions Ð justice, democ-

racy, freedom, equality and the dignity of the human person Ð share

a multinational history and universal acceptance; they are standards for

sound constitutional structuring, making it imperative for constitutional

courts and lawyers to be comparatists. Dignity, for example, is the

common denominator of our very humanity and is `above all price

94
and so admits of no equivalent'. The Universal Declaration also pro-

vides that `[a]ll human beings are born free and equal in dignity and
95
rights' and almost all other international human rights instruments

contain similar provisions. A state cannot use its particular national or

religious tradition as justification for its failure to respect human dignity;

neither could such failure be justified `in the name of majoritarian poli-
96
tical processes'.

Dignity is a central value that animates the South African Constitu-

tional Court's interpretation of the Bill of Rights. Section 39(a) of the

South Africa Constitution provides that interpretation of the Bill of

Rights `must promote the values that underlie an open and democratic
97
society based on human dignity, equality and freedom'. Justice O'Re-
98
gan stressed as much, in Makwanyane's case, when she held:

Respect for the dignity of all human beings is particularly important in South
Africa. For apartheid was a denial of a common humanity. Black people were
refused respect and dignity and thereby the dignity of all South Africans was
diminished. The new Constitution rejects this past and affirms the equal
worth of all South Africans. Thus recognition and protection of human
dignity is the touchstone of the new political order and is fundamental to
the new Constitution.

It is self-defeating for African judges to stick to an unchanging line in a

radically changed world. Convergence, not divergence, has been the

mega-trend since the early 1980s and beyond. Our judges should pro-

92
LE Weinrib `Constitutional conceptions and constitutional comparativism' in V Jackson

& M Tushnet (eds) Defining the field of comparative constitutional law (2002) 3 15.
93
See Piergigli (n 15 above) (noting exceptions in constitutional provisions concerning

torture or slavery and forced labour, that is, practices that are either autochthonous or

related to the colonial period).

94
HE Jones Kant's principle of personality (1971) 127.
95
Art 1 Universal Declaration.
96
H Botha `Comparative law and constitutional adjudication' (unpublished but on file

with author).
97
See also Makwanyane (n 14 above) para 144 (where the Constitutional Court

described the rights to life and dignity as `the most important of all human rights, and

the source of all other personal rights' in the Bill of Rights); and generally A Chaskalson

`Human dignity as a foundational value of our constitutional order' (2000) 16 South

African Journal on Human Rights 193.

98
Makwanyane (n 14 above) para 329.
INTERPRETING RIGHTS GLOBALLY 67

mote judicial comity, by opening their minds to new approaches, mind-

ful that `other legal systems continue to innovate, to experiment, and to

find new solutions to the new legal problems that arise each day, from
99
which we can learn and benefit'. They should use their best skills and

judgment to fit human rights law to the new challenges that an evol-
100
ving democratic society leaves at the doors of their courthouses.

Human rights law can only develop if its jurisprudence is a dialogue

rather than a monologue; and, if applied more frequently, African

courts could use international and comparative norms to make justici-

able many of the socio-economic rights that some African constitutions

regard as mere fundamental objectives and directive principles of state

policies.

Of course, constitutional interpretation must be system-specific, as

unscientific juridical comparison will yield very limited results. The South

African Constitutional Court, for example, is keenly aware of this danger

and has repeatedly stressed that, in the final analysis, it is the South

African Constitution that must be interpreted and that its provisions

101
must be placed within the context of South African society. In the

Makwanyane case, for example, the Court held in balance its references

to foreign jurisprudence with its reliance on the indigenous African

concept of ubuntu, which was taken to signal values of respect, dignity,

102
compassion and solidarity. Constitutional courts must also maintain

uniformity and predictability, so that litigants and advocates alike can

rely on the continued application of the same rules. As Cody Moon

pointedly asks, `When one constitutional court decides an issue one

way and another reaches a different conclusion, who determines

103
which court is correct?'

A final point to stress is that advances in information and commu-

nication technologies (ICTs) have, undoubtedly, aided the global cross-

pollination of human rights, making decisions of international and con-

stitutional courts only a mouse click away. The internet affords access to

foreign judicial decisions and law journals contain all manners of com-

mentaries. African judges should acquaint themselves with, and avail

themselves of, the opportunities that the ICTs have opened up to the

international community. These, of course, have their limitations; but

therein lie the challenges. Every court must determine for itself the

99
SD O'Conner `Broadening our horizon: Why American judges and lawyers must learn

about foreign law' International Judicial Observer June 1997 2, cited in RB Ginsburg

`Looking beyond our borders: The value of a comparative perspective in constitutional

adjudication' (2004) 22(2) Yale Law and Policy Review 329 337.
100
See JS Kaye `Delivering justice today: A problem-solving approach' (2004) 22(1) Yale

Law and Policy Review 125.

101
See eg Williams (n 44 above) paras 50 51.
102
Makwanyane (n 14 above) paras 130-31 223-27.
103
Moon (n 50 above) 245.
68 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

acceptable uses of ICTs and must test and retest new ideas, retain and

refine what is good and reject what is bad, recognising, as Benjamin

Cardozo did, that `in the endless process of time, there is a constant

rejection of the dross, and a constant retention of whatever is pure and

104
sound and fine'.

4 Conclusion

105
O'Regan writes:

The challenge of building one nation and one economy in which all South
Africans may participate and from which all may benefit remains a major
challenge for the short, medium and perhaps even long-term.

This is also the challenge facing almost all emerging democracies in

Africa, including Ghana, Kenya, Nigeria, Uganda, Zambia and Zim-

babwe. In these countries, the wealth of nations has become the pov-

erty of peoples due, largely, to corruption and mismanagement of

national resources. Politics is still a freak-show in Africa, rather than

deliberative democracy. Recycled politicians are busy fattening their

bank accounts, with voices of pleasure pouring out their notes on

every side. On such systems as these the electorates matter little Ð

they are foam on waves.

In the meantime Ð and probably in the long run as well Ð transi-

tional judiciaries in Africa should expound African constitutions with

106
Africa's ugly past and present challenges in mind. They should

draw upon international and comparative law to assert their institu-

tional authority and should `abandon their longstanding insularity

107
and inertia in matters of jurisprudential innovation and borrowing'.
108
Since the final cause of law is the welfare of society, African judges

should devote themselves towards this end rather than being defenders

of the status quo. Most courts in the past, including those of South

Africa, were passive instruments of legitimating authoritarian regimes.

The dying dynasty of dictators on the continent presents present courts

with golden opportunities to develop constitutionalism, by enforcing

limitations on the exercise of governmental power, exercising their

powers of judicial review to advance and deepen the transition to con-

stitutional democracy, and, above all, protecting human rights through

comparative constitutionalism.

104
B Cardozo The nature of the judicial process (1921) 179.
105
O'Regan (n 7 above) 201.
106
OW Holmes Jr The common law (1881) 1 (`The life of the law has not been logic; it has

been experience').
107
HK Prempeh `A new jurisprudence for Africa' (1999) 10(3) Journal of Democracy 135

146.
108
See Cardozo (n 104 above) 62.
INTERPRETING RIGHTS GLOBALLY 69

The Constitutional Court, the Bar and similar institutions in South

Africa have helped, and continue to help, the nation and the people

in surviving an unprecedented wicked and oppressive era in their his-

tory. Such a remarkable achievement within such a limited time frame is

worth celebrating; but as we celebrate, let us remind ourselves that, in

the general condition of human life in Africa, there is much more to be

endured than enjoyed. There is still a wide gap between promise and

performance, that is, between rights guaranteed in bills of rights and

their actual enjoyments by the intended beneficiaries. The following

lines from Abigail Adams are as relevant for us today as they were

when she first wrote them to her son during the era in which he was
109
coming of age:

These are the times in which a genius would wish to live. It is not in the still
calm of life, or the repose of a pacific station, that great characters are
formed. The habits of a vigorous mind are formed in contending with diffi-
culties.

Our consolation should be that we are not alone in sharing our past

pains, our present concerns and our future challenges. Let us look to the

next decade with optimism, which is the motor that drives hope but

without which there would only be the despair that fulfils its own pro-

phecy of doom.

109
`Letter from Abigail Adams to John Quincy Adams' quoted in D McCullough John

Adams (2001) 226.