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This page intentionally left blank COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH The central role that good, effective and capable governance plays in the economic and social development of a country is now widely recognised. Using the Commonwealth countries of eastern and southern Africa (the ESA states) as the basis for discussion, this book analyses some of the key constitutional issues in the process of developing, strengthening and consolidating the capacity of states to ensure the good governance of their peoples. Utilising comparative material, the book seeks to draw lessons, both positive and negative, about the problems of constitutionalism in the region and, in doing so, critically addresses the legal issues involved in seeking to make constitutions ‘work’ in practice. John Hatchard is Visiting Professor of Law at The Open University and General Secretary of the Commonwealth Legal Education Association. He is Joint Editor of the Journal of African Law.Hehaslivedandworkedin Africa for many years and has held senior positions on the law faculty at both the University of Zambia and University of Zimbabwe. Muna Ndulo is Professor of Law at the Cornell Law School and Director of the Institute for African Development in the University. He was formerly Professor of Law and Dean of the School of Law, University of Zambia and Director of the Law Practice Institute of the Council of Legal Education in Zambia. He has served as Legal Officer, United Nations Commission on International Trade Law. He has worked on elections and political trans- formation in several countries. He was Chief Political Adviser to the Special Representative of the UN Secretary General for South Africa and Head of the United Nations Mission in South Africa, Chief Legal Adviser, United Nations Mission to East Timor and Legal Officer with United Nations Mission in Kosovo. Peter Slinn is Director of the Diplomacy Programme at the School of Oriental and African Studies, University of London and adjunct Profes- sor of Law, University of Notre-Dame. He is Vice-President of the Com- monwealth Legal Education Association, Joint General Editor of the Law Reports of the Commonwealth,andamemberoftheExecutiveCommittee of the Commonwealth Lawyers’ Association and the Trustee Committee of the Commonwealth Human Rights Initiative. COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH An Eastern and Southern African Perspective JOHN HATCHARD MUNA NDULO PETER SLINN cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521584647 © John Hatchard, Muna Ndulo, Peter Slinn 2004 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2004 isbn-13 978-0-511-21034-1 eBook (EBL) isbn-10 0-511-21211-9 eBook (EBL) isbn-13 978-0-521-58464-7 hardback isbn-10 0-521-58464-7 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS Preface page vii List of cases viii List of constitutions xiii List of statutes xxii List of other instruments xxiv Map xxv Introduction1 1. The democratic state in Africa: setting the scene5 2. Constitutions and the search for a viable political order 12 3. Devising popular and durable national constitutions: the new constitutions of the 1990s 28 4. Perfecting imperfections: amending a constitution 43 5. Presidentialism and restraints upon executive power 57 6. Enhancing access to the political system 99 7. Making legislatures effective 123 8. The judiciary and the protection of constitutional rights 150 9. The devolution of power to local communities 184 10. Developing autochthonous oversight bodies: human rights commissions and offices of the ombudsman 208 v vi list of contents 11. Seeking constitutional control of the military 240 12. Constitutionalism and emergency powers 276 13. Constitutional governance: the lessons from southern and eastern experience 308 Bibliography 325 Index 343 PREFACE This book has been some years in gestation. Conceived in an era of opti- mismafterthealmostmiraculousconstitutionaltransitioninSouthAfrica and the emergence of a new democratic dispensation in other countries of eastern and southern Africa, our offspring has emerged from the delivery room in the summer of 2002 in an atmosphere clouded by serious threats to the practice of good governance in the region. The world’s press is full of pessimistic stories of the breakdown of the rule of law in Zimbabwe, once heralded as a model for African development, and of the regional prospect of disastrous famines exacerbated by evidence of governmental corruption and incompetence. We hope to throw some light, from our particular legal perspective, on Africa’s continuing quest for sustainable good governance and development. In the process of writing, we have incurred many debts of gratitude to our fellow workers in the field of law and policy in Commonwealth Africa and to the institutions which have sustained us during our collective labours. It would be invidious to identify particular individuals, other than to record our warm appreciation of the support and forebearance of Ms Finola O’Sullivan, Ms Jenny Rubio and their colleagues of the Cambridge University Press and of the patience of our respective families. In general we have been able to include materials available to us as of 1 August 2002, although we have been able to make some reference to the Report of the Constitution of Kenya Review Commission, which appeared in mid-September 2002. John Hatchard, Muna Ndulo and Peter Slinn vii CASES Attorney-General v Kasonde and Others [1994] 3 LRC 144 144 Atternal-General v Alli [1989] LRC (Const) 474 176 Attorney-General v Malawi Congress Party and Others (unreported, MSCA Civil Appeal No. 22 of 1996) 250 Attorney-General of the Republic of Cyprus v Mustapha Ibrahim (1964) CLR 195 250 Austin and Harper v Minister of State (Security), 1986 (2) ZLR 28 295, 296 Austin & Harper v Chairman of the Detainees Review Tribunal [1988] LRC (Const) 532 298 Banana v Attorney-General [1999] 1 LRC 120 86 Barlin v Licensing Court of the Cape, 1924 AD 472 297 BishopvRoadServicesBoard,1956R&N23 297 Bongopi v Chairman of the Council of State, Ciskei, 1992 (3) SA 250 177 Bull v Minister of State (Security), HC-H-308-86 (unreported, High Court of Zimbabwe, 1986) 302 Catholic Commission for Justice and Peace in Zimbabwe v Attorney- General, 1993 (2) ZLR 442; 1993 (4) SA 239; [1993] 2 LRC 279 46, 176, 319 Certification of the Constitution of the Republic of South Africa, 1996, 1996 (10) BCLR 1253 (CC) 40, 217 Chairman of the Public Service Commission v Zimbabwe Teachers Association [1997] 1 LRC 479 45 In re Chinamasa [2001] 3 LRC 373 169 Chipango v Attorney-General (1970) ZR 31 (HC); (1971) ZR 1 (SC) 300 Chokolingo v A-G of Trinidad and Tobago [1981] 1 All ER 244 (PC) 169 Chowdury v Bangladesh 41 DLR (AD) 1989, 165 54 viii list of cases ix Commercial Farmers’ Union v Commissioner of Police (Unreported, High Court of Zimbabwe, 2000) 59 Commercial Farmers’ Union v Minister of Lands, Agriculture and Resettlement (Unreported, Supreme Court of Zimbabwe, 2000) 59 Commercial Farmers’ Union v Minister of Lands, Agriculture and Resettlement [2001] 2 LRC 521 74 Commissioner of Police v Commercial Farmers’ Union [2001] 2 LRC 85 60 Crow v Detained Mental Patients Special Board, 1985 (4) SA 83 297 Dabengwa v Minister of Home Affairs, 1984 (2) SA 345; [1985] LRC (Const) 581 301 Dale (1881) 6 QBD 376 300 Denmark, Norway, Sweden and Netherlands v Greece (3321-3/67; 3344/67) Report: November 5 1969 (ECHR) 277 De Vilheis v Municipalieit, Beaufort-Wes en Andere, 1998(9) BCLR 1060 (C) 143 Dow v Attorney-General [1992] LRC (Const) 623 159, 176, 179, 180 Dow v Johnson (1879) 100 U.S. 158 240 Duncan v Kahanamoku 327 US 304 257 DVB Behuising (Pty) Limited v North Western Provincial Government and Another, 2000 (4) BCLR 347 195 Ephrahim v Pastory [1990] LRC (Const) 757 319 Evans and Hartlebury v Chairman of the Review Tribunal (unreported, High Court of Zimbabwe, 1986) 297 Ex parte Attorney-General Namibia in re Corporal Punishment by Organs of State, 1991 (3) SA 76 159, 179, 319 Ex parte Grossman 267 US 87 264, 266 Federal Convention of Namibia v Speaker, National Assembly, 1994 (1) SA 177 143 Ferreira v Levin, 1996 (1) BCLR 1 (CC) 176 Gachiengo and Kahura v Republic (unreported High Court of Kenya, 2000) 237, 238 Goldberg v Minister of Prisons 1979 (1) SA 14 302 Granger v Minister of State Security, 1984 (2) ZLR 92 264 Greene v Home Secretary [1941] 3 All ER 388 301 Gupta v President of India AIR, 1982 SC 149 173 Hdhibandhu Das v District Magistrate of Cuttack, 1969 AIR SC 63 301 Hickman and McDonald v Minister of Home Affairs, 1983 (2) ZLR 180 298 x list of cases Holland v Commissioner of the Zimbabwe Republic Police, 1982 (2) ZLR 29 300 Hornal v Neuberger Products Ltd [1957] 1 QB 247 87 Hugo v President of South Africa [1998] 1 LRC 662 58 Ichhu Devi Choraria v Union of India (1981) 1 SCR
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