oa Comparative and International Law Journal of Southern Africa - Protecting constitutional values in Africa: a comparison of Botswana and Cameroon



The protection of constitutional values through the control of the constitutionality of laws is without doubt one of the most central problems of modem constitutional law. This is a problem that is solved in different ways in different countries. This paper examines two countries, Botswana and Cameroon, who, because of their unique historical backgrounds and legal systems, provide two interesting contrasting approaches. The objective is not merely to observe and explain any similarities and differences but also to see, from the perspective of a comparative constitutionalist, what lessons can be learned. 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 provide 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 work but because, it is submitted, it was never designated to work. It is shown that the Constitutional Council model remains an aberration in the modern world. Our analysis does suggest some relationship between control of constitionality, the political environment and the legal culture. There can hardly be an effective control against the violation of constitutional norms and values in a system designed on a Frensh Civil Law culture that expresses and reproduces a low level of inter-constitutional 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 inherrited 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 absense 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. Nevertheless, if it is accepted as legitimate to establish in the constitution some guarantees to protect citizens, it must also be accepted as legitimate to build into the constitution all the necessary institutional measures to ensure that these guarantees are effective; it is hardly reasonable to want the aim while avoiding the proper ways to get there. The main lesson from this comparative review is that if the values enshrined in a constitution are to be effectively enforced, then resort to courts of law, whether ordinary or special, which are accessible to all citizens, is unavoidable. On the other hand, any system of control of constitutionality of laws, which makes the control to depend on the goodwill of the lawmaker, is a sham.


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