Constitutionalism and the Economy in Africa

Despite expectations that the celebrated second wave of constitutional democracy in the 1990s would facilitate economic development, Africa remains the continent with the highest level of poverty in the world. The fight against poverty hinges on a vibrant economy that creates jobs and income by generating enough revenue to enable the state to take pro-development measures. However, instead of the economic benefits that were supposed to accrue from the constitutional reforms of the last three decades (including entrenching a market economy), African economies remain weak, a situation that has been aggravated by the COVID-19 pandemic.

By focusing on the relationship between constitutionalism and economic growth in Africa, this volume addresses five questions: (1) In the constitutional reforms of the 1990s and thereafter, did constitutions also reflect the shift towards a market economy, and if so, in what manner? (2) Given that agriculture and extractive industries are the main sources of state revenue in many African economies, how are matters of land and other natural resources dealt with constitutionally? (3) Where the market economy is captured in a constitution, what is the state's relationship to that economy: interventionist or laissez-faire, or somewhere in between? Have constitutions also established a 'social' state that provides its citizens with the basic elements of a dignified life? (4) In the process of constitution-making and implementation concerning the economy, what impact has globalization had on constitutionalism and economic growth in Africa? (5) Finally, how has the relationship between constitutionalism and economic growth played out in practice? Is there a symbiotic relationship? Has constitutionalism led (or may do so) to greater economic prosperity?

Constitutionalism and the Economy in Africa offers a range of comprehensive arguments and case studies that will be of interest and use to academics, post-graduate students, judges, lawyers, economists, and policy makers involved in the economic role of the State, the impact of globalization, and the constitutional foundations for land and natural resources exploitation.

Charles M. Fombad, Director, Institute for International and Comparative Law in Africa,Nico Steytler, South African Research Chair, Dullah Omar Institute of Constitutional Law, Governance and Human Rights

Charles M. Fombad is a professor of law and Director of the Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria. Besides South Africa, he has taught in universities in Cameroon and Botswana. He has published very widely on issues of constitutionalism in Africa and has won several awards for his research, the latest being the Chancellor's Award for Research in the University of Pretoria for 2021. He has also acted as a consultant for several international organisations such as the African Union and International IDEA (Institute for Democracy and Electoral Assistance).

Nico Steytler is a professor of public law and the South African Research Chair in Multilevel Government, Law, and Development at the Dullah Omar Institute of Constitutional Law, Governance and Human Rights of the University of the Western Cape. He was a technical advisor to the Constitutional Assembly during the drafting of the 1996 South African Constitution. He was a member of the South African Municipal Demarcation Board (2004-2014) and a commissioner of the Financial and Fiscal Commission (2013-2017). He has provided expert advice on multilevel government internationally in South Sudan, Sudan, Trinidad and Tobago, Solomon Islands, Yemen, Democratic Republic of Congo, Ethiopia, Kenya, Zimbabwe, and Nepal.

Introductory Remarks, Trevor Manuel
Introduction, Nico Steytler and Charles M Fombad
Part I: Concepts and Context
1. Constitutionalism and the Economy: Concepts and Questions, Nico Steytler
2. Relationships between the Economy and Constitutionalism in Sub-Saharan Africa, Ramos Emmanuel Mabugu
3. Constitutional Law and the Economy: Comparing Liberal Market Orders, Stephan F. H. Ollick
Part II: Constitutionalising a Market Economy
4. Comparative Overview of Measures and Devices to Shape the Economy in Some Modern African Constitutions, Charles M Fombad
5. The Unravelling of the Constitution, Economy and Constitutionalism in South Africa, Nico Steytler
Part III: The Constitutional Framework for Land and Natural Resources
6. Protecting the Land, Protecting the Resources: A Comparative Assessment of Constitutional Protections within Kenya, Sudan, and South Sudan, John Hursh
7. The Political Economy of Post-Colonial Constitutionalism in Southern Africa, Heinz Klug
8. Land, Conflict and the Economy: The Role of the Constitution in Addressing the Land Issue in Post-Independence Zimbabwe, Makanatsa Makonese
9. Custodial Resource Holding as an Expression of Constitutional and Economic Intent in Africa, Hanri Mostert
10. Namibia s Resource-Based Economy: Protection vs Exploitation of Nature, Henning Melber
Part IV: The Constitutional Framework for the State s Role in the Economy
11. The New Economic Empire of the Egyptian Military: A Lesson in Blurred Lines and Constitutional Transgression, Sherif Elgebeily
12. Determining the Jurisdiction of Regional States in Promoting Investment in Ethiopia: A Constitutional and Practical Inventory, Solomon Negussie
Part V: Impact of Globalisation on the Economy and Constitutionalism
13. Taming the Spectre of Unsustainable Public Debt in Africa: A Heightened Role for Constitutions, Adem Kassie Abebe
14. The Turn to Global Constitutionalism at the WTO and its Impact on African Constitutionalism, Eva Maria Belser
Part VI: General Conclusion
15. Constitutionalising the Market Economy and the Quest for Constitutionalism, Nico Steytler