African Training and Research Centre in Administration for Development Hanns Seidel Foundation Original: French Pan African conference of presidents of constitutional courts and similar institutions on strengthening the respect for rule of law and democracy through constitutional justice Theme: How can constitutional justice enhance a more profound rooting of democratic values and Rule of law? Concept paper 26 28 November 2012 Marrakech - Morocco
Pan African Conference of Presidents of Constitutional Courts and similar Institutions on strengthening the Rule of Law and Democracy through Constitutional Justice How can constitutional justice enhance a more profound rooting of democratic values and Rule of law? Justification: The political changes going on in Africa since the past two decades have affected the overall dynamics of the activities of the States. This has led to the creation of new institutions and changes in the order of the hitherto existing legal mechanisms in these countries and in terms of what has been referred to as political governance. These profound changes being witnessed at both the institutional and cultural levels, in most countries of the continent is a sign of the people s aspiration to power and to new and different approaches in their areas of competence and political practices. It also operates as a testimony of the willingness of these countries to adopt the direction and movement of history, albeit with temperaments arising from the diversity and variability of contexts, situations and idiosyncrasies. This leads some observers into believing that Africa is indeed at a crucial turning point of its political and legal history, beyond the regressions that sometimes negative some advances and optimisms however justified, necessary and also legitimate in this part of the world. But whatever may be the situation with respect to these transformations, no one can doubt the repeated attempts of these countries to move towards building institutions that will be compatible with the new and resurgent Africa. It is in the scheme of these significant changes that fit the various political reforms, which today give rise to the almost universal adoption of the principles and values of democracy by these states. These principles serve as mechanisms and technologies necessary for CAFRAD/Hanns-Seidel Foundation_26 28 November 2012 2
the deep structuring of the game of power and power relations in the state as well as within the institutions that embody it. Constitutional justice reflects, in this regard, one of such means. In a number of countries, it comes in the form of creating autonomous judicial institutions and assumes the form of Constitutional Court. In others, however, it takes the form of Constitutional Council with an advisory function when it is not simply diluted in a Supreme Court with a constitutional arm or a transitional institution specifically created to act as constitutional court on special occasions. But regardless of the phase and the stage of the construction of the constitutional justice in Africa and beyond with real or imagined uniqueness, it goes without saying that it is gradually taking shape as a necessary element of the institutional device of African states. The question that must, nevertheless, arise in this movement is how these institutions, henceforth important, could effectively contribute to the rooting of a solid democratic and political culture, such as to make of the state of law, an element of political and citizenship culture in Africa. Remarkable progress has been noticed in a number of these countries. In others, conversely, we are still starting. This means that constitutional justice is built patiently but decisively, despite the different rates observed from one country to another, and despite the mixed fortunes to which it is sometimes subject on the occasion of some disputes. Moreover, constitutional justice is built in Africa, in a context where the national legal systems, may sometimes face disqualifying competition of an international context, not always compatible and favourable with the principles on which should be based the dispassionate exercise of their mission. The intervention of these institutions in contentious electoral disputes, for example, alongside other non-litigious and non-jurisdictional institutions, sometimes leaves much to be desired. Thus these institutions, rather than being complementary CAFRAD/Hanns-Seidel Foundation_26 28 November 2012 3
to one another, engage in unfortunate competitions with one another to the extent of generating malfunctions and mistakes with serious consequences for the effort of building a democratic and political culture yet desired. These problems sometimes arise from a misinterpretation of the rules and hierarchical relations which are, besides, capable of guaranteeing not only their legitimacy but also their credibility in the opinions of both national and international public sometimes insufficiently informed or choose to ignore the reality of rules and operational mechanisms of the concerned states. It is in consideration of the foregoing that the African Training and Research Centre in Administration for Development (CAFRAD), Hanns-Seidel Foundation of Germany, the Venice Commission and other partner institutions, have taken it upon themselves to organize a pan-african conference on the theme of the all-important task of strengthening the operational base of democracy and rule of law through constitutional justice. Main objective: The main objectives of this conference are: 1. To create the forum that will enable the participants to compare notes based on their practical experiences and finally generate a reliable platform for cooperation and collaboration in order to ensure a better dispensation of constitutional justice at all levels of African states; 2. To enable practitioners of constitutional justice to identify the various bottlenecks that impair their performance; 3. To enable the various heads of institutions charged with the responsibilities of dispensing constitutional justice, as well as theorists and even general practitioners of law, to objectively assess and evaluate the progress made by States and to identify ways of thinking which are likely to enhance a culture of CAFRAD/Hanns-Seidel Foundation_26 28 November 2012 4
the rule of law and a better articulation of political and democratic game within the African states through constitutional justice; and 4. To provide an authentic African reflection of constitutional justice, its complexities and aspirations, both in the context of building a legal culture that complies with the democratic aspirations of African people and countries as well as in the prospect of a better rooting of values that promotes the democratic ideal. Expected results: 1. It is expected that at the end of the conference participants will have a more profound understanding of the workings of the constitutional justice and will be able to adopt a better approach in the performance of their duties. 2. It is further expected that this forum will afford the participants the opportunity to establish a network of both African and non-african experts in the field of constitutional justice. 3. The forum will also enable the participants to set up an African commission of "Venice" and then strengthen the existing cooperation amongst the various African constitutional jurisdictions. 4. They will also set up state institutions and or reform existing ones in order to effectively monitor and evaluate the observation of the rule of law every activity. Expected audience: This conference is organized primarily for the following: 1. Presidents of constitutional courts of African countries; 2. Academics interested in the theoretical aspects of constitutional justice; 3. Constitutional law practitioners; CAFRAD/Hanns-Seidel Foundation_26 28 November 2012 5
4. Other Jurists and lawyers; and 5. Legal advisers of the various departments/sections and political parties; 6. Parliamentarians; 7. National associations that see to the observance of ruler of law through constitutional law as well as all interested persons and institutions. Themes to be addressed: 1. Emergence and topicality of constitutional justice in Africa 2. Constitutional justice and democracy: with inputs and which linkage? 3. One assessment or more of constitutionality? Is there a unique or several forms of constitutionality assessment? What is the purpose and what are its characteristics? 4. Constitutional justice and electoral litigation: management of electoral disputes by the constitutional courts of African countries in order to sanitise elective democracy and ensure a better rooting of the rule of law. 5. Some national experiences of practice of constitutional justice. 6. Prospects of inter-jurisdictional cooperation in Africa: what strategies for what purpose? Methodology: The conference will take place in plenary sessions and will be facilitated by resource persons. These people are well known persons endowed with expertise in the field of law and constitutional justice in both their country and internationally. They will introduce the debates and coordinate exchange of view1s between participants. Attendees can use all the technical aid put at their disposal. They can also use power point. CAFRAD/Hanns-Seidel Foundation_26 28 November 2012 6
Registration fees Participants will be expected to pay U.S. $ 300 or 250 Euros each. Accommodation and meals will be ensured by the Hanns Seidel Foundation of Germany. NB: communications should be sent to the secretariat of CAFRAD two weeks before the date of the beginning of the conference and they will subject to a special publication by CAFRAD. Sponsorship: Hanns-Seidel Foundation (Germany), our partner, will sponsor the participants' stay, that is to say accommodation and meals from Sunday evening 25 th November to Wednesday evening 28 th November 2012. Date: 26 28 November, 2012 Venue: Marrakech (Morocco) Duration: Three days Languages: French and English For further information about the forum or CAFRAD, please contact us at the address below: CAFRAD Bd. Mohammed V, Pavilion International, Tangier Morocco Tel: +2125 39 32 27 07 or: +2126 61 30 72 69 Fax: +2125 39 32 57 85 Email: stephmonney@cafrad.org; mmonney@justice.com; cafrad@cafrad.org Web site: www.cafrad.org CAFRAD/Hanns-Seidel Foundation_26 28 November 2012 7