The Demand for Power Diffusion: A Case Study of the 2005 Constitutional Referendum Voting in Kenya

Recent studies on the history of economic development demonstrate that concentration of power on a monarch or a ruling coalition impedes economic growth and that institutional changes that diffuse power, though beneficial to the society in general, are opposed by some social groups. In November 2005, Kenyans rejected a proposed constitution primarily because it did not reduce the powers of the executive to any significant degree. Using data of voting patterns in the constitutional referendum and following the rational choice framework, I estimate a model of the demand for power diffusion and demonstrate that groups voting decisions depend on expected gains and likelihood of monopolizing power. The results also reveal the importance of ethnic divisions in hindering the power diffusion process, and therefore the study establishes a channel through which ethnic fragmentation impacts on economic development.

The Political Economy of Constitutional Choice: A Study of the 2005 Kenyan Constitutional Referendum

Recent studies of the linkages between the wealth of nations and the institutions of governance suggest that concentrating political power in a monarchy or a ruling coalition impedes economic growth and, moreover, that while power-diffusing reforms can enhance the wellbeing of society in general, opposition by groups benefitting from the status quo is predictable. In November 2005, Kenyans rejected a proposed constitution that, despite promises made by their new chief executive, would not have lessened the powers of the presidency. Using a unique, constituency-level dataset on the referendum vote, we estimate a model of the demand for power diffusion and find that ethnic groups' voting decisions are influenced by their expected gains and losses from constitutional change. The results also highlights the importance of ethnic divisions in hindering the power-diffusion process, and thus establish a channel through which ethnic fragmentation adversely impacts economic development.

The Am ha-Aretz, the ancient Hebrew parliament : a chapter in the constitutional history of ancient Israel

by Mayer Sulzberger

Constitutional Review and Democratic Consolidation: A Literature Review

This paper reviews the literature on the prevalence of constitutional review across the world, and particularly in emerging democracies, during the last two decades. Two major questions should be addressed in this regard. First, why has the judiciary been empowered and what factors affect judicial activism? Second, does constitutional review ensure an effective self-enforcing function? In sum, the literature shows that constitutional review can make democracy self-enforcing if there is sufficient competition among political parties or between the legislature and the executive branch of government. In a more sophisticated case, political balance within the court can also ensure the observance of court decisions.

Kenya after the 2007 "post-election violence" : constitutional reform and the National Accord and Reconciliation Act

Immediately after the announcement of the re-election of President Kibaki on the evening of 30 December 2007, Kenya was thrust into the worst civil unrest experienced by the country since independence – a development that became known as the "Post-Election Violence" (PEV). However, after a subsequent process of reconciliation, the PEV came to an end within a relatively short period. The present-day politics of Kenya are being conducted within the framework of a provisional Constitution that took shape through peaceful mediation. How did Kenya manage to put a lid on a period of turmoil that placed the country in unprecedented danger? This paper traces the sequence of events that led to mediation, explains the emergency measures that were needed to maintain law and order, and indicates the remaining problems that still need to be solved.

Jurisdição constitucional e política : interpretativismo, não-interpretativismo e suas alternativas políticas e jurídicas : Teoria estética ? Estudo da obra Contemporary constitutional lawmaking de Lief H. Carter / Marcio Nunes Iorio Aranha Oliveira. --

Inclui notas bibliográficas.

Brief for Amici Curiae Scholars of the Constitutional Rights of Children in Support of Respondent Edith Windsor Addressing the Merits and Supporting Affirmance

This amicus brief filed by Scholars of the Constitutional Rights of Children turns the spotlight on children in same-sex families. The brief enumerates the ways Section 3 of DOMA impairs children's interests by denying federal recognition of their parents' marriages.

Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage. This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm. States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction.

Translations of the Ottoman constitutional laws: the Wilayet Administrative Law, the Municipal Law and various other laws

Ottoman constitutional law of the 7th Dhil Hujjah, 1293 AH [December 24, 1876 AD] as amended. -- Regulations of the Chamber of deputies. -- Regulations of the Senate. -- Provisional law of administration of wilayets of the 13th March, 1329 AH [March 26, 1913 AD] as amended. -- Municipal law of the 27th Ramadhan, 1294 AH [October 5, 1877 AD] as amended. -- Law regulating chambers of commerce and industry, dated the 31st May, 1326 AH [June 13, 1910 AD]. -- Provisional law of expropriation on behalf of municipalities dated the 21st Kanun Thani, 1329 AH [February 3, 1914 AD]. -- Regulations of expropriation for public purposes, dated the 24th Tashrin Thani, 1295 AH [December 6, 1879 AD] as amended. -- The Press law of the 16th Tamuz, 1325 AH [July 29, 1910 AD] as amended.

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.

The future of the Eurozone and the role of the German Constitutional Court. Research Papers in Law, 05/2012

[Introduction.] Necessary reforms towards a deepened and increased European shaped economic, financial and budgetary policy, paraphrased with the term “fiscal union”, could possibly reach constitutional limits. In its EFSF judgment1, the German Constitutional Court, following the Lisbon judgment in which certain government tasks were determined as being part of the “constitutional identity”2, connected the budget right of the parliament via the principle of democracy to the eternity clause of Art. 79 para 3 Basic Law. A transfer of essential parts of the budget right of the German Bundestag, which would be in conflict with the German constitution, is said to exist when the determination of the nature and amount of the tax affecting the citizens is largely regulated on the supranational level and thereby deprived of the Bundestag’s right to disposition. A reform of the Economic and Monetary Union that touches the core of the budget right can, according to the German Federal Court, with regard to Art. 79 (3) of the Basic Law only be realized by way of Art. 146 of the Basic Law, thus with a new constitution given by the people that replaces the Basic Law.3