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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Protecting constitutional values in Africa: a comparison of Botswana and Cameroon
Author:Fombad, Charles MangaISNI
Year:2003
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:36
Issue:1
Pages:83-105
Language:English
Geographic terms:Cameroon
Botswana
Subjects:access to justice
judicial review of legislation
constitutions
Abstract:The protection of constitutional values through the control of the constitutionality of laws is without doubt one of the most central problems of modern constitutional law. This is a problem that is solved in different ways in different countries. This paper examines two countries, Botswana and Cameroon, which, because of their unique historical backgrounds and legal systems, provide two interesting contrasting approaches. An examination of the sharply contrasting methods for controlling the constitutionality of laws followed by an evaluation of the differences and similarities of the approach adopted in the two countries provides many useful lessons. It can be argued that the Cameroonian Constitutional Council model by contrast with the Botswana approach of control through the ordinary courts has not worked, not necessarily because such models do not work but because, it is submitted, it was never designed to work. It is shown that the Constitutional Council model remains an aberration in the modern world. There can hardly be an effective control against the violation of constitutional norms and values in a system based on a French civil law culture that expresses and reproduces a low level of inter-institutional trust, particularly the obsessive fear of a 'government of judges'. In all this lies a major dilemma, that of coping with legal systems and institutions inherited or copied from former colonial powers. Rights consciousness, which in the dominant common law tradition in Botswana implies an individual's right to resort to the courts, is not highly developed in the dominant French civil law tradition that prevails in Cameroon. With the exclusion of the judiciary from judicial review and the absence of any avenue for individual citizens or minorities to challenge the constitutionality of dubious laws, it is no surprise that unlike Botswana, street demonstrations have become the only avenue for Cameroonians to express their frustration and make their views heard. Notes, ref., sum. [Journal abstract, edited]
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