CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.

Dispossessing bare life: Towards a theoretical framework for examining power relations through economic development at the 2010 FIFA World Cup in South Africa

In the past twenty years an increasing number of Global South nations have vied for the rights to host prestigious and expensive sport mega events. This trend requires significant reflection given the enormous economic costs of these events, which often produce little capital gain for the host nation (Whitson & Horne, 2006). Furthermore, sport mega events are often utilized for their symbolic capital (Belanger, 2009), which sometimes manifests through forcing people from their land for the sake of “beautification” (Davis, 2006). In this project, then, I asked how technologies of power were utilized by FIFA, corporate stakeholders, and the South African government to control people who were marginal to, or impeded the success of, the World Cup in Nelspruit, South Africa. This project consisted of two parts: the first involved constructing a theoretical framework for better understanding power as it operates through sport mega events in general. To this end I employed Marxian notions of the ordering of physical space, Foucauldian conceptions of sovereignty and governmentality, and Agamben’s (1998) state of exception to determine how particular bodies are constituted and controlled through sport mega events. In the second part, I applied this theoretical framework to the events in South Africa to better elucidate how people became displaced and killed because of the 2010 FIFA World Cup. I used South African popular news and documentaries as empirical evidence and conducted a discursive analysis of said news media. Through this coverage it became apparent that the mega event created the conditions in which new forms of rogue sovereign partnerships could arise through a historically and spatially contingent process of capitalism. The rogue sovereigns’ para-juridico-political orders, the discourses and practices of accumulation by dispossession as a tactic and effect of govermentality, and other historical non-capital subjectivities such as racial identity, all contributed to constituting Agamben’s state of exception in which people could be displaced, killed or left to die in the events surrounding the World Cup.