oa Comparative and International Law Journal of Southern Africa - Undermining the constitution by constitutional means; some thoughts on the new constitutions of Southern Africa



The 1990s has seen a transformation of the constitutional order in southern Africa with new constitutions in Namibia (1990), Zambia (1991), Lesotho (1993), South Africa (1994) and Malawi (1994) which all provide for the protection and promotion of fundamental rights and the rule of law; multiparty politics and the establishment of democratic institutions. Whilst this is encouraging, the question remains whether, given the chequered history of constitutionalism in Africa, these 'new constitutions of southern Africa' (NCSA) are equipped to counter executive attempts to undermine their operation and effectiveness. This article seeks to provide at least a partial answer by examining the NCSA in three key areas: amending the constitution; use of the presidential pardon; and use of emergency powers. In doing so it will compare and contrast the experience of Zimbabwe where executive action in these areas has arguably led to the 'undermining of the constitution by constitutional means'.


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